Is the employee of a tribe who causes personal injury while driving a limousine for the tribe covered by the tribal government’s sovereign immunity from lawsuit?
The U.S. Supreme Court has decided to take up a case that will likely determine that question. The case the high court has agreed to hear is Lewis v. Clark, which justices first heard arguments for on January 9.
In 2011 William Clarke, a non-tribal member of the Mohegan tribe working for the Mohegan Tribal Gaming Authority as a limo driver, was involved in an accident with Brian and Michelle Lewis 70 miles from the reservation. The Lewises first sued Clarke and the tribe, but dropped the tribe when they learned of the tribe’s sovereign immunity.
The Connecticut Supreme Court dismissed the case, ruling that tribal immunity extended to an employee performing his job, much as it would if the employee worked for a state or the federal government.
The Lewises’ appeals have taken the case to the Supreme Court. Their brief argues that they were “…seeking relief from the employee personally…since The judgment is not enforceable against the Mohegan government.”
Their attorney, Seattle-based Eric D. Miller argues “What the respondent is asking for here is a sort of immunity, a sort of ability to control how the litigation proceeds that is unlike what any other state would enjoy…. That position represents an extraordinary and unwarranted expansion of tribal immunity.”
The U.S. Attorney who supporting the tribe as a friend of the court in this case, Ann O’Connell, declared, “The Petitioners’ suit is a personal-capacity suit against an individual tribal employee, and the tribe’s sovereign immunity is therefore not implicated.”
She maintains that the Connecticut Supreme Court complicated matters when it ruled that sovereign immunity extended to any of the tribe’s employees when carrying out activities for the tribe. She argues that the suit is a “personal capacity suit, not an official capacity suit,” and so tribal sovereign immunity doesn’t apply.
O’Connell advises that the Supreme Court should “decide the tribal sovereign immunity question and remand to the Connecticut Supreme Court, which could address official immunity….”
Clarke’s attorney, Neal K. Katyal, disagrees. He writes, “If Clarke were a federal employee, a foreign employee, or a Connecticut State one, this suit would be barred. There’s no reason the rule should be different for tribes.”
The Connecticut Trial Lawyers Association and American Association for Justice have filed friend the court briefs in support of the plaintiffs. They argue that “all individuals whose person or property has been injured should be able to seek a just remedy in our nation’s courtroom” and imply that tribal courts don’t handle such cases fairly when they involve tribes.
Although legal experts consider the Mohegan tribal court system among the most respected in the country, the point the U.S. Supreme Court could consider is whether all tribal courts are equally respected, and so, if the plaintiffs had not had access to the Mohegan tribal court, would they have had access to a legal remedy against Clarke?
Several tribe haves filed friend of the court briefs supporting the tribe, claiming that a judgment for the plaintiff would disrupt intergovernmental agreements and tribal laws and possibly disrupt “…tribes’ working relationships with their sister governments and commitments to individual state and tribal citizens. . .”
Timothy Q. Purdon, an attorney who co-chairs the American Indian Law and Policy Group and is an active member of the Native Americans Rights Fund’s Tribal Supreme Court Project, wrote to the high court: “If immunity is defeated here, this employee and this tribe will be treated differently than any other government employee would be treated in that situation. A finding of no immunity in this situation is inconsistent with the way government-to-government relationships work.”
