Today’s blog entry takes on the question of what happens if a person with a disability decides they want to have a fun time at an Indian owned casino. However, the Indian owned casino does not accommodate their disability. Can the person with the disability go after the Indian owned casino?

 

The case of the day is Drake v. Salt River Pima-Maricopa Indian Community decided by Judge Liburdi of the District Court in Arizona on October 31, 2019. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and thoughts/takeaways. The reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff has PTSD, severe anxiety, and suffers from panic attacks. Her service dog helps her deal with those conditions. She went with her service dog to the Community Talking Stick Casino and Resort in 2019. Once arriving at the resort, the resort’s employee told her that the service dog had to go even when she had a companion try to retrieve her bag to provide the service dog’s service credentials to casino staff. As a result, plaintiff suffered a panic attack. She brought suit alleging violation of title III of the ADA as well as state suits for intentional and negligent infliction of emotional distress. The casino defended on sovereign immunity grounds.

 

II

Court’s Reasoning

 

  1. Federal laws do not apply to Indian tribes: 1) when applying the law would interfere with internal matters of tribal self-governance; 2) when applying the law would run afoul of rights a treaty guarantees the tribe; or 3) when legislative history or other indicators show Congress did not intend for the law to apply to tribes operating within the territorial boundaries.
  2. The court relied heavily on a 1999 11th Circuit case, Florida Paraplegic Association, Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th 1999), here.
  3. Parties agreed that the self-governance exception does not apply and no treaty was applicable. So, the only question was a matter of congressional intent. Relying on the 11th circuit case, the ADA has to be liberally construed to promote equal access. So, the third exception of general applicability does not apply either.
  4. Native American tribes enjoy sovereign immunity as a necessary corollary to Indian sovereignty and self-governance. That immunity respects their unique status as domestic dependent nations with inherent sovereign authority of their members and territories.
  5. Since Congress holds immunity in trust for the tribes, they can abrogate tribal immunity if they expressly do so. However, courts will not infer congressional abrogation of sovereign immunity absent clear congressional intent.
  6. When a tribal defendant raises sovereign immunity, the burden of demonstrating the immunity does not apply falls on the plaintiff. A plaintiff can satisfy that burden by showing either that the tribe has waived its immunity or that Congress abrogated that immunity with respect to the particular cause of action involved.
  7. Sovereign immunity for tribes is not coextensive with sovereign immunity for the respective States. That is, just because Congress abrogates sovereign immunity for the States, that does not mean that they automatically abrogate tribal sovereign immunity.
  8. A basic Canon of statutory construction is that expression of one type of immunity excludes those which Congress does not list. So, that Congress did not clearly waive tribal immunity but did so with respect to state sovereign immunity, shows that tribal immunity should remain intact.
  9. Indian tribes do not lose their sovereign immunity when they engage in commercial enterprises.
  10. For the same reasons, plaintiff’s state law claims are also barred by sovereign immunity.

 

III

Thoughts/Takeaways

 

  1. The case relies heavily on the 11th Circuit decision in Florida Paraplegic Association, Inc. v. Miccosukee Tribe of Indians of Florida, here.
  2. What is interesting about Indian tribe sovereign immunity, is that as far as I can tell, sovereign immunity, unlike sovereign immunity in general, applies across the board. That is, even a suit for injunctive relief against an Indian tribe seems to be prohibited. After all, title III of the ADA does not allow for damages.
  3. You have to look at the 11th Circuit decision to figure out where would a plaintiff turn to when an Indian tribe casino violates their rights under the ADA. The 11th Circuit tells us that Congress created an alternative method of enforcement. That is, the U.S. Atty. Gen. can bring a civil action to compel compliance with the ADA. More specifically, title III authorizes the Atty. Gen. to bring suit against any person or group of persons engaged in a pattern or practice of discrimination. Title III of the ADA most certainly applies to Indian tribes. Further, tribal sovereign immunity does not bar suits by the United States. So, the Atty. Gen. can pursue an action against Indian tribes failing to comply with title III just as it can enforce the act against any other entity violating the statute.
  4. In a way, the option facing a person with a disability discriminated against by an Indian tribe in violation of the ADA is essentially the same as the option faced by a person with a disability with respect to the Air Carrier Access Act. That is, the only option for vindicating a person with a disability rights in either case is to file a claim with the appropriate federal agency, in this case the Department of Justice. Under title III of the ADA, the DOJ also has the authority to levy civil fines and to seek damages for the individual plaintiff.
  5. I see no record of any appeal filed.
  6. Many cases hold that the taking of federal funds waive sovereign immunity under §504 of the Rehabilitation Act. So, if a plaintiff can show the casino takes federal funds, they may be able to have an individual claim for violating §504 of the Rehabilitation Act, 29 U.S.C. §794.
  7. Remember, causation under §504 of the Rehabilitation Act, “solely by reason of,” is different than causation under title III of the ADA, “on the basis of.” This difference in causation, which many but not all courts assume as true, may come into further clarity as the result of a federal Age Discrimination in Employment Act case (Babb), that the Supreme Court is hearing today, January 15, 2020.
  8. Taking the facts as true, there is no dispute that ADA violations occurred when the casino asked the plaintiff to leave the casino with her service dog and even refused to look at documentation.
  9. Filing with DOJ has to be done within six months of the claim arising unless you can get a waiver.

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