Tribe says sovereign immunity absolves it from disability act

Sovereign immunity protects Indian tribes from lawsuits under the Americans with Disabilities Act, according to a motion the Tule River Tribal Council filed this week.

"The Tule River Indian Tribe, a federally recognized Indian sovereign nation, and the tribe defendants, cannot be sued in state or federal court unless Congress has authorized the suit or they have waived their tribal sovereign immunity," wrote Zagros S. Bassirian, an attorney with Procopio, Cory, Hargreaves & Savitch LLP in San Diego.

"Neither has occurred here. Accordingly, this court lacks subject matter jurisdiction," his motion to dismiss filed Monday argued.

Plaintiff Hendrik Block brought the complaint last year after a visit to the Eagle Feather Trading Post #2, the tribe's market and gas station in Avenal. According to his complaint, Block "is substantially limited in his ability to walk, and must use a cane, walker, wheelchair, or electric scooter for mobility." Block v. Tule River Tribal Council, 1:20-cv-01691-DAD-BAM (E.D. Cal., filed Nov. 25, 2020).

Some attorneys who defend these cases say they have spotted a recent rise in lawsuits under the Americans with Disabilities Act as more restaurants and businesses open up because of the waning COVID-19 pandemic. Block has filed 35 complaints under the act in the Eastern District of California since 2015, including 11 last year, though some repeat plaintiffs have filed far more.

His previous cases have mainly been against restaurants and retail establishments, not tribes. His attorney, Tanya E. Moore with the Moore Law Firm PC in San Jose, did not mention sovereign immunity in her complaint. Instead, she focused on the more traditional aspects of this type of complaint: descriptions of alleged noncompliance with the disability law and additional claims under California's Unruh Civil Rights Act and the state Health and Safety Code.

She requested injunctive relief, interest and attorneys' fees. Neither Moore nor Bassirian returned calls seeking comment.

"The facility is open to the public, intended for nonresidential use, and its operation affects commerce," Moore argued. "The facility is therefore a public accommodation as defined by applicable state and federal laws."

Court documents showed the tribe initially failed to appear to contest the claims. This caused the court to submit an entry of default in January, but U.S. Magistrate Judge Barbara A. McAuliffe set that order aside last month.

The Americans with Disabilities Act contains few mentions of Indian tribes, though it excludes them from the definition of "employer" under the law. This case likely hinges on tribal sovereign immunity, which has been a tough hurdle for plaintiffs to overcome.

Generally, tribes are not subject to federal laws that would interfere with their governance or treaty rights, and they do not lose this immunity when they engage in commerce. Congress can also include waivers to immunity within a particular law, or tribes can waive the right themselves.

William D. Goren, a Decatur, Georgia based attorney specializing in disability act cases, said the case appears to be a straightforward dismissal, based on a review of the complaint and the motion to dismiss.

Goren added a few caveats. For instance, the plaintiff could attempt to make a claim under the federal Rehabilitation Act of 1973. This law bans disability discrimination by those who receive federal funds.

"The other wild card is that the plaintiff could always file a complaint with the Department of Justice," Goren said in an email. "The Department of Justice would not be subject to tribal sovereign immunity. Of course, whether the DOJ would take that on is another question. If the DOJ did not take it on, then the plaintiff is without recourse."