Tribal Sovereign Immunity from Tort Action: Wilkes v. PCI Gaming Authority


Wilkes v. PCI Gaming Authority, [Ms. 1151312, Sept. 29, 2017] __ So. 3d __ (Ala. 2017). This 7-0 decision by Chief Justice Stuart (Bolin, Parker, Murdock, Main, Bryan, and Sellers, JJ., concur; Shaw and Wise, JJ., recuse) reverses a summary judgment entered by the Elmore Circuit Court dismissing claims against PCI Gaming Authority and the Poarch Band of Creek Indians based on sovereign immunity of the Poarch Band of Creek Indians. The plaintiffs were injured when an automobile driven by an employee of Wind Creek-Wetumpka collided with plaintiffs’ vehicle. The Wind Creek-Wetumpka employee had a blood alcohol level of .293 one hour and 45 minutes after the crash.

Noting that immunity of Indian tribes is a question of federal law, the Court also observed that the Supreme Court of the United States had never “specifically addressed (nor, as far as we are aware, has Congress) whether immunity should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with the tribe, has no alternative way to obtain relief for off-reservation commercial conduct.” Ms. *11, quoting Michigan v. Bay Mills Indian Community, __ U.S. __, ___ 134 S.Ct. 2024, 2036, n. 8 (2014).

The Court held

In light of the fact that the Supreme Court of the United States has expressly acknowledged that it has never applied tribal sovereign immunity in a situation such as this, we decline to extend the doctrine beyond the circumstances to which that Court itself has applied it; accordingly, we hold that the doctrine of tribal sovereign immunity affords the tribal defendants no protection from the claims asserted by Wilkes and Russell. As Justice Stevens aptly explained in his dissent in Kiowa, a contrary holding would be contrary to the interests of justice, especially inasmuch as the tort victims in this case had no opportunity to negotiate with the tribal defendants for a waiver of immunity.

Ms. *11-12.

The Court also relied on the dissent of Justice Thomas in Bay Mills concluding that none of the rationale supporting continued application of tribal sovereign immunity “to tribes’ off-reservation commercial activities sufficiently outweigh the interests of justice so as to merit extending that doctrine to shield tribes from tort claims asserted by individuals who have no personal or commercial relationship to the tribe.” Ms. *13 (underlined emphasis in the original). The Court acknowledged that its holding is contrary to the holdings of several United States Courts of Appeals on this issue but that the Alabama Supreme Court “is not bound by decisions of lower federal courts.” Ms. *14.

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