Opinion
W.C. No. 4-777-655.
July 28, 2011.
FINAL ORDER
The claimant and respondent Southern Ute Indian Tribe both seek review of an order of Administrative Law Judge Mottram (ALJ) dated March 21, 2011, that granted summary judgment and denied and dismissed the claim for compensation. We affirm.
The Southern Ute Indian Tribe (Tribe) is a federally recognized Indian Tribe headquartered in Ignacio, Colorado. The Sky Ute Casino is a business entity wholly owned and operated by the Tribe. The claimant is a non-Tribal member, a U.S. citizen and a resident of the State of Colorado residing in Ignacio, Colorado. The claimant is not an enrolled member of the Southern Ute Tribe. The claimant alleges she suffered a work-related injury on land that is held in trust by the federal government for the Tribe. The claimant contends she suffered an injury to her neck and head on August 4, 2008 in an industrial injury that occurred at Sky Ute Lodge and Casino in Ignacio, Colorado on the Tribe's reservation.
The respondents' filed a motion to dismiss all claims asserted by the claimant on the ground that the Office of Administrative Courts lacked subject matter jurisdiction. The Tribe argued that it had not waived its sovereign immunity from suit and therefore all claims must be dismissed.
The ALJ found that there was no authority supporting a determination that a federally recognized Indian tribe subjects itself to the jurisdiction of a state's Workers' Compensation Act for non-tribal employees by operating a casino on the tribal land located within the state. The ALJ found that there was no evidence that the Tribe had waived its sovereign immunity in operating the Casino. Therefore, the ALJ found that the Tribe was immune from liability for injuries to the claimant arising under the Colorado Workers' Compensation Act. Therefore the ALJ denied and dismissed the claim.
Preliminarily we note that OACRP Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts' Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 at 7. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers' compensation proceedings. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo. App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act). Summary judgment is a drastic remedy and is not warranted unless the moving party demonstrates that it is entitled to judgment as a matter of law. Van Alstyne v. Housing Authority of Pueblo, 985 P.2d 97 (Colo. App. 1999). All doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo. App. 1987). However, once the moving party establishes that no material fact is in dispute, the burden of proving the existence of a factual dispute shifts to the opposing party. The failure of the opposing party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo. App. 1991).
In the context of summary judgment, we review the ALJ's legal conclusions de novo. See A.C Excavating v. Yacht Club II Homeowners Association, 114 P.3d 862 (Colo. 2005). However, pursuant to § 8-43-301(8), C.R.S., we have authority to set aside an ALJ's order only where the findings of fact are not sufficient to permit appellate review, conflicts in the evidence are not resolved, the findings of fact are not supported by the evidence, the findings of fact do not support the order, or the award or denial of benefits is not supported by applicable law.
The question on review here is whether the Tribe has sovereign immunity from liability for injuries to the claimant arising under the Colorado Workers' Compensation Act (Act). We do not understand any party to be contending that there were disputed issues of fact involving the application of sovereign immunity. We conclude that the law supports the ALJ's order.
I.
The claimant contends that the ALJ erred in determining that respondents had sovereign immunity from a claim brought under the Act. The claimant maintains that there can be no sovereign immunity where there is no Tribal system to adjudicate or award workers' compensation benefits to a non-tribal member who was employed by tribal entities on Indian lands held in trust by the U.S. Government. The claimant argues that the application of sovereign immunity is misplaced here because the Act applies to the claimant as a non-Tribal member.
The General Assembly has clearly expressed its intent that the Act is to assure the quick and efficient delivery of disability and medical benefits to injured workers in Colorado and is based on a mutual renunciation of common law rights and defense by employers and employees alike. Section 8-40-102 C.R.S. Further, the claimant correctly points out that the Act provides procedural due process protections to Colorado workers. However, Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Turner v. United States, 248 U.S. 354, 358, 39 S.Ct. 109, 110, 63 L.Ed. 291 (1919); United States v. United States Fidelity Guaranty Co., 309 U.S. 506, 512-513, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940); Puyallup Tribe, Inc. v. Washington Dep't of Game, 433 U.S. 165, 172-173, 97 S.Ct. 2616, 2620-2621, 53 L.Ed.2d 667 (1977).
We agree with the ALJ that Cash Advance Preferred Cash Loans v. State, 242 P.3d 1099, 1110 n. 12 (Colo. 2010) provides guidance in the present case. In Cash Advance, the court determined that as a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity. In Cash Advance, the Court further determined that congressional abrogation or tribal waiver of sovereign immunity cannot be implied, but must be unequivocally expressed. Further, in Cash Advance, the court noted that tribal immunity is a matter of federal law and is not subject to diminution by the states. There appears to be no dispute that the respondent is a federally-recognized Indian tribe and therefore is entitled to sovereign immunity.
