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REGIONAL REPORT : Tribes' Immunity Sparks Criticism : Law: Accident victims on Indian reservations are finding that that they cannot recover civil damages. While some dislike the exemption, others say cultural identity is at stake.

July 29, 1991|ALAN ABRAHAMSON | TIMES STAFF WRITER

Along Lake Havasu, on the California side of the Colorado River in San Bernardino County, the Chemehuevi tribe runs a resort, including a marina and restaurant that grosses $4 million a year, said Don Whetten, general manager of the businesses.

On the La Jolla Reservation, in the Pauma Valley north of Escondido, stands the Sengme Oaks Water Park, where Strickland was hurt three summers ago. The 6-year-old water park, general store and campground have a combined annual budget of $1.2 million and attract 150,000 people each year, said Steve Smith, tribal administrator.

What seems incomprehensible to outsiders pouring dollars into the reservations is why an Indian-run enterprise, concededly in business for profit, is untouchable in court when something goes wrong.

In Strickland's case, the boogie board she was riding on the slide slammed between her legs, bruising, tearing and permanently numbing her groin, according to court papers.

"They're up there making money on a slide or a bingo game or campsites or whatever else they have on all their Indian reservations. They make beaucoup bucks on all that," said Strickland, 35, a San Diegan who runs a day-care center. "Yet we can't sue them?"

Not successfully, according to files in state and federal courts across Southern California. Lawyers said most disputes end short of court.

Among dozens of cases in the files are these:

* Clara Clobes, an elderly Ventura cosmetologist, severely broke her hip while sitting down to play bingo a few years ago at the Santa Ynez Reservation. According to Orange County Superior Court files, she claimed that the chair she was sitting on broke, dumping her onto the parking lot and causing $12,000 in medical bills.

Within months, the case against the tribe was dismissed because it was immune. The case went on against an Orange County group that helped run the bingo games and its insurance company settled shortly before trial, said Clobes' Los Angeles lawyer, Howard J. Stechel.

* Jonna Lynn Keairns tried federal court in Los Angeles. She brought a sex discrimination suit against the Santa Ynez tribe, claiming she was fired because she had become pregnant. Three months later, U.S. District Judge Mariana R. Pfaelzer dismissed the suit, saying the tribe was immune. The case went no further, attorney Lila M. Porter said.

* William Long, a 42-year-old Rialto termite eradicator, drowned at the Havasu Landing docks. His family sued the Chemehuevi tribe for wrongful death and a San Bernardino Superior Court judge dismissed on grounds of immunity. The California 4th District Court of Appeal affirmed the dismissal.

"I believe we're all equal under the law, whether Italians, Irish, English or Indians," said George E. Long, an El Monte lawyer who brought the case on his brother's behalf. "Indians now are in the mainstream of society. As a result, I say, fine, let them have their marinas and golf courses and bingo games.

"The only thing I'm saying is let the people, no matter who they are, be able to have recourse against them if something goes wrong," Long said. "That's all."

What that attitude ignores, said tribal members and experts in Indian law, is that Indians have played, and still play, a unique role in American society. It is because of that unique status--Indians are the only minority to retain self-government--that the tribes need to remain immune from lawsuits, they said.

In 1831, the U.S. Supreme Court recognized that tribes are "domestic dependent nations," which exercise authority over their members and territories.

In a landmark 1940 case, the Supreme Court set forth in plain language the extent of tribal immunity: "Indian Nations are exempt from suit without congressional authorization."

Over the years, the court repeatedly has made it clear, most recently in an Oklahoma case it decided in February, that it has no interest in changing that view, saying it is up to Congress.

Congress has never seen fit to dispense with tribal immunity or to limit it.

Instead, Congress' "overriding goal" in Indian affairs, according to a 1987 U.S. Supreme Court opinion, has been the promotion of "tribal self-sufficiency and economic development."

To achieve that goal, the tribes must remain shielded from civil lawsuits, experts said. (They are, however, subject to criminal law.)

Though it is expected to provide governmental services, tribes do not have the sort of tax base other governments enjoy, said Art Bunce, an Escondido attorney who said he has represented virtually every tribe in the region. Tribes "have got to take steps to protect what they do have," meaning the developing businesses that fund services, he said.

In an accident lawsuit against a municipality, state or the federal government, the financial burden can be spread throughout the community through new taxes, Bunce said. Tribes do not have that ability and once lost, tribal property can never be replaced, he said.

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