REGIONAL REPORT : Tribes’ Immunity Sparks Criticism : Law: Accident victims on Indian reservations are finding that that they cannot recover civil damages. While some dislike the exemption, others say cultural identity is at stake.

Regina Strickland was injured so badly in a fall at an American Indian-run water slide north of San Diego that she says doctors told her she can no longer have children.

She got an apology but no offer to pay her thousands of dollars in medical bills. So she sued. But the tribe had a surprise in store. It filed legal papers noting that it was immune from lawsuits. The court agreed and dismissed the case.

Across Southern California, other would-be litigants have learned the hard way that they cannot recover damages from Indian tribes: The family of a dead boater. The woman who said she fell off a chair at a bingo parlor. The employee who lodged a civil rights claim. Each, like numerous others, summarily bounced out of court.

U.S. law deems Indian tribes sovereign powers, thereby shielding them from all injury lawsuits by non-tribal members.

The tribes have quietly enjoyed the legal perk for 50 years. Now, as federal funding wanes and alternative forms of income become imperative, Southern California tribes are embracing lucrative businesses that increase the rate of contact between Indians and outsiders.

As a result, accidents and disputes connected with those businesses--and lawsuits that often follow--are rising. Dozens of cases already are on record in courts throughout Southern California.

A main question on the reservation and in legal circles is whether the shield of immunity has become a historical relic that unfairly punishes unwitting outsiders--or whether it is essential to protect limited tribal assets and to guard against the loss of cultural identity.

Tom Wenbourne, a lawyer in El Cajon, represented a woman who broke her leg when she slipped and fell on a just-mopped floor at an Indian bingo hall. Although insurance paid for the woman’s medical bills, she sued to recover lost wages, but could not when the case was dismissed on grounds of tribal immunity, he said.

“There needs to be some type of exception for these going Indian concerns actually out there making a profit,” Wenbourne said.

“I think it’s totally unfair,” he said, referring to Indian immunity. “The purpose behind tort law,” legal jargon for personal injury lawsuits, “is to protect individuals. If (Indians) have immunity, they have no incentive to protect people. Maybe if they would have some exposure,” meaning legal liability, “they would be more careful.”

In numerous interviews, Indians and their lawyers said tribes themselves wrestle with the competing notions of being fair to outsiders yet protecting what they have, said Eugene Madrigal, an attorney and Indian from the Cahuilla Reservation in Riverside County.

The issue “goes to the heart of Indian existence” as a separate government, he said.

Allowing an outsider who suffers an accident in Indian country to take a tribe to court can seem like an act of submission to outside dominion, an act history has taught the tribes to avoid, experts said.

What is clearly without question is that the tribes are in the midst of an unprecedented drive to make money. Wooing trash dumps, building enormous gaming parlors, running marinas, even operating water slides, Indians on the 30 or so Southern California reservations have made “economic development” tribal bywords.

Behind the tribes’ drive is a hard truth. Over the past 15 years, the federal government has, in effect, cut the funding it provides them. Meanwhile, the tribes need cash to pay for the basic services they each render as distinct governments of their own.

In fiscal 1991, federal spending on American Indians totaled $3.4 billion, up $700 million from the year before, according to statistics from the Senate Select Committee on Indian Affairs. When adjusted for inflation, that sum is nearly 40% less than the dollars allocated in fiscal 1975, according to a Congressional Research Service study.

“We know those dollars are getting thinner and thinner from D.C.,” said Dennis Miller, chairman of the Morongo tribe in Riverside County, east of Banning. “So if we are going to do something, we need to look to ourselves to get it done.”

Some tribes have gotten it done so well that they can boast of significant assets.

In San Diego County just east of El Cajon, the Sycuan Reservation sports a 55,000-square-foot, salmon pink, V-shaped casino. Built last year to replace a bingo hall put up in 1983, the casino draws about 3,000 per day, more on weekends, for poker, bingo and off-track betting, tribal Chairman Dan Tucker said.

He also said that the casino netted $600,000 in a recent month. Last month, each of the 30 or so adult members of the 96-member tribe was handed a $1,500 quarterly check.

The Morongo offer bingo, too. The Morongo also run a sand and gravel pit and lease billboard space along Interstate 10, which bisects the 36,000-acre reservation, Miller said.

Plans are in the works for an RV center and a truck stop along the freeway, Miller said. Annual net revenues are expected “very soon” to top $1 million, he said.

Along Lake Havasu, on the California side of the Colorado River in San Bernardino County, the Chemehuevi tribe runs a resort, including a marina and restaurant that grosses $4 million a year, said Don Whetten, general manager of the businesses.

On the La Jolla Reservation, in the Pauma Valley north of Escondido, stands the Sengme Oaks Water Park, where Strickland was hurt three summers ago. The 6-year-old water park, general store and campground have a combined annual budget of $1.2 million and attract 150,000 people each year, said Steve Smith, tribal administrator.

What seems incomprehensible to outsiders pouring dollars into the reservations is why an Indian-run enterprise, concededly in business for profit, is untouchable in court when something goes wrong.

In Strickland’s case, the boogie board she was riding on the slide slammed between her legs, bruising, tearing and permanently numbing her groin, according to court papers.

“They’re up there making money on a slide or a bingo game or campsites or whatever else they have on all their Indian reservations. They make beaucoup bucks on all that,” said Strickland, 35, a San Diegan who runs a day-care center. “Yet we can’t sue them?”

Not successfully, according to files in state and federal courts across Southern California. Lawyers said most disputes end short of court.

