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Fourth, the General Court must consider and confront the issue of tribal immunity. As a general rule, Indian tribes and tribal enterprises may conduct their affairs and commercial activities unfettered by law. One deprived of her property without due process or unconstitutionally arrested by an Indian tribe has no legal recourse. The family of an innocent bystander struck and killed by a tribal police vehicle in a negligent 90 mph hot pursuit cannot sue the tribe. A person suffering third-degree burns and disfigurement in a tribal casino developed under Senate Bill 410 could not sue the Indian tribe; and, could not sue any state building or local zoning official because neither would have had any say in or power over the development or construction of the casino. Indian
tribes may say those plaintiffs, those victims may come to tribal
court for justice. However, tribal courts have very limited jurisdiction,
cannot adjudicate many federal or state claims, cannot compel the
presence of parties who may be necessary for a fair and complete
adjudication of a dispute and do not allow for a trial by jury of
the nonmember's peers. Foreign Nations, true sovereigns, both at common law and now by federal statute, are liable for all damages legally caused by their commercial activities conducted within the United States. The United States Supreme Court has urged Congress to abrogate tribal immunity in whole or in part and to make Indian tribes subject to liability in the same fashion as foreign nations involved in commerce. Unless and until Congress abrogates tribal immunity, any tribal gaming compact should be conditioned upon a waiver of tribal immunity. Finally,
while not addressed herein, the Joint Committee should recognize
that Senate Bill 410 presents substantial questions concerning the
separation of powers constitutional mandate of Part I, Article XXX
of the Massachusetts Constitution. When the United
States Constitution was adopted, the individual states ceded power
to the federal government and were thereby "divested of virtually
all authority over Indian commerce and Indian tribes." Seminole
Tribe of Florida v. Florida, 517 U.S. 44, 62 (1996). States
therefore had no legal basis to regulate gaming on Indian lands.
See California v. Cabazon Band of Mission Indians, 480 U.s.
202 (1987). After the Cabazon decision Congress enacted the
Indian Gaming Rights Act ("IGRA") (codified at 25 U.S.C.
§2701 et seq.). IGRA has been described as "an example
of 'cooperative federalism' in that it seeks to balance the competing
sovereign interests of the federal government, state governments,
and Indian tribes by giving each a role in the regulatory scheme."
Artichoke Joe's, et al, v. Norton, et al, 216 F.Supp.2d 1084,
1092 (E.D. Calif. 2002). IGRA requires a state that allows Class III gaming to negotiate and then enter into a Tribal State compact allowing the otherwise permitted Class III gaming on Indian lands. If the state refuses, IGRA enables the tribe to sue the state in federal court and compel the state to negotiate a gaming compact. If no agreement is reached, IGRA purports to authorize the Secretary of the Interior to prescribe regulations under which the Tribe may conduct the Class III gaming without the state's consent. See IGRA §2710(d)(7). However the statute's definition of permitted Class III gaming on Indian Lands is predicated on the existence of a compact, an agreement between the two sovereigns, which necessarily requires two consensual parties. IGRA sec. 2710(d)(1). In Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), the United States Supreme Court held IGRA partially unconstitutional. Neither a tribe nor the federal government may sue a state in federal court to compel the state to negotiate a tribal-state gaming compact. Id. IGRA was intended
to balance the interest of states and tribes. United States v.
The Spokane Tribe of Indians, 139 F.3d 1297, 1298-1302 (9th
Cir. 1998). Since the Seminole decision struck down the ability
of tribes to compel compliance by states with IGRA, tribes argue
that IGRA must be struck in its entirety for frustration of its
obvious purpose. See, e.g., Spokane Tribe, 139 F.3d at 1298-1302.
If IGRA should be totally struck, Indian tribes would be able to
operate Class III gaming on Indian Land unfettered by any state
regulation. Apparently sympathetic to this view, the Ninth Circuit
Court of Appeals refused to enjoin a tribe from conducting gaming
prohibited by IGRA. Id. See also United States v. Seminole Tribe
of Florida, 45 F.Supp.2d 1330 (M.D. Fla. 1999); New York
v. the Oneida Indian Nation of New York, 78 F.Supp.2d 49 (N.D.
