TIPS: Technical Information Perspectives and Solutions (TIPS) - March 2008 ADA and TRIBAL-OWNED and OPERATED CASINOS Copyright © 2008 The DBTAC: Southeast ADA Center publishes a variety of TIPS intended to provide current information on issues and concerns related to the Americans with Disabilities Act (ADA) for information specialists, advocates, business owners, government agencies, managers, and the general public. The examples used in the TIPS are based on actual questions received by the Southeast DBTAC. They are designed to strengthen the capacity of those who provide information and technical assistance to help others achieve effective compliance with the ADA. The TIPS reflect the best professional judgment of the Southeast DBTAC staff and its regional affiliate network. If you have any questions or suggestions about how to improve TIPS, please contact the Southeast DBTAC by sending an email to sedbtacproject@law.syr.edu. Copyright Permission For copyright permission, email the Southeast DBTAC at sedbtacproject@law.syr.edu. Organizations may reproduce this fact sheet for non-commercial use provided they acknowledge the Southeast DBTAC as the copyright owner and include the following credit statement: Reprinted from the DBTAC: Southeast ADA Resource Center website at www.sedbtac.org. Situation A woman in New Mexico who uses a guide dog went with a group of friends to a casino on local tribal property. This person was picked up with the group by a casino bus, entered the casino, did a little gambling and then decided to get something to eat. When she tried to enter the restaurant, she was told she couldn't bring her dog in and was eventually escorted outside the facility by security. She waited two hours in the sun until the next bus left to take the group back. Question: Does the Americans with Disabilities Act (ADA) apply in this situation? Response: Federal law recognizes the sovereign authority of Native American tribes to govern themselves. Under the doctrine of sovereign immunity, state and federal courts do not have jurisdiction to hear private lawsuits brought against Native American tribes. Nonetheless, this immunity does not authorize blatant disregard for federal law. Applicability of the ADA to Native American tribes, lands, and entities likely varies by ADA Title. Title I, which deals with discrimination in employment, does not apply to tribal government employers because the term “employer” under the ADA expressly excludes “Indian tribes.” Title II of the ADA covers all State and local governments and their agents and instrumentalities. While Title II does not mention or exclude Native American tribes, it is unlikely Title II would apply to a tribal government because it is not a state or local government for purposes of the Act. Nonetheless, programs of a state or local government located on reservation land must comply with Title II of the ADA. The applicability of Title III is less clear. ADA Title III applies to places of public accommodation and commercial facilities. In Florida Paraplegic Association v. Miccosukee Tribe of Indians of Florida (1999), the Eleventh Circuit addressed whether there was a private right of action against Indian Tribes violating Title III of the ADA. The court held that Congress did not wish to abrogate the sovereign immunity of Indian tribes when they passed the ADA. The Supreme Court has said that unless Congress “unequivocally expressed” its intention for Indian tribes to be amenable to suit, Indian tribes would be immune from liability. Santa Clara Pueblo v. Martinez (1978). Thus, because there is no mention of Congressional intent to extend the applicability of Title III to Indian tribes, the plaintiff’s suit in Miccosukee was dismissed. Similar to Title II, however, the text of Title III does not provide any exceptions based on the location of covered entities. The Department of Justice (DOJ) issued a Technical Assistance letter in June 1996 addressing whether non-tribal businesses located on reservation land were exempt from the ADA. DOJ asserted that Native American individuals and entities not involving tribal government that own or operate places of public accommodation or commercial facilities are covered by Title III of the ADA if their business is open to the general public. Moreover, Title III can be enforced against Indian tribes through legal action brought by the Attorney General of the United States. The court explained in Miccosukee that if there is a pattern of discrimination or if the discriminatory act raises an issue of general public importance, Title III allows the Attorney General to bring a suit to compel compliance with the statute via a court injunction. 42 U.S.C. § 12188(b)(1)(B). The Attorney General may not seek monetary damages. In sum, if the casino is wholly owned and operated by the tribal government, then it is not covered by the ADA. However, if the casino is owned by a private entity, including Native Americans living on the reservation, and it is open to the general public, the casino and its restaurant are covered by Title III of the ADA. Resources The following links provide additional information about ADA and Tribal-Owned and Operated Casinos. * ILRU: Federal Disability Rights Laws as Applied to Native American Tribes, Legal E-Bulletin, June 2003 http://dlrp.org/html/publications/ebulletins/legal/2003/may2003b.html * Department of Justice Technical Assistance Letter www.usdoj.gov/crt/foia/cltr194.txt For More Information * Florida Paraplegic Association v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999), available at http://lw.bna.com/lw/19990216/975418.htm * Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=436&invol=49 DISCLAIMER: The Disability and Business Technical Assistance Center (DBTAC) – Southeast ADA Center (Southeast DBTAC) is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA) under Grant No. H133A060094. However, you should be aware that NIDRR is not responsible for enforcement of the ADA. For more information or assistance, please contact the Southeast DBTAC via its web site at www.sedbtac.org or by calling 1-800-949-4232 (Voice/TTY). The information, materials, and/or technical assistance are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA. The Burton Blatt Institute at Syracuse University (BBI) does not warrant the accuracy of any information contained herein. Any links to non-BBI information are provided as a courtesy. They are not intended to nor do they constitute an endorsement by the BBI of the linked materials. 2 DBTAC: Southeast ADA Center (Southeast DBTAC) A Project of the Burton Blatt Institute (BBI) of Syracuse University 1419 Mayson Street ? Atlanta, GA 30324 * (404) 541-9001 * (800) 949-4232 (v/tty) * (404) 541-9002 (Fax) sedbtacproject@syr.law.edu * www.sedbtac.org Funded by the National Institute on Disability and Rehabilitation Research of the U.S. Department of Education #H133A060094