TESTIMONY

OF

DENNIS A. FERDON, ESQ.

ATTORNEY - NORWICH, CONNECTICUT

BEFORE THE COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

CONCERNING S-1691 THE AMERICAN INDIAN EQUAL JUSTICE ACT

PRESENTED ON

NAY 6, 1998

Mr. Chairman, and members of the Committee, I am here to support passage of the "American Indian an Equal Justice Act, 11 Senate Bill 1691 because I believe tribal sovereign immunity should he abolished to allow a person injured an tribal land or as a result of the negligent conduct of a tribal member to seek redress for those injuries in state court. My law practice is exclusively devoted to the representation of injured victims of tortiou3 conduct. Norwich, Connecticut, where I practice, is the major city in southeastern Connecticut, home to two of the most successful tribal casinos in the country, those of the Mashantucket Pequats and the Mchegane. I would like to provide you with several examples of the injustice of tribal sovereign immunity as it relates to tort cases.

I represent a man who was employed as a dealer at roxwoods Casino, which is operated by the Mashantucket Pequat Gaming Enterpriser a division of the MasHantucket Pequot Tribe. The casino is located within the settlement boundary established by the 1983 Act of Congress granting federal recognition to the Mashantucket Pequot Tribe, (Public Law 98-134), and within that boundary, the tribe is recognized by the United States government as having legitimate land claims. My client, as a condition of his employment a,-- the casino, is required by the tribe to park his car in a parking lot designated for use by employees only. That parking lot is located outside the settlement boundary, within "fee land," owned by the tribe but which is still subject to property taxes and local land use regulations governing zoning, subdivisions and inland wetlands.

My client arrived at the employee parking lot one evening to report for work, got out of his car and stopped and fell in the lot due to a-n accumulation of ice and snow. The tribe had taken absolutely no steps to clear the parking lot of ice and snow. In fact, during my investigation of the case, I was told by a representative of the tribe who I' s responsible for maintenance of the parking lot that seventeen employees of the casino fell in that parking lot on the night my client fell due to a heavy accumulation of ice and snow.

My client suffered severe injuries as a result of his fall, consisting of herniated disks in his cervical and lumbar spines and impingement syndrome in his right shoulder- His 'Injuries rendered him totally disabled from performing any type of work for about eighteen months. Thereafter, he was cleared for light duty by his treating physicians, but was not able to perform his job as a dealer due to the restrictions placed upon hi-m by his doctors. He was not allowed by his physicians to stand for a long period of time or to perform activities involving repetitive pushing and pulling. For a year and a half after he was cleared for work, he attempted to obtain employment in many casinos around the country but was unable to find a job because of his restricted ability to work resulting from his injuries. Finally, three years after he was injured, he found work compatible with his restrictions. Although he recovered amply to find -work, my client was left with permanent impairments of function of his neck, back, master arm and right leg as a result of his injuries.

My client was able to collect workers' compensation benefits f rom his employer, the Mashantucket Pequot Gaming Enterprise, but he was prevented by tribal sovereign immunity to recover from the tribe the full amount of damages he suffered as a result of his fall. If the parking lot where he fell had been owned by any entity other than the tribe, my client could have filed a civil action in state or federal court against the owner of the property to recover damages resulting from the negligence of the property owner. No class of property owner in this country except an Indian tribe is immune from such a civil action. Whether the parking lot had been owned by the United States government, the State of Connecticut, a municipality of Connecticut, a church or other charitable organization, a corporation, or an individual, my client could have filed a civil action against the owner, in either state or federal court, to recover damages resulting from his injuries from that owner. in that action, he probably would have recovered between $300,000 and 5350,000 as compensation for his injuries. My client was not able to file a civil action in state or federal court against the tribe because of tribal sovereign immunity.

The only remedy other than workers' compensation available to my client was to file a civil action against the tribe in its tribal court. The Mashantucket Pequot Tribe established a tribal court shortly after the casino opened in 1992. The tribal court ordinances provide that tribal ,sovereign immunity is waived, under -very limited circumstances. The circumstances of my client's injuries were such that he could have pursued a civil action against the tribe in tribal court, seeking damages resulting from his injuries. Unfortunately, civil. cases in tribal court a-re tried before a judge, not a jury. Trial by jury is prohibited by tribal law. The judges presiding over tribal court are appointed by the tribe - Furthermore, the tribe has placed a limit an the amount of damages an injured plaintiff can recover from the tribe in tribal court. Thus, the remedy provided by tribal law for my client's Injuries was woefully inadequate. For that reason, I did not file a civil action on his behalf against the tribe in tribal court.