N.Y. 1999) (State may sue tribe to enjoin gaming not authorized
by existing compact). A. CLASSES
OF GAMING Class III gaming activities are those under consideration and are defined as "all forms of gaming that are not Class I gaming or Class II gaming." 25 U.S.C. §2703(8). Class III gaming encompasses slot machines, horse and dog racing, lotteries, casino games and banking card games. Under IGRA Class III gaming is lawful, inter alia, if "located in a state that permits such gaming for any purpose by any person, organization, or entity... and [if] conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph [IGRA §2710(d)(3) that is in effect." IGRA §2710(d)(1). Class III tribal gaming is regulated by the federal government, tribal governments and states. Because Massachusetts
permits certain charities to conduct raffles and bazaars for limited
charitable purposes, and since Massachusetts allows dog and horse
racing, those Class III gaming activities could be potential subjects
of a gaming compact between an Indian tribe and the Commonwealth
of Massachusetts. Purchased land in Massachusetts may be a proper gaming site for a tribal state compact, only if (i) the Secretary of interior, after consultation with the tribe, appropriate state and local officials, and officials of "other nearby Indian tribes," determines that a gaming facility on that site "would not be detrimental to the surrounding community," and (ii) the governor of the Commonwealth agrees that such use would not be detrimental to the surrounding community. Id. However, neither a tribe nor the federal government can compel the governor of Massachusetts to so concur with any such federal determination of the suitability of a tribal gaming site. Seminole Tribe of Florida v. Florida 517 U.S. 44 (1996). Therefore, any federally recognized tribe attempting to develop a gaming facility in Massachusetts may be limited to its existing reservation or the land, if any, it possesses upon settlement of a land claim. An Indian tribe
must possess and exercise governmental power over the Indian Lands
on which it would propose to conduct raffles, bazaars, dog racing,
horse racing, or some future allowed form of Class III gaming, before
it may request the Commonwealth to enter into negotiations for a
tribal gaming compact. IGRA §2710(d)(3)(A); MATCH-E-BE-NASH-SHE-WISH
BAND of Pottawatomi Indians v. Michigan 304 F.3d 616 (6th Cir.
2002) (A tribe owing lands not qualifying as Indian lands cannot
request the State of Michigan to enter into negotiations for a gaming
compact). It does not
impinge on tribal sovereignty for any gaming compact to require
the application of local zoning, building codes and other police
power laws and regulations of the Commonwealth. To fairly contemplate
the proper subjects for a tribal gaming compact and the permissible
reach of the police powers of the Commonwealth requires an understanding
of the limited sovereignty of Indian tribes. "Unlike
the states, Indian tribes possess only a limited sovereignty that
is subject to complete defeasance [by Congress]." Donovan
v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1115 (9th Cir.
1985) "Indian tribes have lost any 'right of governing every
person within their limits except themselves." Montana v.
United States, 450 U.S. 544, 565 (1981) (Tribe without inherent
sovereignty to regulate non-Indian activity on reservation but on
land owned by non-members of the tribe). Tribal power,
whether adjudicative or legislative, as a "general proposition"
does "not extend to the activities of non-members. . ."
Montana v. U.S., 450 U.S. 544, 564-65 (1981). "A tribe's
adjudicative jurisdiction does not exceed its legislative jurisdiction."
Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997). Supreme
Court doctrine expressly limits inherent tribal authority, whether
legislative, regulatory or adjudicatory over non-members: first,
the acts or occurrences to be regulated or adjudicated must have
occurred on the reservation; second, either the subject matter must
implicate tribal taxation, licensing or regulation of on-reservation
activities or the on-reservation conduct in question must have a
direct impact on the tribe's strictly intramural concerns. Strate,
520 U.S. at 459. The ownership status of lands...is only one factor to consider whether regulation of the activities of non-members is 'necessary to protect tribal self-government, or to control internal relations.' 533 U.S. at ___ (quoting Montana). And, "the existence of tribal ownership is not alone enough to support [tribal] regulatory [or adjudicatory] jurisdiction over non-members," Id. at ____. Our cases make clear the Indians' right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation's border. Though tribes are often referred to as "sovereign" entities, it was "long ago" that "the Court departed from Chief Justice Marshal's view that the laws of [a State] can have no force' within reservation boundaries. Worcester v. Georgia, 6 Pet. 515, 561 (1832)." White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141 (1980). "Ordinarily", it is now clear, "an Indian reservation is considered part of the territory of the State." U.S. Dept. of Interior, Federal Indian Law 510, and n.1 (1958), citing Utah & Northern R. Co. v. Fisher, 116 U.S. 28 (1885); see also Organized Village of Kake v. Egan, 369 U.S. 60, 72 (1962). That is not