Further, we are persuaded by the reasoning of courts in other jurisdictions that the ALJ lacked subject matter jurisdiction. The courts in Oklahoma have faced similar issues and provide persuasive authority. Oklahoma courts have sustained dismissals of claims filed in the Oklahoma workers' compensation court against a federally-recognized Indian tribe for lack of subject matter jurisdiction. Quinton v. Cherokee Nation Enterprises 229 P.3d 581 (Okla. Ct. App. 2009); Pales v. Cherokee Nation Enterprises, 216 P.3d 309 (Okla. Ct. App. 2009); Hall v. Cherokee Nation, 162 P.3d 979 (Okla. Ct. App. 2007). See also Larson's Workers' Compensation Law § 142.04 at 142-11 to-12 n. 4 (2007) (discussing Hall v. Cherokee Nation). The facts underlying the Oklahoma cases appear to be, in all material respects, the same as those present here. It even appears that the Hudson Insurance Group Sovereign Nation Workers' Compensation and Employers' Liability Policy involved here was the same or similar to the one in question in Hall v. Cherokee Nation. Exhibit 5.
There are a number of cases from other states in accord with these Oklahoma cases. See Antonio v. Inn of the Mountain Gods Resort and Casino 148 N.M. 858, 242 P.3d 425 (N. M. App. 2010) (tribe's sovereign immunity applied to preclude workers' compensation administration's jurisdiction over tribe); Ortego v. Tunica Biloxi Indians of La. 865 So.2d 985 (La. App. 3 Cir. 2004); White Mountain Apache Tribe v. Industrial Comm'n of Arizona 144 Ariz. 129, 696 P.2d 223 (Ariz. App. 1985). See also Middletown Rancheria of Pomo Indians v. Workers' Comp. Appeals Bd.,60 Cal.App.4th 1340, 71 Cal.Rptr.2d 105 (1998); Tibbetts v. Leech Lake Reservation Bus. Comm., 397 NW.2d 883 (Minn. 1986). In these cases the employers were wholly-owned entities of the Indian tribe, and the courts concluded that the federal statute, 40 U.S.C. § 290, did not have the effect of abrogating the sovereign immunity of the tribes themselves. See Workforce Safety Ins. v. JFK Raingutters, 733 NW.2d 248, 254-55 (N.D. 2007) (distinguishing applicability of state workers' compensation to businesses owned by tribal members as opposed to tribal ownership). We are persuaded by the reasoning in these cases that the ALJ did not error in determining that the Tribe had sovereign immunity in operating the casino.
The claimant, citing Nevada v. Hicks 533 U.S. 353, 121 S. Ct. 2304 (2001), argues that tribal jurisdiction should not be permitted over non-tribal litigants. Nevada v. Hick involved the issue of whether a tribal court may assert jurisdiction over civil claims against state officials who entered tribal land to execute a search warrant against a tribal member suspected of having violated state law outside the reservation. The U.S. Supreme Court held that the tribal court did not have jurisdiction to adjudicate tort claims arising from state officials' execution of process on reservation lands for evidence of an off-reservation crime. However, we do not find Nevada v. Hicks instructive on the present controversy because Hicks involved an investigation of an off-reservation crime and the court found that state officer could enter the reservation to investigate such violations. Here, there is no dispute that the injury occurred at the Sky Ute Lodge Casino in Ignacio, Colorado on the Tribe's reservation. In our view, to the extent that Hicks applies here, it is for the general proposition, as recognized by the court, regarding the right of reservation Indians to make their own laws and be ruled by them.
We recognize, as did the ALJ, that there are cases from other jurisdictions where state jurisdiction over a workers' compensation claim has been found in certain situations. In Swenson v. Nickaboine 793 N.W.2d 738 (Minn. 2011), a claimant sought benefits for a back injury he allegedly sustained while working for a subcontractor on a casino expansion project located on land held in trust by the federal government for an Indian tribe. The Minnesota court held that the state was authorized to adjudicate the claim pursuant to a statute extending state workers' compensation laws to property of the federal government. However, in Swenson, the claim was brought by a Minnesota citizen against a nontribal-owned company. In analyzing the question of sovereign immunity, the court highlighted the difference between a "non-Indian employer" and an Indian tribe acting as the employer. The court allowed application of the state's workers' compensation statute to injuries of employees of a non tribal-owned company sustained on Indian land. Here, the claim is lodged against the sovereign, i.e., the tribe itself. Therefore, we find no error in the dismissing the claim because the Tribe had not waived its sovereign immunity by operating a casino.
II.
The claimant contends that the Tribe's sovereign immunity argument cannot protect its insurer. The claimant argues that the respondent Alliant Specialty Insurance Services, Inc. ("Tribal First") is a third party administrator for Hudson Insurance Company. Although conceding that corporate entities may be arms of the tribe entitled to the tribe's sovereign immunity, the claimant argues that it is unsettled whether an insurance carrier for an Indian Tribe is subject to state's workers' compensation laws. The claimant argues that the carrier is not "an arm of the tribe," but is a mere business. The claimant further argues that the insurance carrier contracted to provide workers' compensation benefits comparable to the Act, and therefore by issuing a policy it has assumed liability even if the Tribe is indeed immune.