In tribal court if a plaintiff in a civil action proves that his/her injuries were caused by the negligence of the tribe, he/she may recover the amount of his/her medical bills and lost wages, but the amount he/she can recover for pain and suffering, permanency of injury and emotional distress is limited to 50% of the a-mount of his/her medical bills and lost wages. For example, my client incurred medical hills of about @20,000 as a result of his slip and fall. He suffered lost wages of about $68,000 as a result of being out of work for three years following his injuries. If I had filed a civil action an his behalf in tribal court, and T was successful in proving that my client's injuries were caused by the negligence of the tribe, the judge of the tribal court- would have awarded to my client his lost wages of 568,000, and his medical bills of $20,000. The judge, however, would not be able to award my client an amount sufficient to fully compensate him for pain and suffering, permanency of injury and emotional distress. The maximum amount the judge could have awarded to my client for those intangible elements of damage is $44,000, which is 50% of the amount of his medical bills and his lost wages combined. That is the cap the tribe has placed on awards for pain, suffering, permanent injury and emotional distress. See Ordinance Number 011092-01 of the Mashantucket Pequot Tribal Council, which is attached and marked Exhibit A.

It would have been fruitless to file a civil action in tribal court on behalf of my client because the maximum award I could have obtained for him ($132,000) would not put any money in his pocket to compensate him for his injuries. The total award in tribal court would have been $132,000. Out of that award, my client would he required by tribal law to reimburse the Mashantucket Pequot Gaining Enterprise for the money it paid to him or an his behalf f or workers' compensation. The amount of workers, compensation benefits paid by the Mashantucket Pequot Gaining Enterprise through its insurer totaled approximately $130,000. Thus, if I obtained an award of $132,000 for my client in tribal court, he would be left with $2,000 after paying the workers' compensation lien. On the other hand, in state or federal court, after my client recovered $300,000 to $350,000 (the range for the award, in my opnion) he would have repaid the workers' compensation lien, as required by Connecticut law, and been left with $170,000 to $220,000, as compensation for his injuries. Thus the remedy he could have obtained in state of federal court, but for tribal sovereign immunity, was just. The remedy available in tribal court was so unjustly limited that there was absolutely no point in wasting time or money in to pursue a civil action in tribal court to seek damages for his injuries.

I represent a client who was Injured on the reservation of the Mashantucket Pequots, within the settlement boundary established by the 1983 Act of Congress I described earl±er, My client was employed by a Connecticut corporation, a concrete company. He was a la-borer. The construction site on the reservation at which he was working was controlled by a general contractor, another Connecticut corporation, hired by the Mashantucket Peauct Tribe to erect a public safety building. The general contractor hired a subcontractor, a Rhode Island corporation to erect steel studs. While my client was on the ground adjusting some forms for the concrete work, one of the employees of the steel contractor dropped a steel stud from the second story of the building being erected, which struck my client on the head. He suffered horrible injuries to his head, neck and back. He has undergone surgery an his cervical spine for removal of a herniated disk. He suffers from severe low back pain, which cannot be cured by surgery. He has not been able to work at his regular job since the accident. He is severely depressed a-bout his inability to work at his regular job and the pain from which he suffers.

I filed a civil action on behalf of my client, seeking damages from the Rhode Island contractor whose employee dropped the steel stud ' and the general contractor, claiming that both of them were negligent in their actions on the construction site. In that civil action, which I filed in state court, the general contractor asserted a special defense to my client's complaint, claiming that he cannot pursue his action in state court because of tribal sovereign immunity The general contractor, a Connecticut corporation, contends that because the injury occurred on the Mashantucket Pequot Tribe's reservation, my client's action should be heard in the tribal court, even though none of the parties to the action are either tribal members or the tribe itself. I thoroughly researched this issue and it is reasonably possible that a judge will order me to transfer the case to tribal court. if that happens I will withdraw the case because of the limited remedy available in tribal court, i.e., lack of trial by jury and the cap on damages I described earlier. in that scenario, my client would be left with no remedy at all against the pam--@--±es whose negligence caused him to suffer his devastating injuries. Those parties, a Rhode Island corporation and a Connecticut corporation, should not be shielded from liability because of tribal sovereign immunity. Rather, they should be responsible for payment of my client's damages resulting from their negligent conduct.