to say that States may exert the same degree of regulatory authority
within a reservation as they do without. To the contrary, the principle
that Indians have the right to make their own laws and be governed
by them requires "an accommodation between the interests of
the Tribes and the Federal Government, on the one hand, and those
of the State, on the other." Washington v. Confederated
Tribes of Colville Reservation, 447 U.S. 134, 156 (1980);
See also Id., at 181 (opinion of REHNQUIST, J.). When on-reservation
conduct involving only Indians is at issue, state law is generally
inapplicable, for the State's regulatory interest is likely to be
minimal and the federal interest in encouraging tribal self-government
is at its strongest." Bracker, supra, at 144. When,
however, state interests outside the reservation are implicated,
States may regulate the activities even of tribe members on tribal
land... The Commonwealth's interests require the full application of its police powers to on-reservation commercial activities involved with, arising out of or relating to, the development, construction and operation of any tribal gaming facility subject only to respecting tribal rights of self governance. The elements of negotiation of an individual tribal gaming compact necessarily should vary depending on the scope, size and proposed location of a tribal gaming facility along with a consideration of all other ancillary uses and facilities and the potential impact on the Commonwealth and local communities. The application of the Commonwealth's laws should be in coordination with, but not subservient to parallel tribal ordinances. 2. LAW OF TRIBAL IMMUNITY The Commonwealth should require in any gaming compact a waiver, in whole or in part, of tribal immunity from suit. Under the doctrine of tribal immunity Indian tribes and tribal enterprises are above the law and may compete in the marketplace unfettered by the constitutional, statutory and common law strictures protecting property rights, individual freedoms and fair competition. "As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." Kiowa Tribe of Oklahoma v. Manufacturing Technologies, ___ U.S. ___, 118 S.Ct. 1700, 1702 (1998). In the Kiowa tribe case, the tribe signed a Promissory Note for an investment having nothing to do with governmental affairs or on-reservation intramural activities; when the tribe failed to pay, the Lender sued and the Supreme Court held, albeit, reluctantly, that the tribe was immune from suit. The High Court explained that tribal immunity was unsupported by any "reasoned statement of doctrine" and was outmoded, anachronistic, and unfair. Id. at 1704. "The rationale
[for tribal immunity]... can be challenged as inapposite to modern,
wide-ranging tribal enterprises extending well beyond the traditional
tribal customs and activities... There are reasons to doubt the
wisdom of perpetuating the doctrine...[In this era when tribes conduct
large business enterprises] tribal immunity extends beyond what
is needed to safeguard tribal self-governance. This is evident when
tribes take part in the Nation's commerce. In this economic context,
immunity can harm those who are unaware that they are dealing with
a tribe, who do not know of tribal immunity, or who have no choice
in the matter, as in the case of tort victims. These considerations
might suggest a need to abrogate [or limit] tribal immunity...[Declining
to act in this case] we defer to the role Congress may wish to exercise
in this important judgment...Congress 'has always been at liberty
to dispense with... tribal immunity or to limit it'...In considering...[its]
role in reforming tribal immunity [Congress should consider legislation
similar to]. . .the Foreign Sovereign Immunities Act... That Congress has made a number of laws specifically applicable to Indian tribes, does not, by itself, abrogate tribal immunity. Santa Clara Pueblo v. Martinez 436 U.S. 49 (1978) (While Indian tribes are subject to the Indian Civil Rights Act there is no private right of action against Indian tribes for deprivation of civil rights). Congressional abrogation of tribal immunity "cannot be implied but must be unequivocally expressed." Id. at 58. The owner of
the world's largest gambling casino engaged in an off-reservation
multi-million dollar commercial movie production cannot be sued
for copyright infringement, tortious interference with contracts
or violation of Connecticut's Unfair Trade Practices Act. Bassett
v. Mashantucket Pequot Tribe, 204 Fed.3d 343, 357 (2nd Cir.
