On December 7, the Washington Supreme Court held that businesses owned by American Indian tribes were immune from employment discrimination laws unless the tribes had waived their sovereign immunity. See Wright v. Colville Tribal Enterprise Corp., No. 77558-3 (en banc). Writing for the majority, Justice Richard Sanders concluded that “tribal sovereign immunity protects a tribal governmental corporation unless the tribe waives or Congress abrogates immunity.” The Court expressly found this protection applied to casinos and other businesses owned by the Colville Tribe.
Does this mean that Washington’s tribal casinos and other businesses are immune from unfair competition laws? It’s an interesting question. In College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 131 F.3d 353, 366 (3d Cir.1997), aff’d, 527 U.S. 666 (1999), the Third Circuit recognized that the successful assertion of an immunity defense by a state that had not expressly waived its sovereign immunity was a “reasonable possibility.” Indeed, the U.S. Supreme Court on appeal found no federal jurisdiction existed for alleged Lanham Act violations by a state agency. The Washington Supreme Court’s Wright decision appears to add weight to the argument that if a tribe does not expressly waive its sovereign immunity, it is immune from suit under both the Lanham Act and the Washington State Consumer Protection Act.