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 immunity. 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 caused injury!
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) 710-0190.
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