2000) (no congressional abrogation of tribal immunity in the Copyright
Act)(while unable to pursue damages, a plaintiff may enjoin prospective
copyright infringement by Indian tribes). In C&L Enterprises, the Indian tribe owned an off-reservation commercial building and entered into a contract for work. The contract contained an arbitration clause requiring disputes to be resolved under the American Arbitration Association rules and specified that the arbitral decision could be enforced in any court having jurisdiction. The contractor claimed the tribe had dishonored the contract and an arbitrator determined the contractor entitled to damages. The Supreme Court held that the tribe's entry into the commercial contract with a mandatory arbitration clause constituted a waiver. The Supreme Court rejected the argument that a tribal immunity waiver required explicit use of the words "sovereign immunity." 532 U.S. at ___. Because Congress
has declined to dispense with or limit tribal immunity, tribal enterprises,
both on and off the reservation may compete unfettered by federal
and state laws assuring fair competition and providing recourse
for victims of unlawful conduct. Paraplegic consumers entitled under the American with Disabilities Act to accommodations in all places of public accommodation cannot sue a Tribal-owned and operated restaurant and entertainment facility to require wheelchair ramps, and accessible doors and bathrooms. Florida Paraplegic Ass'n v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999) (while ADA applies to Indian Tribes, no private right of action). A tribal casino
patron injured by the negligence of the tribe cannot sue the tribe
or its officials for his damages. Romanella v. Hayward, 114
F.3d 15 (2d Cir. 1997). A. Background At common law,
the King could do no wrong. In order to redress sovereign acts either
illegal, or if legal, executed in an illegal fashion, the law presumes
such acts to have been committed by the individual actor and not
the sovereign. Larson v. Domestic & Foreign Commerce Corp. 337 U.s. 682, 689 (1948). In such cases, immunity does not extend to the individual actor. Larson, 337 U.S. at 689-90. If those actions
are such as to create a personal liability, whether sounding in
tort, or contract, the fact that the officer is an instrumentality
of the sovereign does not, of course, forbid a court from taking
jurisdiction over a suit against him. [citation omitted] As was
said in Brady v. Roosevelt S.S. co., 317 U.S. 575, 580 (1943),
the principle that an agent is liable for his own torts "is
an ancient one" and applies even to certain acts of public
officers or 'public' instrumentalities." Larson, 337
U.S. at 686-87. " No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey itY courts of justice are established, not only to decide upon the controverted rights of the citizens as against each other, but also upon rights in controversy between them and the government..." Id. Tindal v. Wesley, 167 U.s. 204, 413 (1897) (Harlan, J.) held the principles underlying Lee apply to states as well as the federal government. In Tindal, the plaintiff had record title to, and possession of, certain property; the state ousted him and maintained possession. The state officials, who, in the course of their official duties, held and maintained the property, were sued for damages in their individual capacities. The defendants insisted that since they had no personal interest in the property and held the property as agents of the state, the action at law to eject them was really a suit against the state. Following a trial a jury found for the plaintiff and judgment for possession entered against the state officers and employees. The Supreme
Court affirmed the judgment. Relying on, and quoting extensively
from, U.S. v. Lee, Justice Harlan's opinion explained that
courts cannot evade their responsibilities when property rights
of a plaintiff "have been invaded by the officers of the government,
professing to act in its name." 167 U.S. at 215. The "lawfulness
of the authority" of the sovereign's agents must be tested
in court as no federal, state or limited sovereign has any authority
to lawfully deprive a citizen of her property. A suit by an individual
seeking redress for unlawful invasion of property rights against
state officials acting within the scope of their duties is not an
action against the state. Id. at 216-17. Because their purported
authority is "unlawful," the agents are not doing the
sovereign's legitimate business, but are acting ultra vires
and properly held liable in their individual capacities. Id.
at 216-17. See Larson, 337 U.S. at 686, 689. While the president
of the United States can be liable in his personal capacity for
tortious conduct, while a congressional sergeant at arms is personally
liable for executing an unconstitutional arrest order (Kilbourne
v. Thompson, 103 U.S. 168 (1880)), while legal counsel to a congressional
committee is liable for illegal acts in carrying out his official
duties (Dombrowski v. Eastland, 387 U.S. 82,88 (1967)) and while
innocent government employees and agents are personally liable for
unknowing infringement of patents (Belknap v. Schild, 161 U.S. 10,18
(1896)), the law is not so clear when it comes to Indian tribal
officials and employees. One federal court has held that the representatives and agents of a commercial enterprise of the tribe owning and operating the world's largest gambling casino may not be sued in their personal capacities for illegal and tortious conduct. In Bassett v. Bell, 221 F.Supp.2d 221 (D. Conn. 2002) the Unites States District Court held that tribal agents and employees-- not officialsCconducting a non-governmental commercial enterprise may not be sued in their personal capacities for copyright infringement and other civil wrongs. Given the uncertainty
of the law and the Supreme Court' call for reform, the public interest
requires a complete waiver of tribal immunity in any gaming compact
to be negotiated by the Commonwealth. Respectfully Submitted,
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