Mv client I s damages resulting f rom the negligent conduct of the contractors are substantial. He has been rendered totally disabled from performing his regular job during the three and a half years since the accident. ' His medical bills now -total approximately 537,000.00. He will continue to incur medical bills in the future for treatment of his depression and his low back injuries. He has been left with a 13% permanent impairment of function of the cervical spine. He probably will be left with at least a 10% permanent impairment of function of the lumbar spine. It is likely he will be left with a 5* to 10% permanent -impairment of function of the whole person due to his depression resulting from his Injuries. He is currently receiving workers' compensation benefits, at the rate of approximately 5200 per week. At the ti-me he was hurt, he was earning approximately $350 per week. His workers' compensation benefits will stop about a year from now, due to the limitations on workers, compensation benefits contained in state law. When his benefits stop, and he continues to be unable to work in the construction field, he will probably become destitute, unless he can recover damages for his injuries from the contractors whose negligence caused him to be hurt. He is 38 years old. He has the equivalent of a high school education, and has never worked in any industry other than the construction industry. His limited education and training, coupled with his physical injuries and the depression resulting from those Injuries will make it very difficult for him to find work that he can perform. If the state court dismisses the action, and orders my client to litigate his claim against the contractors in tribal court, he will he financially ruined. If the case remains pending in state court, my client will probably recover damages from the negligent contractors in excess of $500,000.

There is another issue I would like to raise before this committee. My of f ice is located in a building in downtown Norwich, Connecticut - A-bout a year ago the building was purchased by the Mashaztucket Pequot Tribe. It is not located within the settlement boundaries established by the Act of Congress I previously described. It is not trust land which eventually can become part of the reservation. it is land held in fee simple by the tribe. If I am injured because of a defect on the property, because the Mashantucket Pequot Tribe has not properly maintained the building, I can not make a claim for damages against the tribe in any forum - state court-, federal court or the tribal court, because of tribal sovereign immunity. As I explained earlier, the tribe has waived its sovereign immunity in very limited circumstances In particular, the tribe will consent to allow civil actions to be filed against itself, in tribal court, for injuries sustained at the casino, or on those parts of tribal land used by casino employees during casino business. The tribe did not, however waive its immunity from civil actions arising from injuries sustained by visitors to its building in Norwich, in which my office is located, and no casino business is done- . Thus, if I am injured due to a defective condition in the building, I ha-e no remedy at all f or the damages caused by the tribe's carelessness.

Two other tenants of the tribe, with offices in the same building as mine, are the Internal Revenue Service, a federal agency, and the Social Security Administration, another federal agency. If d citizen of the United States goes to the IRS office to pay his/her taxes, or visits the SSA to obtain information about retirement benefits, and is injured in the building or on its grounds because of negligent maintenance of the building by the tribe, that injured citizen has no remedy against the tribe because of tribal sovereign immunity.

The doctrine of tribal sovereign immunity is antiquated. When Congress first established the doctrine, over one hundred and fifty years ago, Indian tribes were not gloriously successful entrepreneurs. It was not foreseeable then by Congress that Indian tribes today would be operating major casinos where thousands and thousands of people come to play

and work each day- The law must change with the times. In this day and age, when Indian tribes are reaping the rewards of their commercial success, they must also fulfill their

responsibilities as property owners. All property owners in this country, except Indian tribes, are subject to tort law.

If people are injured on property owned by anyone other than an Indian tribe, because the owner was careless in maintaining the property, the owner is liable f or the damages suffered by the injured victims. That negligent property owner must bear the consequences of his/her own carelessness. Indian tribes do not suffer the consequences of their carelessness because they can not be sued in state court or federal court f or damages resulting from injuries caused by their negligent maintenance of their property. Cloaked with sovereign immunity, Indian tribes have no incentive to safely maintain their property. Until sovereign immunity is abolished, things will never change. Conditions an Indian land will continue to be dangerous and people there will continue to be hurt - If tribal sovereign immunity is abolished, perhaps the tribes will take greater care to make their property safe for their visitors. When their mantle of immunity is shed, even if tribes. do not respond by exercising more care, justice will be served. Those victims injured by the tribes I neglect will be able to seek reckless from the tribes in the courts of our states.

Thank you.