Bethel Native organization claims immunity

Lawyers claim that the organization can't be sued if it doesn't want to be

Posted: Wednesday, September 17, 2003

FAIRBANKS - A Bethel Native organization told the Alaska Supreme Court on Monday that it has the same kind of legal immunity that federal and state governments have, which means it cannot be sued if it does not want to be.

The Association of Village Council Presidents said two families who claim their children were injured while participating in programs run by the association cannot file negligence claims in state court unless AVCP waives its immunity, which it has refused to do.

AVCP's lawyers say the organization has immunity because it is made up of 56 Native villages that have been declared sovereign tribes by the federal government, a designation that automatically endows them with legal immunity such as that enjoyed by other sovereign governments in the United States.

The case, Runyon v. AVCP, has attracted friend-of-the-court briefs from heavyweights on both sides of the tribal sovereignty dispute, which has been heating up since 1999, when the Alaska Supreme Court in a 3-2 decision said sovereign tribes do exist in Alaska. In that decision, John v. Baker, the court did not broadly define what powers come with tribal sovereignty, ruling only that Alaska tribes could handle some child custody disputes involving tribe members.

Last summer, Superior Court Judge Dale Curda threw out lawsuits against AVCP filed by the Runyon and Wassilie families. One says a child in the AVCP Head Start Program was sexually molested by another Head Start child. The second says a child was injured on a bus operated by AVCP. Both lawsuits accuse AVCP of negligence.

Curda found that AVCP has tribal immunity. The Anchorage Daily News reported that families have appealed his ruling.

In a written argument on behalf of the Legislature, attorney Don Mitchell said the Supreme Court did not have all the facts when it decided Baker and should reconsider the issue, then reverse itself. There are historically no tribes in Alaska, Mitchell said. Congress would have to specifically create them and has chosen not to, Mitchell said.

An opposing argument, written by Heather Kendall-Miller for the Alaska Inter-Tribal Council, says tribes as defined by the federal government have always existed here regardless of what they were called, and in 1993 the Department of the Interior specifically recognized the existing sovereignty of Alaska's villages.

There are at least three cases currently in state or federal courts featuring the same debate. It is expected that at least one of them will end up in the U.S. Supreme Court.

But on Monday, Alaska justices seemed uninterested in rearguing the question of whether sovereign tribes exist here and refused to allow Mitchell or Kendall-Miller to appear before them.

That left the door open for Charlie Cole, a former Alaska attorney general, to offer justices a simple way out of the AVCP dilemma.

It does not matter if AVCP has sovereign immunity, Cole told the justices on behalf of the families, because they waived it when they bought a liability insurance policy, as required by the people who give out federal Head Start money. The government required the insurance to protect the program's assets if it got sued.

By accepting the contract stipulation and buying the insurance, AVCP and the federal government both signaled that AVCP could be sued and, by implication, waived any immunity AVCP might have, at least to the limits of the $2 million policy, Cole said.

Not so, said attorney Patrick McKay, who represents AVCP and the insurance company. Buying a required policy did not waive anything. It's good business practice and might be needed for defense purposes, as it is now being used - to defend AVCP's immunity. The policy would have cost much more than the $1,734 premium charged if Scottsdale Insurance thought AVCP could be sued at will, McKay said.

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