By Cy Ryan (contact)

Fri, Nov 14, 2008 (1:09 p.m.)

CARSON CITY – A motorcyclist hit and injured by a drunken employee of a Nevada Indian reservation cannot sue the tribal corporation or some of its workers, a federal court ruled.

The 9th U.S. Circuit Court of Appeals ruled today that sovereign immunity shields Avi Casino Enterprises, which operates the Fort Mojave tribal casino in Southern Nevada and two of the workers.

Christopher Cook, a California resident, has run up more than $1 million in medical bills after he was struck on his motorcycle by a car driven Andrea Christensen who was given free drinks at a birthday party at the casino, then bussed to her car and allowed to drive home.

Christensen, a cocktail waitress at the casino, pled guilty to aggravated assault and drunken driving and was sentenced to four years in an Arizona prison.

The tribe has reservations in three states. The casino is located near the Arizona-Nevada border on the Colorado River.

Cook filed suit against the tribal corporation that owns the casino; Ian Dodd, the manager who announced the drinks were free at a birthday party and Debra Purbaugh who served the drinks after Christensen was drunk.

Christensen was hauled in the casino shuttle bus to the parking lot, got in her car and drove off, causing the accident. Her blood alcohol content the morning following the accident was at least 0.25. In Nevada, 0.08 is considered drunk.

Judge Ronald Gould, who wrote the majority opinion, said, “Tribal sovereign immunity protects Indian tribes from suits absent express authorization by Congress or clear waiver by the tribe.

“This immunity applies to the tribe’s commercial as well as governmental activities,” wrote Gould.

Cook argued it was unfair to allow tribes to create commercial corporations that can compete in the marketplace while enjoying immunity from the legal liabilities that all other corporations must face. He said it was unnecessary to grant tribal corporations immunity to protect tribal autonomy and self-government.

The court said Cook’s argument has merit but the U.S. Supreme Court has ruled that only Congress can remove the shield of sovereign immunity.

And the court ruled that the protection from suit extends to the employees “when acting in their official capacity and within the scope of their authority.”

Gould said the decision produces “an unjust result.”

“This leaves Mr. Cook without a remedy against Avi Casino for his grave injuries under our law, even if his assertions of negligence by casino employees are correct,” wrote Gould in a concurring opinion in addition to the majority opinion.

He suggested either the U.S. Supreme Court or the Congress review the rule limiting tribal sovereign immunity involving Indian gaming casinos. Or he said the tribe itself could take responsibility for the actions of its employees and waive sovereign immunity.