Written by Vice Chief Justice Ann Timmer, the 12-page opinion (below) sets forth six factors for judges to consider in determining the immunity question. Those include the business's creation/form, purpose, relationship and financial relationship with the tribe, whether the tribe intended to share its immunity, and how federal policies would be furthered by granting immunity. Boiling it down, she noted "(e)vidence demonstrating the functional relationship between the tribe and the entity should also be provided to demonstrate that the entity is—in practice and on paper—an arm of the tribe.
Justice Clint Bolick wrote a brief concurring opinion to point out a strange aspect to the case that should prompt the U.S. Supreme Court to pull back its views on expansive sovereign immunity for tribal businesses. He noted that the rafting accident took place on Arizona state-owned land* and that Arizona's Constitution states that citizens' right to recover damages "shall never be abrogated." Yet, he notes, federal law has extended sovereign immunity to tribal-owned businesses and the possible conflicts.
*Who knew that Arizonans own the land underneath the Colorado River in the middle of the national park? I did not.
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