 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Doe v. Pueblo6/28/2005
acts to agree to the shifting of jurisdiction over visitors' personal injury suits from tribal court to state court. Congress could have worded the section in a way that obviously or necessarily included personal injury negligence claims by visitors. It did not do so.
It is reasonable to conclude that Congress intended in the IGRA to distinguish between a tribe's governmental role and a tribe's commercial enterprise role. In its governmental role, Santa Clara engages in licensing and regulation, the sole subjects of § 2710(d)(3)(C). In its role of conducting commercial operations, Santa Clara has agreed that the safety and protection of its visitors is a priority and has agreed to a limited waiver of its sovereign immunity for visitors' claims for bodily injury . The subject of the tribe's limited immunity waiver is nowhere to be found in § 2710(d)(3)(C).
Gallegos, 2002-NMSC-012, does not change the playing field. In Gallegos, the issue in the present case was not addressed. The question in Gallegos was whether the court had subject matter jurisdiction of a tort claim against the tribe, and that issue was dependent on whether, under the doctrine of tribal sovereign immunity, the tribe was immune from suit in state court. Id. 6-7. Gallegos states that " tribe can . . . waive its own immunity by unequivocally expressing such a waiver." Id. 7. Gallegos also states that " ithout an unequivocal and express waiver of sovereign immunity or congressional authorization, state courts lack the power to entertain lawsuits against tribal entities." Id. Our Supreme Court raised congressional authorization in regard to jurisdiction, citing § 2710(d)(3)(C)(ii). Gallegos, 2002-NMSC-012, 10. However, the Court stopped short, expressly stating that, while the issue of jurisdiction shifting was argued, the Court was not going to address it. Id. 10 n.3.
Rather, the Court in Gallegos addressed only the question whether the tribe waived its tribal immunity from suit in state court. Id. 11. In doing so, the Court addressed the tort claimant's argument that the tribe had signed and was bound by a compact containing Section 8, and then held that the claimant could not rely on the compact because it was not in effect. Id. 12-14. Gallegos was aware of the jurisdiction-shifting issue and refused to consider it because of its holding that the compact on which the claimant relied was not effective. Thus, Gallegos does not read § 2710(d)(3)(C)(i, ii) to state that the IGRA expressly permits the question of state court jurisdiction over visitors' personal injury suits to be a topic of negotiation in compacts. Gallegos contains no discussion of what the words in that section mean or cover, or were intended to mean or cover. Gallegos contains no discussion of whether language in a congressional authorization of state court jurisdiction must be expressly or explicitly stated in the legislation, as opposed to implied from wording in legislation.
Barring Gallegos, the majority opinion is left with legislative history. What is significant about that discussion is the absence of any comment in congressional hearings regarding whether the IGRA was to permit an allocation of jurisdiction beyond that necessary for the enforcement of laws and regulations directly related to and necessary for licensing and regulation of Class III gaming activities. In the IGRA, including § 2710(d)(3)(C)(ii), there exists no express inclusion of, nor any indication of a discernible legislative intent to include, jurisdiction allocation or shifting in relation to a negligence claim such as Plaintiff's. The duty underlying a visitor's personal injury claim does not come within the scope of jurisdiction necessary f
Page 1 2 3 4 5 6 7 8 9 10 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|