Tribal First appears separately from the Tribe and states that it does not assert sovereign immunity as an "arm of the tribe." Rather, Tribal First contends that Colorado courts lack subject matter jurisdiction over the Tribe due the Tribe's sovereign immunity and, therefore, the state lacks subject matter jurisdiction over Tribal First, the Tribe's insurer.
Tribal First cites White Mountain Apache Tribe v. Industrial Comm'n of Arizona 144 Ariz. 129, 696 P.2d 223 (Ariz. App. 1985) for this proposition. In White Mountain Apache Tribe, the Arizona Court of Appeals concluded that since the Commission lacked jurisdiction to adjudicate the claimant's claim, it necessarily lacked jurisdiction over the insurer. We are persuaded that the reasoning followed by the Arizona court in White Mountain Apache Tribe is instructive here.
In Colorado, it is the responsibility of the employer to secure compensation for all employees. Section 8-44-101 C.R.S. The employer is allowed under the Act to accomplish this in different ways, including securing an insurance policy. The contract for insurance is subject to the Act and the policy must meet certain requirements to insure that proper coverage for liability is established under the Act. Section 8-44-102 C.R.S.
The policy issued by the insurer here provides coverage for "Sovereign Nation Workers' Compensation Insurance." Exhibit E at 3. Pursuant to the policy, Sovereign Nation Workers' Compensation means the workers compensation benefits as established by the Tribe and is subject to the tribal ordinance related to workers compensation benefits. Exhibit E, § C at 8. The coverage specifically excludes any state or federal workers' compensation law. Exhibit E, § C at 8.
The insurer may have had a duty to defend the claim in Colorado courts, but we perceive nothing in the policy that would require the insurer to provide benefits under the Act. Nor are we persuaded that the insurer has an independent duty to provide benefits to the claimant under the Act greater than that of the employer to secure compensation benefits under the Act. As we determined above, the Tribe as employer enjoys sovereign immunity and so has no obligation to secure compensation benefits for the claimant under the Act. Therefore, we perceive no duty on the part of the sovereign's insurance carrier to provide the claimant with corresponding benefits.
The claimant has not pointed to anything in the policy nor cited any legal authority that would impose greater liability on the part of the insurer of the sovereign then the soverien has under Colorado law. To the contrary, in Colorado it is the insurance policy and not the liability of the insured employer that measures the liability of the insurer. State Compensation Ins. Fund v. Dean 689 P.2d 1146 (Colo. App. 1984); U.S. Fidelity Guaranty Co. v. Turkey Creek Stone, Clay Gypsum 75 Colo. 611, 227 P. 569 (Colo. 1924). Therefore, we perceive no basis upon which to impose an independent liability on the insurer beyond that of the employer under the Act. This is particularly true in light of the policy provisions here that explicitly exclude such coverage.
III.
The Tribe objects to the ALJ's order to the extent that it holds the State of Colorado would properly have jurisdiction over the claimant's case if the Tribe waived its sovereign immunity. The Tribe maintains that notwithstanding its sovereign immunity from suit, Colorado also lacks jurisdiction over this case as a matter of federal Indian law insomuch as Colorado's jurisdiction infringes upon the Tribe's sovereignty. The Tribe maintains that the Southern Ute Indian Tribal Court is the only appropriate forum to adjudicate this matter even if the Tribe were to waive its sovereign immunity.
Here, we have affirmed the ALJ's determination that the Tribe is immune from liability for injuries to the claimant arising under the Act. Therefore, it is unnecessary to address the issue of whether Colorado would have jurisdiction over the claim if the tribe had waived its sovereign immunity.
IT IS THEREFORE ORDERED that the ALJ's order dated March 21, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Paird
_______________________ Dona Rhodes
BARBARA GROSSHANS, IGNACIO, CO, (Claimant).
ALLIANT SPECIALTY INSURANCE SERVICES, Attn: MARISELA VILLALVA, C/O: TRIBAL FIRST, SAN DIEGO, CA, (Insurer).
WITHERS SEIDMAN RICE MUELLER PC, Attn: DAVID B. MUELLER, ESQ., GRAND JUNCTION, CO, (For Claimant).
SOUTHERN UTE INDIAN TRIBE LEGAL DEPT, Attn: MONTE MILLS, ESQ./LORELYN HALL, ESQ., IGNACIO, CO, (For Respondents).
GORDON REES LLP, Attn: FRANZ HARDY, ESQ./ROSS A HOOGERHYDE, ESQ., DENVER, CO, (Other Party).