Bully’s Beware: Tribal Elected Officials CAN BE Sued in State Court

By: Stephanie A. Conduff | Attorney | stephanie.conduff@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Benedict Cosentino started as table games dealer at the Pechanga Casino. Then he started to notice certain criminal activity on the casino floor during his shifts. He followed company policy and reported it. When he wasn’t dealing cards, he became an external informant to criminal activities to California Department of Justice. His information led to several criminal convictions over a period of years.

You’d think he’d get a promotion, right? Well, not so much.

Four years later, in 2011, he felt he was retaliated against by a Pechanga Gaming Commission official, who had a relationship with some of the people who had been prosecuted because of Cosentino’s information. His gaming license was suspended and ultimately revoked. Because he had a license revoked from another gaming facility, he was unemployable at other tribal gaming enterprises. The economic impact and emotional distress led to the lawsuit, Benedict Cosentino v. Stella Fuller.

Defendants moved to dismiss the case on the basis that the State court lacked subject matter jurisdiction for the case, as all Defendants were elected tribal officials. Cosentino did not sue Pechanga’s Tribal Government or Gaming Commission. Instead he sued certain Gaming Commission Members in their individual capacity. The court decided that retaliation may have occurred (trial court to decide) and that tribal officials cannot retaliate as individuals from their position on the Gaming Commission and hide behind their cloak of sovereign immunity.

For sovereign immunity to apply, the claims against tribal officials must be based on actions the officials took in their official capacity AND within the scope of their official authority. Super. Ct. No. MCC1300396

This case reaffirms that there is no sovereign immunity for tribal officials who intentionally abuse their authority and act beyond their official scope. When tribal officials “act out of personal interest rather than to benefit the tribe” (Turner v. Martire, (2000) 82 Cal. App. 4th 1042, 1055.) they will be held accountable – even if they are elected. The case has been allowed to proceed and has been remanded to the state trial court to determine if retaliation occurred.

Stephanie Conduff, a citizen of the Cherokee Nation, is a member of the firm’s Real Estate and Environmental Team and a member of the Native American Law practice group. Her practice emphasizes working with tribal governments, individual Native people, and companies doing business in Indian Country. She provides advice and strategic policy analysis on national regulatory issues and advises clients of the legal and policy issues. Stephanie’s work focuses on tribal sovereignty and self-governance, tribal lands, and the federal trust responsibility.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

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