The United States Supreme Court recently decided the rear-end vehicle collision case of
Lewis v. Clarke
581 US ___ (2017),
U.S. LEXIS 2796, No. 15-1500. The plaintiffs, Brian and Michelle Lewis, who lived in Connecticut, were
driving on an interstate highway outside the boundaries of the Mohegan
Reservation when they were rear-ended by a Mohegan Sun Casino transport
van driven by the defendant, William Clarke, who was also a citizen of
Connecticut. Clarke was employed by the Mohegan Tribe to drive customers
to the tribe’s casino.
The Lewises sued Clarke in Connecticut state court for damages resulting
from the accident. Clarke moved to dismiss the lawsuit, arguing that he
was cloaked in the tribe’s sovereign immunity because he was acting
as a tribal employee or, in the alternative, because the tribe had agreed
to indemnify him for any damages arising from his official acts in furtherance
of the tribe’s interests. The Connecticut trial court denied the
defendant’s motion to dismiss the suit because plaintiffs claim
for money damages did not “affect the Tribe’s ability to govern
itself independently.” The Supreme Court of Connecticut reversed,
holding that permitting a plaintiff to overcome tribal immunity simply
by styling his complaint as against the defendant in an individual capacity
would render tribal immunity a nullity.
On April 25, 2017, a unanimous (8-0) U.S. Supreme Court reversed to allow
the plaintiffs lawsuit to continue, in an opinion written by Justice Sonia
Sotomayor. The court held: (1) In a suit brought against a tribal employee
in his individual capacity, the employee, not the tribe, is the real party
in interest and the tribe's sovereign immunity is not implicated;
and (2) an indemnification provision cannot, as a matter of law, extend
sovereign immunity to individual employees who would otherwise not be
protected. The court concluded that there is a readily discernible difference
between suits in an individual capacity and those in an official capacity,
only the latter of which are subject to sovereign immunity. Comparing
to other actions, like a
Bivens action or a Section 1983 suit under federal law, the court reasoned that
a bright line can be drawn between suits against officials acting in their
official capacities or acting just as private individuals. For instance,
the court noted that in the former case, if the official being sued were
replaced, perhaps because of a change in administration, the suit would
proceed against the new office-holder, while in the latter case, the defendant
would remain the same. The court also concluded that “[t]he Tribe’s
indemnification provision does not somehow convert the suit against Clarke
into a suit against the sovereign.”
The court’s opinion instructs: “This is a negligence action arising from a tort committed by Clarke on
an interstate highway within the State of Connecticut. The suit is brought
against a tribal employee operating a vehicle within the scope of his
employment but on state lands, and the judgment will not operate against
the Tribe. This is not a suit against Clarke in his official capacity.”
In reaching this decision, the Supreme Court was essentially putting a
limit upon the federal law of tribal sovereign immunity. It has been argued
that this decision stands for the proposition that tribal immunity is
no greater than state immunity. Whether this is appropriate is subject
to some dispute.
Limits upon tribal sovereign immunity have been sought through much litigation.
However, federal law recognizes Indian tribes as “domestic dependent
nations” that exercise inherent sovereign authority.
Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla., (1991) 498 U.S. 505, 509. “Dependent” means that tribes are
subject to control by Congress but otherwise retain their sovereign immunity,
including immunity from suit.
Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58. Thus, tribes cannot be sued in state or federal
court except as authorized by Congress or unless the tribe waives its
American Property Management Corp. v. Superior Court (2012) 206 Cal. App. 4th 491, 499-500. This immunity even extends to off reservation commercial
activity. Kiowa Tribe of Okla. V. Manufacturing Technologies, Inc. (1998)
523 U.S. 751, 756.
Under the landmark ruling in
Montana v. United States, tribal jurisdiction does not extend “beyond what is necessary to
protect tribal self-government.” In
Lewis v. Clarke, the U. S. Supreme Court, found that nothing in this case implicated the
ability of the tribe to govern itself.
Justice Clarence Thomas and Justice Ruth Bader Ginsburg concurred separately,
although their reasoning was similar. Both wanted the case decided on
simpler grounds. Thomas on the ground that the conduct was off-reservation
and of a commercial nature, and this defeated any immunity claims, and
Ginsburg on the ground that the conduct was off-reservation and involved
a non-tribal member.
In essence, both wanted the court to revisit its 1988 decision in
Kiowa Tribe v. Manufacturing Technologies and its 2014 decision in
Michigan v. Bay Mills Indian Community (in which both Thomas and Ginsburg dissented). These cases held that tribal
immunity extends beyond reservation land, even in commercial cases.
The court declined to reconsider these precedents or the broader question
of the current efficacy of the law of tribal sovereignty. These questions
seems ripe, but it appears that the court viewed a simple rear end vehicle
collision between two non-tribal members occurring off the reservation
as a poor vehicle (pun intended) for making such a sweeping pronouncement
about tribal law sovereignty.
The decision raises lots of questions, such as: 1.) What if the collision
took place inside the tribe’s reservation? 2.) What if the driver
was a tribe member who resided on the tribe’s reservation?; 3.)
Should I ride on one of those tribe transport vehicles to Pechanga. In
this author’s opinion, a bright line should be drawn around the
Indian tribe’s reservation territory, and any acts occurring off
that reservation should be subject to state laws and suit in state courts.
In California, Indian tribes engaged in casino gambling are required by
California to provide procedures for resolving injury claims of their
casino patrons. There are no set requirements, thus there are as many
different resolution procedures as there are tribes, and there are many!
Some post their rules on their websites, some do not. Some have provided
for arbitration in the usual forums, and some require resolution by the
tribal court. If you are going to an Indian Casino, you should consider
your action the same as if you are going into Mexico. Make sure your health
insurance applies, as you may not be able to recover anything for a negligently
Russell S. Kohn, Esq. was president of the BANSDC in 2004 and is a former
BANSDC Director and Personal Injury Section Chairman. His law office is
in Oceanside, where he specializes in plaintiff personal injury law. He
can be reached at (760) 721-8182.