Commentaries on the Eighth Circuit’s Amerind Decision

We’ve received several comments about the case worth reposting here.

From an Amerind rep:

Amerind’s policies require Amerind to pay all judgments rendered against its policyholders. For over 25 years, Amerind has consistently honored this commitment.

The United States Housing and Urban Development has also approved and recognized Amerind as the only authorized insurance entity for Indian country.

The Eighth Circuit’s decision applies in a very narrow set of circumstances—where suit is brought directly against Amerind rather than the policyholder.

From Richard Monette:

It seems that to the extent Amerind is in fact “self-insuring” it is indeed acting more as a government than a business and that such activity may be cloaked in the the charter Tribes’ immunity. However, it also seems that to the extent that Amerind is not self-insuring, it is indeed acting more as a business than a government and may not carry the charter Tribes’ immunity beyond the governing territories of those Tribes. Is a company not chartered by Turtle Mountain but doing business in Turtle Mountain really “self-insuring”? Note to Turtle Mountaineers: if you wish for these types of catastrophes to be covered by insurance, your tribe/housing authority must establish its own section 477 self-insurance entity, as each tribe should, the likely original intent of the law.

And from Richard Phelps (previously and erroneously noted as Richard Monette):

I am a firm believer in sovereign immonity but cases like this that push the limits, put that immunity in grave danger.
Also why would you purchase insurance from a company that can not be sued if it refuses to pay a claim. I guess State farm would like this deal.

And a link to a commentary by Gabe Galanda on his blog. His post is titled, “Amerind Should Clearly Waive Its Immunity in Insurance Contracts.”

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

One Response to Commentaries on the Eighth Circuit’s Amerind Decision

  1. vance gillette says:

    Re: turtle mt. indians burned in fire. The injured persons initially sued the
    t mt housing authority and added in the insurance company, then dropped
    the tmt h. a. Regardless, the Tribal agency paid for insurance. This
    raises the questions of WHO can waive immunity, and WHO can raise an immunity defense. For example, insurance policies for north dakota casino’s say: the insurance co. agrees to pay a judgment to the extent of policy limits, and the INSUR CO cannot raise a tribal immunity defense.

    Problem: despite the above language, the insurance co. — attorneys raise
    tribal immunity as a defense. For example, in casino injury cases the insurance co. defends based on tribal immunity. A related problem is some tribal courts dismiss on tribal immunity without considering the policy
    terms, and conflict issue, e.g. the insurance co. attorneys cannot serve two masters: the insur. co. and casino (insured). Cumis counsel should be appointed to represent the insured, to avoid conflict problems. In other words, some law firms milk cases for fees by using tribal immunity to enrich the insur. co. who does not have to pay out when they should.

    Remedy. The real issue is whether Indian tribes want to provide a remedy —
    when they have insurance. For example, the Turtle Mt. Housing Authority could waive immunity to the extent of insurance coverage. The Navajo Tribe has done this for years. It appears the T MT Housing Authority did not do a limited waiver of immunity so the plaintiffs sued AMERIND. The result is tribal members dies in a fire and their families are left with zilch. Amerind does not have to pay for damages and pockets the substantial insurance payments.

    The Eighth Circuit decision gets carried away with tribal immunity and
    ignores the facts and insurance policy, noted above. The people of T. MT Band of Chippewa Indians can resolve the issue without relying on federal court. This is by a limited waiver of immunity, especially since they already paid for the insurance coverage (personal injury and wrongful death).

    vance gillette attorney in north dakota

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