PAUL NUGENT, Employee/Appellant, v. SEVEN CLANS CASINO and BERKLEY RISK ADM’RS CO., LLC, Employer-Insurer.

JUNE 17, 2014

No. WC13-5649


JURISDICTION - SUBJECT MATTER.  The compensation judge correctly concluded that the employer, the Red Lake Band of Chippewa Indians, was immune from liability for Minnesota workers’ compensation benefits pursuant to Tibbetts v. Leech Lake Reservation Bus. Comm., 397 N.W.2d 883 (Minn. 1986).


Determined by:  Wilson, J., Stofferahn, J., and Hall, J.
Compensation Judge:  Gary P. Mesna

Attorneys:  Joshua E. Borken and Elisa M. Murillo, Fields Law Firm, Minneapolis, MN, for the Appellant.  Joseph Plumer, Plumer Law Office, Bemidji, MN, for the Respondents.




The employee appeals from the compensation judge’s decision that Seven Clans Casino is immune from liability for benefits under the Minnesota Workers’ Compensation Act.  We affirm.


The relevant facts are essentially undisputed.  The employee allegedly sustained an injury while employed by Seven Clans Casino, which is wholly owned and operated by the Red Lake Band of Chippewa Indians [the Band].  The Band is a federally recognized Indian tribe, and the employee is not a member of that tribe.  In response to a claim petition, the Band filed a motion to dismiss, asserting that the Band had established a Tribal Workers’ Compensation Plan as the sole remedy for work injuries and also that the Band had not waived sovereign immunity from suit.  Attached to the motion was a copy of the Band’s plan and an affidavit by the Band’s attorney.  Following a telephone conference, a compensation judge concluded that the Band had sovereign immunity, that the Band had not waived that immunity, and that the State of Minnesota lacked jurisdiction to enforce its workers’ compensation act against the Band.  The employee appeals.


“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.”  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).


The employee acknowledges that Indian tribes are not subject to suit unless Congress has authorized the suit or the tribe has waived its immunity.  See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).  The employee argues, however, that Congress authorized suit in matters like the one now before us pursuant to 40 U.S.C. § 3172, which provides as follows:

The state authority charged with enforcing and requiring compliance with the state workers’ compensation laws and with the orders, decisions, and awards of the authority may apply the laws to all land and premises in the State which the Federal Government owns or holds by deed or act of cession, and to all projects, buildings, constructions, improvements, and property in the State and belonging to the Government, in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State in which the land, premises, projects, buildings, constructions, improvements, or property are located.

In fact, the employee points out, the Minnesota Supreme Court in Swenson v. Nickaboine, 793 N.W.2d 738, 71 W.C.D. 69 (Minn. 2011), expressly held that “section 3172 allows Minnesota to adjudicate a dispute arising out of an injury claimed to have occurred on land held by the federal government in trust for an Indian tribe.”  Id. at 745, 71 W.C.D. at 78.  Observing that the injury in the present case likewise occurred on land held in trust for the Band by the federal government, the employee asserts that Swenson is controlling and that he is therefore entitled to claim benefits from the Band under the Minnesota Workers’ Compensation Act.  We disagree.

The employer in Swenson was not an Indian tribe but was instead a tribal member who was operating a private business.  As the Swenson court specifically noted, the doctrine of sovereign immunity does not immunize individual members of the tribe, and the parties in Swenson had agreed that the employer there was not entitled to sovereign immunity.  Id. at 744 n.1, 71 W.C.D. at 76-7 n.1.  In contrast, the employer here is the Band itself, and there is no evidence whatsoever to indicate that the Band waived or intended to waive its immunity.  On the contrary, the language of the Band’s Tribal Workers’ Compensation Plan expressly indicates that the plan provides the exclusive remedy for injuries sustained by employees of the tribe.  The plan also expressly provides that the Band did not waive its immunity from suit and that the plan should not be construed to mean otherwise.

In our view, the employee’s claim is governed not by Swenson but instead by Tibbetts v. Leech Lake Reservation Bus. Comm., 397 N.W.2d 883 (Minn. 1986).  In that case, the supreme court concluded that a provision substantively identical to the one relied on by the employee as a basis for his jurisdiction claim - - in the present case, 40 U.S.C. § 3172[1] - - was “never intended to apply to Indian tribes themselves.”  Tibbetts, 397 N.W.2d at 888.  According to the court, “that act simply cannot be read to confer upon states jurisdiction over otherwise immune or exempt parties.”  Id.

There is one potentially relevant factual difference between the Tibbetts case and the case now before us.  That is, the employee in Tibbetts was an enrolled member of the defendant tribe, whereas the employee in the present matter is not a tribal member.  Relying on this distinction, the employee maintains that the present matter should be analyzed under preemption principles, as employed by the concurring justices in Swenson.  Essentially, the employee contends that the state’s interests are more compelling when the injured employee is not a tribal member, whereas the tribe’s interests should predominate in cases of injury to members of the tribe.  However, again, Swenson was not decided on sovereign immunity grounds, because the employer there was a private tribal member as opposed to the tribe itself.  Moreover, the majority in Swenson did not employ the preemption analysis that the employee urges us to apply here.  Finally, we see nothing in either Swenson or in Tibbetts to support the conclusion that Tibbetts applies only if the injured employee is a member of the defendant tribal band.  Rather, the analysis in both cases supports the conclusion that it is the identity of the employer, not the employee, that is dispositive.

The compensation judge correctly concluded that the Band is shielded from Minnesota State workers’ compensation liability pursuant to the doctrine of sovereign immunity, in accordance with Tibbetts.  We therefore affirm the compensation judge’s dismissal of the employee’s claim on jurisdiction grounds.

[1] In Tibbetts, the similar provision was codified at 40 U.S.C. § 290.