Tribal Justice Not Always Fair: Pechanga Demonstrates That, Barona too

Pechanga had families on the disenrollment committee that were part of a group that tried to split up the tribe rule on families they publicy admitted they wanted out of the tribe. Fair, or not fair? Why give a tribe that mistreats their people the reward of Billions of dollars?

Tribal justice not always fair, critics contend
Reservation's courts include members as lawyers, judges
By Onell R. Soto

UNION-TRIBUNE STAFF WRITER
December 17, 2007
Millions of people enter Indian reservations each year for work or play, unaware they might be leaving behind things they take for granted elsewhere, such as the right to sue if injured.
NELVIN CEPEDA / Union-Tribune
Nellie Lawrence of San Carlos displayed photos taken when she was hospitalized after she was knocked down by a man running in Barona's casino. The deals that California Indian tribes signed with the state for Las Vegas-style casinos require them to pay “all legitimate claims” from people who have been injured.
Critics say not all tribes are living up to the spirit of such agreements, and some lawyers say the system is rigged against them and their clients.
The agreements with the state require tribes to waive sovereign immunity – the right of governments to be shielded from lawsuits – but the way that happens varies.

Many tribes have retired state judges decide disputes. Others direct complaints to tribal courts. �It's not fair,� said lawyer Bonnie Kane, who sued in state court when the Barona tribal court rejected a claim by Nellie Lawrence, 93, of San Carlos after she was knocked down by a man running in the tribe's casino. Kane doesn't object to tribes having courts to hear these matters. But she says the process should have guarantees of fairness, as other courts do.


Independent judiciaries
About half of the more than 560 Indian tribes in the United States have courts, and maybe one-tenth of those use their tribal council as the judges, said Vincent Knight, executive director of the federally funded National Tribal Justice Resource Center in Boulder, Colo. �That doesn't necessarily mean they're going to be unfair,� Knight said.

Tribal courts nationwide hear a variety of cases. Some have sophisticated systems with appeals courts and independent judiciaries. It is up to each tribe to decide how that is set up. In Lawrence's case, a state appeals court found in July that it is up to the tribe to decide how it deals with injured patrons. In October, the state Supreme Court declined to take the case.

A review by The San Diego Union-Tribune of more than a dozen lawsuits filed against tribes in San Diego courts in the past four years indicates that Lawrence's experience is not unusual. Federal and Superior Court judges throw out most suits when tribal leaders claim sovereign immunity.

Many personal-injury lawyers don't bother with people claiming they were hurt on tribal property, said Mark Merin, a Sacramento lawyer who helped draft ordinances that tribes use to deal with such situations. �They are basically out of luck,� Merin said. �The law is, (the tribes) have absolute immunity.� The issue goes beyond personal injury lawsuits in state and federal courts. Employment lawsuits against tribes often are tossed, as are other suits in which people claim they were injured by tribal employees.

It goes beyond California.

San Diegan Barbara Linehan, 52, was killed July 3, 2004, when the minivan she was driving from California to Texas was struck by a wrong-way, drunken driver on Interstate 10 outside Tucson. The driver of the Cadillac Escalade that plowed into Linehan's van pleaded guilty to manslaughter and was sentenced to more than 10 years in prison.

An Arizona state judge refused to hear the lawsuit by Linehan's husband, Gary Filer, against the tribally-owned Desert Diamond Casino, where the suit claims the driver got drunk and a valet brought him his car. An appeals court backed the judge's decision. But the appeals court said the law it upheld �arguably is divorced from the realities of the modern world.� Filer, who lost a leg in the crash, is frustrated. �There's some responsibility the casino needs to shoulder here,� Filer said. He is pursuing the case in the courts of the Tohono O'odham Nation, which owns the casino, where his lawyer is hopeful he'll get a fair hearing.

Foxwoods' system
Some tribes have developed sophisticated court systems.

People who are injured at Connecticut's Foxwoods Resort Casino � which claims it is the largest in the world � can sue at the Mashantucket Pequot Tribal Court, established in 1992.

Chief Judge Thomas Weissmuller is appointed by the tribal council, but he is not a Pequot tribal member, and his decisions and those of two other trial judges � and three appeals judges � aren't subject to approval by the tribe. �If you are responsible in setting up your court, you're going to have a good, neutral judicial system,� Weissmuller said. He is sometimes consulted on the effect new laws might have on the court, which hears about 400 cases a year, but he is not part of the tribe's legal department, whose lawyers sometimes appear before him.

Intertribal council
Formal tribal court systems are a relatively new thing in San Diego County.

In 2005, the Escondido-based Intertribal Court of Southern California was established, with a judge going from reservation to reservation to hear cases on behalf of 11 local tribes.

The Rincon Band of Luise�o Indians recently decided to use the intertribal court, instead of arbitrators, to hear disputes from patrons of its Harrah's Rincon casino, tribal Chairman Vernon Wright said. �It's a real practical way to try to bring a little bit of balance,� Wright said. On other issues, the tribal council has sat as the tribal court, but the advent of the intertribal court has changed that, partly because the council is busy but also as a matter of fairness, Wright said. �At a certain point, you have to ask yourself, 'Is this really an independent review?' � he said.

Intertribal Court Chief Judge Anthony Brandenburg, a lawyer and retired Superior Court commissioner, takes cases delegated to him by tribal leaders, mostly about disputes between tribal members such as child custody. Brandenburg is not involved with Barona's court, but he didn't see anything wrong with it. Ancient traditions can be difficult to understand, Brandenburg said, like the idea that a tribal council can have legislative, executive and judicial roles. �That's the way Indian country's been set up since time immemorial,� Brandenburg said.

Barona case
One who doesn't understand is lawyer LaToya Redd, who represents the woman who claims she was bitten by bed bugs at the Barona tribe's hotel two years ago. The woman sued the tribe in August in El Cajon Superior Court, claiming the tribal court couldn't fairly hear the case because Clenney, the tribe's lawyer, acted as a judge.

Redd argued the gambling deal the tribe signed allows lawsuits in state court. �California intended for there to be 'fair and prompt adjudication,' not 'We can do whatever we want,' � Redd said. Clenney said she doesn't make decisions and doesn't consider herself a judge. She said fewer than 10 cases have gone to the council, sitting as tribal court, in the past seven years, half of which have been denied. She said a few resulted in rulings against the casino, and the rest in settlements.

While Barona directs suits to its tribal court, other tribes deal with patrons in different ways, depending on their philosophy and the deals they signed with the governor allowing them to operate casinos. The initial compacts signed in 1999 called for $5 million insurance policies and simply said tribes would waive immunity from suit, without saying where such suits could be heard.

Recent compacts, including those signed by Pala, Pauma, Viejas and Sycuan, call for $10 million insurance policies and for disputes to be settled in state court or through arbitration by retired judges. Giving people a recourse if they are hurt makes business sense, said Jerry Turk, who manages the Pala casino, where disputes can go to binding arbitration. �It's fair for the guest,� Turk said. �It's fair for the casino.�

The Campo tribe, operator of the Golden Acorn casino in East County, said patrons could go to arbitration, but only if they followed the casino's rules. An appeals court ruled last year that the tribe did not follow its rules when it denied arbitration to Celeste Bluehawk, a woman who said she slipped on a wet floor.

That case was significant because justices found that the compacts tribes signed with the governor meant state courts could intervene in such disputes under certain circumstances, like when the tribe doesn't do what it says it will do.

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