Cook v. Avi Casino Enters. — Trouble?

The Cook v. Avi Casino Enterprises cert petition has a reasonable chance of being granted. There are a bunch of factors that support the petitioners, and a bunch that don’t.

The case involves dram shop actions against tribal casinos. I’d bet the wide majority of tribal casinos waive sovereign immunity in tribal court for these kinds of actions, but the Cook case and others usually involve a claim brought in state courts, where tribes have not waived their immunity. Interestingly, other than one Oklahoma case, all of the state (and now federal) courts have found that tribal sovereign immunity precludes these actions. Our discussion of the Oklahoma case, and at least three other state cases is here.

So there is a split of authority, but it’s not between federal circuits, which decreases the chance for review somewhat. And there is a Supreme Court case, Rice v. Rehner, a preemption case that held that there is little or no tradition of tribal sovereignty in the context of alchoholic beverage transactions. The petitioners are asking the Court to expand that holding to strike down sovereign immunity in state courts.

On the other hand, the petitioners are asking for a second chance at the pot, likely because they refused to bring a claim in tribal court. In short, these petitioners, who came onto the reservation on their own accord and conducted business with an Indian tribe, want the right to make a state court claim, and want that right to trump the available tribal court venue. Moreover, the Supreme Court might not be terribly interested in another tribal sovereign immunity case, especially since the state court cases are all decided based on state law, interestingly enough. Yes, it’s true, state courts also recognize tribal sovereign immunity.

This is an important question for gaming tribes, many of which have priced and acquired insurance to cover dram shop actions on the basis that these cases would be decided in tribal courts.

Finally, there is a decent argument that the tribal-state gaming compact relationship would be undermined by a decision eliminating or reducing tribal immunity in this context. Increasing the cost for tribes of doing business hurts state revenue sharing. One hopes the states recognize that.

This entry was posted in Author: Matthew L.M. Fletcher, gaming, Research, sovereign immunity, Supreme Court and tagged , , , , , . Bookmark the permalink.

5 Responses to Cook v. Avi Casino Enters. — Trouble?

  1. Brian says:

    I could be wrong, but I don’t think the car accident occurred on the reservation, so I don’t think “petitioners . . . came onto the reservation on their own accord and conducted business with an Indian tribe.” Not sure if that affects the analysis or not.

  2. Hmmm, maybe, but I assume the plaintiff bought the booze at the casino, which would be on the reservation.

  3. Bethany says:

    I don’t see how this is distinguishable at all from Kiowa–the tort facts make it a little more sympathetic than the action to collect on a promissory note, but the SCt held it didn’t matter whether the tribal enterprise was acting off rez in a commercial capacity. The greater scope for state jurisdiction in an alcohol action (even if the liquor laws aren’t preempted by the gaming compact) shouldn’t be relevant for the sovereign immunity question (although it’s true Oklahoma doesn’t seem to get that). Of course the SCt has found some weird ways to find an important undecided question before . . .

  4. Curt says:

    The case was filed in federal court under diversity jurisdiction. The plaintiff is a sober cyclist who was severely injured by an intoxicated tribal casino employee. Free drinks at a casino employee party, amputation, criminal charges, terrible facts, clear liability.

    The most remarkable thing is that it was defended by an insurance attorney. Why buy insurance if the insurance company is going to assert sovereign immunity? Waste of money, and defeats the purpose of the insurance — compensation for cases like these. Seems like the tribe was cheated.

  5. Candygirl says:

    If you could see what “Cook” has medically gone thru, you would understand he is but a shadow of what he once was, due to the injuries sustained by the intoxicated Tribal employee. He has suffered, his family has suffered, he’s lost wages for a lifetime and any compensation could not possibly be enough to cover the insuing infections, constant chair sores, not to mention the mental anguish. This man deserves a medal for keeping himself above ground with all he has gone thru.

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