NEW: Grand Canyon Whitewater Rafting Accident Prompts Arizona Supreme Court To Set New Test On Whether A Tribal-Related Business Is Entitled To Sovereign Immunity (READ Opinion)

Sara Fox was seriously injured in a whitewater rafting accident in the Grand Canyon four years ago. Today, her case against the Hualapai-owned rafting company was righted by the Arizona Supreme Court. The Court's unanimous opinion also sets up a new test to determine whether a tribal-related business is entitled to sovereign immunity in future legal cases.

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 Timmer noted that the rafting business had not presented evidence to the trial court demonstrating that it is an arm of the tribe entitled to immunity from the suit; she noted that the business might try to do so now that the case is going back to the trial court for further proceedings.

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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