Among dozens of cases in the files are these:

* Clara Clobes, an elderly Ventura cosmetologist, severely broke her hip while sitting down to play bingo a few years ago at the Santa Ynez Reservation. According to Orange County Superior Court files, she claimed that the chair she was sitting on broke, dumping her onto the parking lot and causing $12,000 in medical bills.

Within months, the case against the tribe was dismissed because it was immune. The case went on against an Orange County group that helped run the bingo games and its insurance company settled shortly before trial, said Clobes’ Los Angeles lawyer, Howard J. Stechel.

* Jonna Lynn Keairns tried federal court in Los Angeles. She brought a sex discrimination suit against the Santa Ynez tribe, claiming she was fired because she had become pregnant. Three months later, U.S. District Judge Mariana R. Pfaelzer dismissed the suit, saying the tribe was immune. The case went no further, attorney Lila M. Porter said.

* William Long, a 42-year-old Rialto termite eradicator, drowned at the Havasu Landing docks. His family sued the Chemehuevi tribe for wrongful death and a San Bernardino Superior Court judge dismissed on grounds of immunity. The California 4th District Court of Appeal affirmed the dismissal.

“I believe we’re all equal under the law, whether Italians, Irish, English or Indians,” said George E. Long, an El Monte lawyer who brought the case on his brother’s behalf. “Indians now are in the mainstream of society. As a result, I say, fine, let them have their marinas and golf courses and bingo games.

“The only thing I’m saying is let the people, no matter who they are, be able to have recourse against them if something goes wrong,” Long said. “That’s all.”

What that attitude ignores, said tribal members and experts in Indian law, is that Indians have played, and still play, a unique role in American society. It is because of that unique status--Indians are the only minority to retain self-government--that the tribes need to remain immune from lawsuits, they said.

In 1831, the U.S. Supreme Court recognized that tribes are “domestic dependent nations,” which exercise authority over their members and territories.

In a landmark 1940 case, the Supreme Court set forth in plain language the extent of tribal immunity: “Indian Nations are exempt from suit without congressional authorization.”

Over the years, the court repeatedly has made it clear, most recently in an Oklahoma case it decided in February, that it has no interest in changing that view, saying it is up to Congress.

Congress has never seen fit to dispense with tribal immunity or to limit it.

Instead, Congress’ “overriding goal” in Indian affairs, according to a 1987 U.S. Supreme Court opinion, has been the promotion of “tribal self-sufficiency and economic development.”

To achieve that goal, the tribes must remain shielded from civil lawsuits, experts said. (They are, however, subject to criminal law.)

Though it is expected to provide governmental services, tribes do not have the sort of tax base other governments enjoy, said Art Bunce, an Escondido attorney who said he has represented virtually every tribe in the region. Tribes “have got to take steps to protect what they do have,” meaning the developing businesses that fund services, he said.

In an accident lawsuit against a municipality, state or the federal government, the financial burden can be spread throughout the community through new taxes, Bunce said. Tribes do not have that ability and once lost, tribal property can never be replaced, he said.

Insurance is readily available to protect assets and some tribes--for instance, the Sycuan, Tucker said--have begun buying it. Too often, the “cost of insurance for some tribal developments is the difference between profit and loss,” Bunce said.

As a distinct government, each tribe retains the right to waive immunity as it sees fit--for instance, on a particular business deal. With contractors and developers, a limited waiver has become common, said Kevin Gover, an Albuquerque lawyer who represents the Campo tribe in southern San Diego County, which is planning to build a landfill.

“We’ve got to--it’s a reality,” said Gover. “If we want to be part of the modern world, we’ve got to meet the conditions everyone else does.”

That is just it, though, experts said. Though Indians are reaching out to the economic mainstream, they remain culturally and politically distinct--with a distinct view on the significance of immunity.

“There are elements of the way a tribe as a state thinks about itself in which immunity, the idea of immunity, is an important symbol,” said Monroe Price, an ex-professor of Indian law at UCLA and the former dean of the Benjamin Cardozo Law School at Yeshiva University in New York.

“Because what immunity means is that it is a state itself that decides what the rules are, whether or not it asserts its own control over its own destinies,” Price said.

Anna Sandoval, until last December chairwoman of the Sycuan, who led the tribe into the high-stakes world of big-bucks gaming, said the tribe wants to be fair to outsiders. But it needs to be true to itself, too.

“I feel that sometimes we lose a little bit of our sovereignty each time we open up new things,” Sandoval said. “You let new people in all the time and you gradually lose something.”

A few moments later, she added: “We kind of live in two worlds. We change hats. One is easier than the other one right now.

“Years ago,” Sandoval said, “it was hard to be Indian because people didn’t like Indians and everybody wanted to be something else. Where we’re at now, it’s hard to be Indian because the outside culture requires so many things to compete, in business, in everything. You have to keep your culture. It’s hard. It’s so easy to go the white man’s route.”

Big Business

Here is a look at the financial empires of selected Southern California Indian tribes:

TRIBE LOCATION MEMBERS BUSINESS REVENUE/BUDGETS* Morongo Near Banning About 900 Bingo; sand Annual net and gravel revenue of operation nearly $1 million Sycuan Near El Cajon 96 Gaming Averaging $300,000 monthly profit Chemehuevi Lake Havasu About 600 Resort $4-million annual gross revenue La Jolla North of About 500 Water slide, $1.2 million Escondido campground, annual budget general store

* Estimates from individual tribes

Source: Tribal officials.