The question of how far the concept of tribal immunity from lawsuit extends will get a review by the U.S. Supreme Court when it takes up Lewis v. Clarke, a case where the employee of a tribe is being sued for damages after the employee caused injury in a car accident away from tribal land.
The case involves a limousine driver for the Mohegan Sun, who, in 2011, while performing his duties, rear-ended Brian and Michelle Lewis’s car on I-95 near Norwalk, Connecticut.
The plaintiffs did not sue the tribe, which they could have done in the Mohegan tribal court, because, for whatever reason, they missed the one-year statute of limitations. So they resorted to a state court, where the statute is two years. Instead of suing the tribe, they sued the driver, knowing that the tribe’s sovereign immunity protected it.
The case has reached the high court, which will delve into the unsettled law of whether an employee of a tribe can be held liable while performing his employee’s duties, but off of tribal land.
As Matthew L.M. Fletcher, a legal scholar at Michigan State University, explains, the issue of law is narrow, but could have unexpected repercussions. “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,” he wrote last week in the Conversation. “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.”
Fletcher argues that if the tribe loses the case it will harm the ability of tribes everywhere to attract employees to jobs that might have risks of injury of liability. He writes, “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.”
Although it might seem unfair to the injured couple to prevent them from suing the employee, Fletcher argues that the tribe provides a place where they could have had their complaint addressed—if they had chosen to use it. He notes that if the limousine driver had been an employee of Connecticut or the United States, that the courts would have dismissed the complaint. He adds, “By agreeing to hear the Lewis couple’s petition, the Supreme Court may have shown its bias against Indian tribes.” In Lewis’s opinion the Supreme Court has a fairly consistent record of giving tribe’s the bad end of the stick.
He writes, “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.” He concludes, “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.”
