Supreme Court case could expose Indian tribes to new legal risks


Accidents happen. And sometimes these accidents involve the employees of Indian tribes. The Supreme Court is due to hear a case that will rule on the limits of the legal immunity of tribes and their employees. Although it deals with a narrow issue in a personal injury lawsuit, the case could expose Indian tribes to unexpected – and significant – liability in state and federal courts to which the tribes are unrelated.

In Lewis v. Clarke, the Supreme Court will determine whether an employee of a tribal casino – in this case, a limo driver – can be sued for an accident that occurred while the employee was on the clock but outside of Indian lands.

As an academic, I studied the complexities of tribal sovereign immunity, tribal government-owned businesses, and the unique challenges Indian tribes face in federal and state courts. My research leads me to believe that the outcome of the case is important because it could set a precedent that would weaken the ability of tribes to rule.


In late 2011, a limousine driver at the Mohegan Sun Casino crashed Brian and Michelle Lewis’ car on I-95 near Norwalk, Connecticut, injuring the couple in the collision. Normally, under Connecticut law, injured people have two years to file a personal injury claim in state court.

Under Mohegan Law, however, the statute of limitations is one year, not two. For reasons that are not clear on the public record, the Lewis couple did not file a lawsuit until two years after the incident, in 2013. Since it was too late to file a lawsuit in tribal court, they brought an action. the action in Connecticut courts.

And here’s the catch, legally speaking: Indian tribes cannot be sued in state court without their consent. This provision is called “sovereign immunity”. US constitutional law teaches that federal and state governments cannot be sued without their consent, a doctrine that predates the formation of the Constitution. Alexander Hamilton’s Federalist Paper No. 81 enunciated this theory in 1788.

The Lewis couple’s lawyer likely knew that the tribes enjoyed the same immunity and chose to sue the limo driver instead of the tribe, the driver’s employer at the time of the collision.

Personal injury attorneys tend to look for deep pockets that can pay for a million dollar judgment, so suing a limo driver doesn’t seem like a winning strategy if the goal is a big payoff. It appears Lewises’ attorney believes the tribe will step in to pass judgment against their employee.

This lawyer may be right. For business reasons, if the Mohegan tribe wants to keep good employees, they may be forced to pay damages awarded by a state court, as one tribe argued in an earlier case. If a tribe does not provide legal protections for an employee, as other companies would, it could act as a deterrent by exposing employees to undue risk.

The Mohegan Sun is one of the two largest tribal-owned casinos in the United States.
AP Photo / Jessica Hill

Just to whom?

One would be tempted to think of this as a matter of fairness, of ensuring a forum for non-Indians to prosecute tribal employees who might be masked by a tribe’s immunity from prosecution. . In my opinion, fairness to the Lewis couple, however, comes at the expense of fairness to the tribe.

Recall that the tribe provides a forum to resolve personal injury claims against it in tribal court, but with a one-year statute of limitations. Under this law, the Mohegan Tribal Court upheld the sentences handed down against tribal policemen; indeed, the tribe has probably settled thousands of claims over the years.

I have long argued that Indian tribes should provide an adequate forum to deal with the negligent acts of their employees. The Mohegan Tribe did it here by establishing a tribal tribunal and legal process to resolve personal injury claims. In fact, Mohegan was one of the first tribes to start doing it, in the 1990s. But personal injury lawyers have complained about the Mohegan Act because it prohibits punitive damages and damages. other doctrines that can inflate the costs of judgment.

A rational lawyer might conclude that the best bet is to sue in state court and hope for a broader judgment. Lawyers call this forum-shopping a disadvantaged strategy that most believe should be “exorcised”. Or it could be a case where the Lewis couple (or their attorney, in an easy malpractice case) have simply waited too long to file a lawsuit and are trying to resurrect their belated claim in state court.

Most courts would see through these strategies and dismiss the complaint. If the employee was working for the state of Connecticut or for the United States, the courts would most likely have dismissed the complaint, as state and federal government employees are not subject to this type of lawsuit.

Government employees enjoy official immunity, which protects them from personal responsibility for their actions, as long as they are acting within the scope of their employment. These employees can only be prosecuted in their “official capacity” as employees – they are protected by special federal and state laws established to assess government accountability. The Mohegan Tribe did the exact same thing with their employees, but under tribal law.

It appears the Lewis couple want to avoid the process established by the Mohegan tribe by pursuing the limo driver as “individual ability” rather than “official ability”. While state and federal immunity cannot be so easily circumvented, Indian law is apparently more easily circumvented.

In Supreme Court cases, verdicts tend to run counter to tribal interests.
Roll call of Bill Clark / CQ via AP Images

Prejudice of the Supreme Court against the tribes?

By agreeing to hear the Lewis couple’s petition, the Supreme Court may have shown its bias against Indian tribes. In recent years, lower courts have been divided over whether aggrieved parties can avoid tribal law and tribal immunity by suing individual tribal employees. When there is a split in authority on an important issue, the Supreme Court steps in to resolve the split.

Tellingly, there is a very similar petition involving the Tunica-Biloxi tribe of Louisiana that was submitted for review along with the Lewis petition. But the court chose the Lewis petition instead. The difference? In the tribal petition, the tribe lost in the lower court. If the court intends to rule in favor of parties like the Lewis couple, then it makes sense to accept their appeal rather than the tribe’s appeal, giving the court an opportunity to correct the error perceived by the lower courts and leave the other decision alone.

The decades-long history of the court’s treatment of tribal interests – tribes have a worse win percentage than convicted felons – confirms everything but how the court looks here. The court generally tends to hear cases for reversal – like the Mohegan case – and not cases it agrees with – like the Tunica-Biloxi case. My research shows that the Supreme Court puts tribal interests at a significant disadvantage in virtually all cases. In fact, the Supreme Court agrees to hear about one percent of tribal appeals, but accepts to hear about a third of appeals from those who oppose tribes.

In Lewis, if the Supreme Court finds that tribal workers can be sued in state court, any time a tribal worker leaves the reservation they can be sued outside of the tribal courts. A big potential problem can arise when tribal police and ambulance drivers respond to 911 calls outside the reserve through intergovernmental cooperative agreements. Tribes may be forced to reconsider these agreements if their costs increase, and people on or near reserve land will be less secure. Additionally, tribes may be less able to send social workers, probation officers, and other staff to provide services to off-reserve tribe members if liability (and insurance) costs rise too much. . Tribes could also reconsider off-reserve business activities, which is a boon to local economies.

In my opinion, Lewis v. Clarke is not a case designed to ensure fairness for injured victims. Remember, this is the Roberts tribunal, which observers claim has a significant pro-business bias. Apparently, tribal businesses don’t matter.

Instead, it looks like this case is a way for the Supreme Court to embarrass tribal interests. In the latter case of tribal immunity, four judges (Scalia, Alito, Ginsburg and Thomas) would have completely eliminated the doctrine. Justice Scalia is dead, but Chief Justice Roberts and Justice Kennedy are not supporters of tribal sovereignty. Tribal interests face an uphill battle here.

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