The Oklahoma Supreme Court recently ruled in Waltrip v. Osage Million Dollar Elm Casino that a tribal enterprise's private workers' compensation insurer did not enjoy tribal sovereign immunity and was estopped to deny coverage under a policy for which the carrier accepted premiums computed in part on a tribal employee's earnings. The tribe's insurance company had the audacity to assert sovereign immunity on its own behalf? Really? Although, I'm not sure why I'm surprised that an insurance company (or the low-rate, high-volume, non-tribal defense lawyer the carrier likely unilaterally hired to defend its tribal insured) would stoop so low.
Waltrip states what was otherwise conventional Indian legal thinking, that a private insurer cannot shield themselves from defending or paying on tort claims brought against its tribal insureds as a matter of the insured's sovereign immunity. Previous to Waltrip, the Arizona Supreme Court came the closest to making that point clear, in Smith Plumbing Co., Inc., v. Aetna Casualty & Surety Co.: “Because the Tribe has the power either to insist upon or waive its sovereign immunity, that immunity is considered a personal defense not available to the Tribe’s surety.”
Thankfully the common law now clearly establishes that an insurer cannot duck and run from from a personal injury claim by asserting the sovereign rights of the insured, for the carrier's own economic gain.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe helps tribal governments and businesses devise insurance solutions, and defends tribal insureds from serious and catastrophic tort claims. Gabe can be reached at 206.691.3631 or firstname.lastname@example.org.