REBECCA BOONE Associated Press writer | Posted: Wednesday, August 31, 2005 12:00 am
BOISE, Idaho - The parents of a teenager killed in a hunting accident cannot sue the Nez Perce Tribe for wrongful death, U.S. District Judge Edward Lodge has ruled.
Lodge dismissed the wrongful-death lawsuit filed by Dana and Deanna Thomason on Monday.
"Because the Nez Perce Tribe is afforded sovereign immunity which it has not expressly waived in this case nor authorized by Congress, the court finds the motion to dismiss should be granted," Lodge wrote.
The case arose from the September 2002 death of 17-year-old Colby James Thomason.
Thomason and a friend were practicing bugling for elk - using a special tube to mimic the animals' mating call in anticipation of hunting season - on private property within the Nez Perce Reservation.
The sun had set when Kim Ellery Rickman Jr. drove down a nearby road and heard the bugling.
Rickman, a Nez Perce Tribal member, stopped his car, crossed a fence and entered the private property. Rickman began to bugle as well, and when he heard Thomason's returning call, he fired in the direction of the sound.
The bullet struck Thomason, killing him.
Rickman, then 23, was charged in federal court with involuntary manslaughter and use of a firearm during a crime of violence resulting in death. As part of a plea agreement with prosecutors, he pleaded guilty to involuntary manslaughter and was sentenced to three years in prison followed by three years of probation.
Two years after their son's death, Dana and Deanna Thomason filed the wrongful death lawsuit against the tribe, claiming the Nez Perce had a societal duty to train tribal members in hunter safety and alleging that the tribe's failure to do so had contributed to Colby's death.
As a tribal member, Rickman is not bound by state hunting regulations and was hunting legally at the time.
The Thomasons contended that the tribe's treaty-granted hunting rights do not cover the use of modern hunting equipment, such as rifles, and allow only ancestral hunting methods.
Lodge disagreed, saying the tribe's use of modern hunting equipment has been upheld by other court decisions.
"The Supreme Court has clearly held that Indian tribes are subject to suit only where Congress has authorized the suit or the tribe has waived its sovereign immunity," he wrote.
Rebecca Miles, chairwoman of the Nez Perce Tribe, said the situation was sad for both families.
"Our hearts go out to the Thomason family, just as they would to anyone who suffers loss resulting from a tragic accident," Miles said in a prepared statement. "The law is clear: individuals are responsible for their actions, and when they act recklessly they will be punished criminally."