Immunity Challenged

San Carlos death involves Tonto judge

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A lawsuit involving the death of a young man is raising complex issues about the liability of Native American casinos, tribal governments and a member of the San Carlos Apache Tribal Council, who is also a Tonto Apache Tribal court judge.

A San Carlos Apache family that lost their son in a drunk driving accident two years ago is suing Tonto Apache Tribal Court Judge Tao Etpison.

The family of Justin Hooke claims Etpison got their 22-year-old son alcoholic drinks and then let him drive home from the Apache Gold Casino Resort in April 2011. The casino’s surveillance team meanwhile watched the men drink throughout the night and then drive home, according to court documents.

Hooke later crashed his vehicle and died. He had a blood alcohol content more than double the legal limit.

The family claims Etpison and the casino are at fault.

Their initial complaint also named the San Carlos Apache Tribe and Tribal Council, but a tribal appeals panel overturned a decision by a former state Supreme Court judge acting as a contract judge for the tribal court naming them defendants. The appeals panel ruled that the tribe has sovereign immunity and dismissed it from suit.

Indian tribes are sovereign, meaning they have the right to regulate their internal affairs. Sovereign immunity bars claims without the tribe’s consent. However, the tribes, in order to win state approval of gambling operations, agreed to let casino patrons sue the casinos and even the tribes under certain circumstances.

In most cases, tribal court laws offer very little protection to the public or non-tribal members, said Bill Rucker, who is working with the Hooke family.

The San Carlos Apache Tribal Gaming Enterprise argues that the casino should enjoy the tribe’s legal protection from wrongful death lawsuits because Hooke’s parents were not patrons of the casino and were not injured in the accident.

The tribe argues that they only waive immunity for patrons of the casino, which Hooke’s parents were not. The casino’s insurance policy also only covers patrons in accordance with the state gaming compact, wrote Kevin Parsi, the casino’s attorney.

Rucker says this defense is outrageous.

“The arguments of the defendants — the casino — should be of great concern to everyone in every state where tribal gaming exists,” he said.

That’s just not right, insists Rucker.

Many years ago, the Town of Payson found itself in the middle of a lawsuit after a Mazatzal patron drank too much at the casino bar and then ran over and seriously injured an off-duty police officer in the parking lot.

The family of the officer sued, only to discover that the tribe had sovereign immunity, which shields it against lawsuits. The lawyers focused on Payson then, which ultimately settled out of court — even though no Payson police officers were involved in the accident and the primary liability came from bartenders who continued to serve the man alcohol in the casino.

At the time, Payson was providing contract police protection to the casino. After the tribe refused to take out additional insurance to cover such incidents, the Payson Police Depart­ment ended services on reservation land.

The tribe now has its own police force.

In the Hooke case, the casino claims sovereign immunity.

In addition, the casino argues that it does not recognize Hooke’s parents’ claim for compensation because wrongful death is not recognized “under historical tribal customs, traditions, practices, beliefs or common law of the San Carlos Apache Tribe,” Parsi wrote.

Rucker says he has affidavits from two qualified experts that state the opposite.

The casino also argues that Hooke voluntarily drank that night and drove home, according to court documents.

On April 23, 2011, Hooke reportedly met up with Etpison and another man at the Apache Gold Casino. They drank for several hours, Etpison getting Hooke free drinks, according court documents.

Later, surveillance video from the casino shows Hooke staggering and falling as he walked through the casino and dozing off in the restaurant between midnight and 3 a.m., according to court documents signed by Peter Gorski, the family’s attorney.

Just before 3 a.m., cameras show Hooke stumble from the casino with Etpison and another man, Rucker said. They get into Etpison’s tribal Hummer, drive Hooke to his truck on the other side of the casino and drive away, according to court documents.

Hooke never made it home though. He lost control of his truck, rolled and was ejected.

The casino and Etpison had a duty to “not over serve alcohol to and otherwise use reasonable care to protect Justin Hooke from becoming intoxicated, and then permitting and/or facilitating him to leave the casino” and drive, Gorski wrote in an amended complaint. “Such negligent over service of alcohol was a direct and proximate cause of Justin Hooke’s death.”

Hooke, known as “Joy-Boy,” was the youngest tribal member to pass the San Carlos Apache Tribal bar exam. He was an assistant juvenile prosecutor for the San Carlos Apache Tribe.

“Justin had a limitless future which served as a point of pride and inspiration to tribal members of the San Carlos Apache Tribe,” Gorski wrote.

The casino and Etpison have not been dismissed from the case, Rucker said.

The Roundup reached out to Etpison through the Tonto Apache Tribe, his Facebook profile and the San Carlos tribe, but had not received comment as of press time.

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