Moreover, the fact that plaintiff is left without recourse is not a reason to find no tribal sovereign immunity. Miller v. Coyhis, 877 F.Supp. 1262, 1266-67 (E.D. Wis. 1995) (defendant entitled to tribal sovereign immunity despite no available means for plaintiff to challenge defendant's conduct).
However, Wis. Stat. § 165.92(3m) requires a waiver of tribal sovereign immunity only to the extent necessary to allow enforcement of the tribe's liability in state court. Miller v. Coyhis, 877 F. Supp. 1262, 1267 (E.D. Wis. 1995) (similar finding with respect to previous version of § 165.92). See also Genskow, 825 Fed. Appx. at 390 ("Because the agreement specifically limits the tribe's liability to suits in Wisconsin state courts, an arrangement explicitly permitted under Wis. Stat. 165.92(3), the tribe did not waive its sovereign immunity and thereby consent to suits in federal court.")
Id. (characterizing the tribal exhaustion rule as "an inflexible bar to consideration of the merits of the petition by the federal court" when the dispute involves a "reservation affair"). In this case, employment relations within the Casino, created under Tribal authority for the economic betterment of the Tribal community, constitutes a "reservation affair" subject to the tribal exhaustion rule, see Miller v. Coyhis, 877 F. Supp. 1262, 1267 (E.D.Wis. 1995) (Gordon, J.) (characterizing "the federal claims advanced by Mr. Miller, an Indian, [as] tribal matters — his termination by the Community from his position as the Community police chief"); this is especially true where the Casino is located on the reservation and the federal statute at issue, the ICRA, does not create federal court jurisdiction and requires Barker to bring his due process claim in Tribal Court. See Santa Clara, 436 U.S. at 58, 98 S.Ct. at 1677.
Beecher, likewise, is consistent with the federal case law that the tribe's immunity waiver in one suit does not waive immunity in a second suit arising out of the same subject matter. If the unfairness and inequity of a tribal employee negligently killing or battering someone is not enough to waive immunity, it follows that allegations of vexatious and bad faith litigation are also not enough to waive or abrogate it.See, e.g., Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d 1224 (11th Cir. 2012) (finding tribal immunity where tribal employees knowingly overserved alcohol to casino patron and watched her get into her car intoxicated, resulting in the patron's death in an automobile accident); Miller v. Coyhis, 877 F.Supp. 1262 (E.D. Wis. 1995) (finding tribal immunity where one tribal employee assaulted and battered another).Second, we are persuaded by Beecher because we cannot find a single case, and none has been cited to us, holding that litigation conduct in one lawsuit is a clear, explicit, and unmistakable waiver of tribal immunity in a subsequent, related lawsuit.