811 N.W.2d 451
Wis. Ct. App.2012Background
- Stockbridge-Munsee Community purchased Pine Hills Golf Course and Supper Club; Pine Hills had no stock of its own.
- Pine Hills chartered as a subordinate economic enterprise and shielded by the Tribe's immunity, with limitations on assets and oversight.
- Charter sections expressly confer tribal immunity to Pine Hills and reserve inherent tribal sovereign rights over Pine Hills.
- Tribe obtained a general liability policy from First Americans Insurance; no waiver of immunity or endorsements precluding immunity defense.
- Robert Koscielak slipped in Pine Hills parking lot in 2008; suit filed in 2010; circuit court granted summary judgment dismissing as barred by tribal immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tribal immunity bars the tort claims | Koscielaks contend immunity does not apply to Pine Hills as a separate entity | Tribe and Pine Hills are immune as an arm of the Tribe | Immunity bars the claims |
| Whether Pine Hills is an arm of the Tribe for immunity | Immunity does not automatically extend via stock ownership alone | Pine Hills functions as an arm with government-like attributes | Immunity extends to Pine Hills |
| Whether McNally nine factors control immunity | Adopt McNally factors to determine immunity | McNally factors are not controlling outside its facts | Factors not controlling; follow general immunity rule |
| Whether Wisconsin constitutional art. I § 9 requires a remedy despite immunity | Section 9 secures remedies for nonmembers | Federal tribal immunity preempts state constitutional remedies | Preempted by federal tribal immunity |
| Whether First Americans remains liable despite tribal immunity | Insurer may be liable under direct action or compensation | Insurer not liable where insured (Tribe) is immune | First Americans not liable; insured protected by immunity |
Key Cases Cited
- Kiowa Tribe of Okla. v. Manufacturing Techs., Inc., 523 U.S. 751 (U.S. 1998) (tribal immunity is federal law, not subject to state diminution)
- McNally CPA's & Consultants, S.C. v. DJ Hosts, Inc., 277 Wis. 2d 801 (Wis. Ct. App. 2004) (nine McNally factors not controlling immunity universally)
- C & B Invs. v. Wisconsin Winnebago Health Dep't, 198 Wis. 2d 105 (Wis. Ct. App. 1995) (tribal arms enjoy immunity; extents corporate entities to government)
- Weeks Constr., Inc. v. Oglala Sioux Housing Auth., 797 F.2d 668 (8th Cir. 1986) (tribal housing authority as an arm of tribal government)
- Ransom v. St. Regis Mohawk Educ. & Cmty. Fund, Inc., 658 N.E.2d 989 (N.Y. 1995) (arms’ immunity recognized in state court context)
- Casper v. American Int'l Ins. Co., 336 Wis. 2d 267 (Wis. 2011) (Casper clarifies insurance policy issuance/delivery in Wisconsin context)
- Kinship of Kiowa Indian Tribe v. Manufacturing Techs., Inc., N/A (N/A) (cited for Kiowa holdings on tribal immunity and government activities)
- Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn. 1996) (relevance to immunity as applied to tribal enterprises)