Matthew Fletcher: Supreme Court case poses new risks to tribes

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

In Lewis v. Clarke, 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.

As a scholar, I have 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 the outcome of the case is important because it could set a precedent that would weaken tribes’ capacity to govern.

The background

In late 2011, a Mohegan Sun Casino limousine driver rear-ended 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 period is one year, not two. For reasons not clear in the public record, the Lewis couple did not bring a suit until two years after the incident, in 2013. Since it was too late to sue in tribal court, they brought the suit to Connecticut courts.

And here’s the rub, legally speaking: Indian tribes cannot be sued in state court without their consent. This provision is what’s known as “sovereign immunity.” American constitutional law teaches that federal and state governments cannot be sued in court absent their consent, a doctrine that predates the formation of the Constitution. Indeed, Alexander Hamilton’s Federalist Paper No. 81 set out this theory in 1788.

Counsel for the Lewis couple likely knew tribes enjoy 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 lawyers tend to search for deep pockets that can pay a million dollar judgment, so a suit against a limo driver doesn’t seem like a winning strategy if the goal is a large payout. It appears the Lewises’ lawyer believes the tribe will step in to make good a judgment against its employee.

That attorney may be right. For business reasons, if the Mohegan tribe wants to retain good employees, it may be forced to pay money damages awarded by a state court, as one tribe argued in an earlier case. If a tribe doesn’t offer legal protections to an employee, much the way other businesses would, it could have a chilling effect by exposing employees to undue risk.

Fair to whom?

One would be tempted to think this is a case about fairness, about guaranteeing a forum for non-Indians to sue tribal employees who might be cloaked in a tribe’s immunity from the suit. In my opinion, fairness to the Lewis couple, however, comes at the expense of fairness to the tribe.

Recall that the tribe does provide a forum to resolve personal injury claims against it in tribal court, but with a one year limitations period. Under that law, the Mohegan tribal court has confirmed awards against tribal police officers; indeed, the tribe likely has settled thousands of claims over the years.

I have long argued that Indian tribes should provide an adequate forum to address the negligent actions of their employees. The Mohegan tribe has done so here by establishing a tribal court and a legal process for resolving personal injury claims. In fact, Mohegan was one of the earliest tribes to start doing so, way back in the 1990s. But personal injury lawyers have complained about Mohegan law because it bars punitive damages and other doctrines that can balloon judgment awards.

A rational lawyer might conclude that the better bet is to sue in state court and hope for a larger judgment. Lawyers call this forum-shopping, a disfavored strategy that most agree should be “exorcised.” Or this may be a case where the Lewis couple (or their attorney, in an easy case of malpractice) simply waited too long to bring their suit, 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 worked for the state of Connecticut, or for the United States, courts most certainly would have dismissed the complaint, as state and federal government employees are not subject to this kind of suit.

Government employees enjoy official immunity, which protects them from personal liability for their actions, so long as they are acting within the scope of their employment. These employees can only be sued in their “official capacity” as employees – they are protected by special state and federal statutes established to assess the liability of the government. The Mohegan tribe has done exactly the same thing regarding its employees, but under tribal law.

It appears the Lewis couple wants to avoid the process established by the Mohegan tribe by suing the limo driver in his “individual capacity,” rather than his “official capacity.” While state and federal immunity cannot be so easily circumvented, Indian law is apparently more readily bypassed.

Supreme Court bias against 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 split on whether injured parties can avoid tribal law and tribal immunity by suing tribal employees in their individual capacities. When there is a split in authority on an important issue, the Supreme Court steps in to resolve the split.

Tellingly, there is very similar petition involving the Tunica-Biloxi tribe of Louisiana that was teed up for review at the same time as 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 has an eye toward ruling 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 a chance to correct the perceived error in the lower courts and leaving the other decision alone.

The history of the court’s treatment of tribal interests going back decades – tribes have a worse winning percentage than convicted criminals – all but confirms the way the court is leaning here. The court usually tends to hear cases with an eye toward reversal – such as the Mohegan case – and not cases it agrees with – such as the Tunica-Biloxi case. My research shows that the Supreme Court dramatically disfavors tribal interests in virtually all cases. In fact, the Supreme Court agrees to hear about one percent of tribal appeals, but agrees to hear about one-third of appeals from those opposing the tribes.

In Lewis, if the Supreme Court finds that tribal employees can be sued in state court, then any time a tribal employee leaves the reservation, they can be subject to lawsuits outside of tribal courts. One potential big problem may arise when tribal police and ambulance drivers respond to 911 calls off the reservation through intergovernmental cooperative agreements. Tribes might be forced to reconsider those agreements if their costs rise, and people on or near reservation lands will be less safe. Additionally, tribes might be less able to send social workers, probation officers and other employees to provide services to tribal members off-reservation if liability (and insurance) costs rise too much. Tribes might reconsider off-reservation business activities, too, which is a boon to local economies.

In my view, Lewis v. Clarke isn’t a case designed to guarantee fairness to personal injury victims. Remember, this is the Roberts court, which observers allege has a significant pro-business bias. Apparently, tribal businesses don’t count.

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

Matthew L.M. Fletcher, a member of the Grand Traverse Band of Ottawa and Chippewa Indians, serves as Professor of Law & Director of the Indigenous Law & Policy Center, Michigan State University. He also works for eight Indian tribes as an appellate judge: Grand Traverse Band of Ottawa and Chippewa Indians, Hoopa Valley Tribe, Mashpee Wampanoag Tribe, Nottawaseppi Huron Band of the 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.

Note: This article was originally published on The Conversation and is reposted here under a Creative Commons license. Read the original article.