Today's Eighth Circuit Court of Appeals decision in AMERIND v. Malaterre is significant. AMERIND is a federally-chartered Section 17 corporation, owned by a consortium of tribes, which operates a self-insurance risk pool and is the biggest insurer of tribal homes in Indian Country. According to AMERIND's web-site, its "IHBG Protection Program currently serves over 275 housing authorities and tribal designated housing entities in the United States."
While the court's holding that AMERIND "serves as an arm of the [Charter Tribes] and not as a mere business and is thus entitled to sovereign immunity" is a resounding affirmation of tribal immunity, especially for Section 17 entities and multi-tribal consortia, the ruling could potentially render the various AMERIND property insurance policies unenforceable. As such, on a go forward basis AMERIND should include in all of its policies, language that would operate to clearly and unequivocally waive its immunity, in limited fashion, with regard to claims by tribal insureds for insurance coverage.
There are many ways to craft limited immunity waiver language that will insulate the company from undue litigation attack, e.g., the direct action lawsuit underlying Malaterre, yet assure tribal insureds that their covered losses will be paid. I hope AMERIND will allow, or continue to allow, due recourse against its tribal policies notwithstanding its momentous court victory today.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. He can be reached at 206.691.3631 or firstname.lastname@example.org, or via galandabroadman.com.