Gary Filer was sleeping in the back seat of a minivan traveling through Tucson when it collided with a drunken driver going the wrong way on Interstate 10.
Filer lost his wife, who was at the wheel, his leg and the family dog in the July 3, 2004, crash. The driver of the other vehicle, Doug Levitski, had gotten wasted at the Desert Diamond Casino, operated by the Tohono O’odham Nation.
Arizona Department of Gaming Director Mark Brnovich points to the Tucson case as an example of a reason to be wary of the tribe’s plans to build a casino at 91st and Northern avenues in an unincorporated area adjacent to Glendale, near University of Phoenix Stadium, the city’s entertainment center and a high school.
But a Tohono O’odham attorney says the case should instill confidence that people who have a claim against the tribe will be duly compensated.
Brnovich said there are also lingering questions about who will provide public safety services to the casino, which will be built only if the land is deemed an Indian reservation, a prospect that will bring with it all sorts of jurisdictional issues that need to be ironed out.
“The (gaming) compact requires those questions to be answered,” Brnovich said.
Brnovich, who was an assistant state attorney general who helped draft the compact between the state and the tribes and was a federal prosecutor who prosecuted crimes in Indian country, said the department has been mostly silent on the casino issue because of three lawsuits arising from it. He said he agreed to talk with the Arizona Capitol Times about the tribe’s proposed plans because of the tribe’s history of handling liability issues.
He was referring to the Filer case, where the tribe asserted sovereign immunity to keep the case out of Pima County Superior Court. Case law has determined that sovereign immunity bars people from suing Indian tribes in state court unless the tribe clearly waives its immunity or Congress abolishes it.
“It’s always important to remember they have sovereign immunity,” Brnovich said.
Filer filed his wrongful death lawsuit in July 2004 against the tribe and Desert Diamond Casino, but Judge Deborah Bernini of Pima County Superior Court dismissed it, ruling the tribe hadn’t waived its immunity. Filer took the case to the Arizona Court of Appeals, arguing that Bernini was wrong because sovereign immunity doesn’t exist under Arizona’s “dram shop” laws, which can hold someone who has a liquor license liable if he sells booze to someone who is obviously intoxicated and then goes on to injure or kill someone else.
Then-Arizona Court of Appeals Judge John Pelander, who is now a state Supreme Court justice, wrote for a unanimous three-judge panel, saying it was a close call, but affirming Bernini’s ruling.
Pelander wrote that the decision is “unsatisfactory to some and arguably is divorced from the realities of the modern world” where Indian gaming and alcohol sales together are common.
“That family never got its day in court,” Brnovich said.
Taking a chance with tribal courts
Filer took his case to Tohono O’odham tribal court, where it was finally resolved in 2010.
“We settled,” Filer said, declining to reveal the settlement amount because of a confidentiality agreement.
The gaming compact requires tribes to carry insurance and waive immunity up to $2 million.
Brnovich wouldn’t comment on the integrity and quality of the Tohono O’odham court system.
“Some tribal courts are better than others,” he said, adding that there is no uniform tribal law among the various nations.
Paul Bender, an ASU law professor who works as a judge on three tribal courts, said the tribes began with very rudimentary systems, but they have become more sophisticated during the past 30 years as the federal government has provided incentives to improve.
He said the legal principles of tribal court are remarkably similar to state court and the tribes typically use state or federal rules of procedure.
“It’s really like another state court,” Bender said.
He said he has never seen interference in the courts from the tribes.
Daniel J. Quigley, general counsel for Tohono O’odham’s gaming enterprise, said that under the state compact, the tribes have to waive immunity for casino patrons who bring a suit, but the tribe’s own gaming charter expands the waiver to include non-patrons like Filer.
Quigley said the tribe never asserted that Filer couldn’t file suit, only that he couldn’t file suit in state court.
“We’ve never had a person denied a recovery against the casino because of a (damages) cap or immunity,” Quigley said.
Quigley said that the only ruling that came in the tribal court in the Filer case was in Filer’s favor. The court refused the casino’s request to dismiss the case on arguments that there was no evidence Levitski got drunk at the casino.
The tribe has owned the West Valley land since 2003 and announced in 2009 it was going to build a casino there once it got federal approval to deem it a reservation. That announcement drew the ire of Glendale and the Gila River Indian Community, which operates three casinos in the Valley, from the first day.
Glendale is involved in three of four of the lawsuits stemming from the planned casino, and the relationship between the city and tribe is contentious.
“They (the tribe) haven’t endeared themselves to the people they need to have a good relationship with,” Brnovich said.
He said the tribe needs to get along with Glendale because the city can play a major role in the casino adhering to the state compact requirement that the tribe to provide adequate police and fire protection, which will likely involve mutual aid agreements.
Quigley said Glendale hasn’t been willing to get along, but the tribe doesn’t have to rely on that city alone.
Quigley said the tribe has been cultivating relationships with several West Valley cities.
Peoria Mayor Bob Barrett, whose city also borders the casino site, said the tribe last year provided the city with an $180,000 grant to the fire department for a rescue boat for use at Lake Pleasant.
Quigley said the tribe has police and fire departments and contracts with the Maricopa County Sheriff’s Office to patrol Gila Bend. He said any arrangements in the West Valley will be similar to ones in southern Arizona, where the tribe has mutual aid agreements with various fire departments and works cooperatively with other police departments.
“I don’t anticipate there will be a problem providing these services,” he said.