Let me make it clear about Supreme Court instance could expose Indian tribes to brand brand new risks that are legal

Let me make it clear about Supreme Court instance could expose Indian tribes to brand brand new risks that are legal


Professor of Law & Director associated with native Law & Policy Center, Michigan State University

Disclosure statement

Matthew L.M. Fletcher works for eight Indian tribes as a judge that is appellateGrand Traverse Band of Ottawa and Chippewa Indians, Hoopa Valley Tribe, Mashpee Wampanoag Tribe, Nottawaseppi Huron Band of this Potawatomi, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, Poarch Band of Creek Indians, Pokagon Band of Potawatomi Indians, and Santee Sioux Tribe). He could be associated with the Grand Traverse Band of Ottawa and Chippewa Indians as a member that is enrolled.


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Accidents happen. And quite often the employees are involved by those accidents of Indian tribes. The Supreme Court is planned to know instance that may rule on the the restrictions of appropriate resistance of tribes and their workers. The case could expose Indian tribes to unexpected – and significant – liability in state and federal courts to which tribes are strangers although it deals with a narrow question in a personal injury lawsuit.

The Supreme Court will address whether a tribal casino employee – 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 in Lewis v. Clarke.

As being a scholar, i’ve examined the complexities of tribal sovereign resistance, tribal government-owned companies additionally the unique challenges Indian tribes face in federal and state courts. My research leads me personally to think the end result for the full instance is essential since it could set a precedent that will damage tribes’ ability to govern.

The backdrop

In belated 2011, a Mohegan Sun Casino limousine motorist rear-ended Brian and Michelle Lewis’ vehicle on I-95 near Norwalk, Connecticut, hurting the few into the collision. Usually, under Connecticut legislation, hurt individuals have couple of years to register a accidental injury claim in state court.

Under Mohegan legislation, but, the statute of restrictions duration is just one 12 months, maybe maybe maybe not two. The Lewis couple did not bring a suit until two years after the incident, in 2013 for reasons not clear in the public record. As it was far too late to sue in tribal court, they brought the suit to Connecticut courts.

And right here is the sc sc sc rub, legitimately speaking: Indian tribes can’t be sued in state court without their permission. This supply is really what’s known as “sovereign immunity.” Us constitutional legislation teaches that federal and state governments is not sued in court absent their consent, a doctrine that predates the forming of the Constitution. Certainly, Alexander Hamilton’s Federalist Paper No. 81 lay out this concept in 1788.

Counsel for the Lewis couple most most likely knew tribes benefit from the exact same resistance and thought we would sue the limo motorist rather associated with the tribe, the motorist’s manager during the time of the collision.

Accidental injury lawyers have a tendency to seek out deep pockets that may spend a million buck judgment, so a suit against a limo motorist does not look like a fantastic strategy in the event that objective is just a big payout. It seems the Lewises’ attorney thinks the tribe will step up to produce good a judgment against its worker.

That lawyer may be appropriate. For company reasons, in the event that Mohegan tribe would like to retain employees that are good it might be obligated to spend money damages granted by a us state court, as one tribe argued in a youthful instance. In case a tribe doesn’t provide appropriate defenses to an employee, much the way in which other organizations would, it could have effect that is chilling exposing workers to undue danger.

The Mohegan Sun is just one of the two biggest tribal-owned gambling enterprises in the usa. AP Photo/Jessica Hill

Fair to who?

You would be lured to think it is an instance about fairness, about guaranteeing a forum for non-Indians to sue employees that are tribal may be cloaked in a tribe’s resistance through the suit. For me, fairness to your Lewis few, nevertheless, comes at the cost of fairness towards the tribe.

Recall that the tribe does supply a forum to eliminate injury that is personal against it in tribal court, however with a single 12 months limits period. The Mohegan tribal court has confirmed awards against tribal police officers; indeed, the tribe likely has settled thousands of claims over the years under that law.


I’ve very very very long argued that Indian tribes should offer a forum that is adequate deal with the negligent actions of the workers. The Mohegan tribe has been doing tright herefore here by developing a appropriate procedure for resolving accidental injury claims. In reality, Mohegan ended up being one of many earliest tribes to start doing this, into the past within the 1990s. But injury that is personal have actually reported about Mohegan legislation as it bars punitive damages along with other doctrines that will balloon judgment prizes.

A logical attorney might conclude that the higher bet is always to sue in state court and a cure for a larger judgment. Lawyers call this forum-shopping, a strategy that is disfavored most agree must be “exorcised.” Or this can be an instance in which the Lewis few (or their lawyer, in a case that is easy of) just waited a long time to create their suit, and generally are attempting to resurrect their belated claim in state court.

Many courts would look out of these techniques and dismiss the problem. In the event that worker struggled to obtain their state of Connecticut, or even for the usa, courts most definitely will have dismissed the problem, as state and authorities employees aren’t at the mercy of this type of suit.

National employees enjoy formal resistance, which protects them from individual obligation with regards to their actions, provided that these are typically acting in the range of these work. These workers can only just be sued inside their “official capacity” as employees – they are protected by unique state and federal statutes founded to evaluate the obligation of this government. The Mohegan tribe has been doing precisely the ditto regarding its workers, but under tribal legislation.

It seems the Lewis couple desires to steer clear of the procedure established by the Mohegan tribe by suing the driver that is limo his “individual capacity,” rather than their “official capability.” While state and federal resistance cannot be therefore effortlessly circumvented, Indian law is evidently more easily bypassed.

In Supreme Court instances, verdicts have a tendency to opposed to tribal passions. Bill Clark/CQ Roll Call via AP Images

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