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Justices will consider whether tribal employee can be individually sued for negligence
The U.S. Supreme Court will tackle the issue of whether a limousine driver for a Mohegan Tribe casino is entitled to sovereign immunity in a negligence case stemming from an off-reservation car accident (Lewis v. Clarke, U.S., No. 15-1500, petition for review granted on Sept. 29).
Tribal sovereignty is well-established within the U.S. borders, and tribal nations are recognized by the federal government as "domestic dependent nations" with the authority to govern themselves.
That sovereignty includes immunity from lawsuits, unless the claims are otherwise authorized by Congress or immunity is waived by the tribe. Importantly, the immunity generally extends to tribal employees acting within the scope of their jobs.
In this case, the Supreme Court was asked to weigh in on whether sovereign immunity bars a claim against a tribal employee who was sued in his individual capacity, rather than as an employee working on behalf of the tribe.
Driver Sued After Crash
Limousine driver William Clarke struck another vehicle while he was driving Mohegan Sun Casino customers to their home.
Brian and Michelle Lewis were in the other vehicle and sustained injuries in the accident. They sued Clarke, claiming that his negligence caused the crash.
The accident happened in Norwalk, Conn.—which is about 70 miles away from the casino—but the parties agree that Clarke was acting within the scope of his employment at the time.
Initially, the plaintiffs also sued the Mohegan Tribal Gaming Authority, but they dropped it from the lawsuit once they realized the tribe would have immunity, explained James Nichols, an attorney with Dorsey & Whitney in Minneapolis who specializes in American Indian law.
Ultimately, the individual claims against Clarke were dismissed on sovereign immunity grounds.
"The doctrine of tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority," the Connecticut Supreme Court said.
Scope of Employment
In support of their petition to the U.S. Supreme Court, the plaintiffs pointed to a 9th U.S. Circuit Court of Appeals decision that permitted the family of a shooting victim to sue tribal paramedics in their individual capacities for allegedly delaying medical treatment (Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir. 2013)).
The 9th Circuit said that suing the paramedics individually was permissible because any monetary damages would come from their "own pockets, not the tribal treasury."
The Connecticut high court refused to follow that ruling because the plaintiffs in that case had alleged that the paramedics engaged in more egregious conduct than just negligence.
"Actions involving claims of more than negligence are often deemed to be outside the scope of employment and, therefore, not subject to sovereign immunity," the court said.
The plaintiffs in the Lewis case, however, only asserted that Clarke engaged in negligent conduct within the scope of his job. That's different from engaging in gross misconduct or intentional wrongdoing that may be outside the scope of employment, Nichols said.
If the employee had been drinking and driving or was out joy-riding, he would have been acting outside the scope of his employment, said Steve Biddle, an attorney with Littler in Phoenix.
Tribal Court Remedy Available
Clarke argued that the plaintiffs were attempting to "plead around tribal immunity" by "slapping on an 'individual capacity' label."
The plaintiffs had argued that they would be left without a remedy if they couldn't proceed with their lawsuit, but Clarke said that wasn't true. He argued that it simply required them to pursue their claims in a different forum.
Clarke noted that the Mohegan tribe has adopted Connecticut civil law to the extent that it doesn't conflict with tribal law.
"The plaintiffs were required to avail themselves of the remedies under tribal law," Nichols explained.
Biddle said that many times there is an unwarranted bias or stereotype about bringing lawsuits in tribal court. Some people feel that if they are not members of the tribe, they would be at some sort of disadvantage.
"If the plaintiffs in this case had just sued the driver in tribal court, we wouldn't have heard of this case," Biddle said. The plaintiffs likely would have received some monetary relief if the employee was found liable in tribal court.
It's possible that they either didn't know to file in the tribal court or that the deadline to file there had passed, he noted.
In June, the U.S. Supreme Court deadlocked on a challenge to tribe court jurisdiction (Dollar General Corp. v. Mississippi Band of Choctaw Indians, No. 13-1496). The 4-4 vote left intact a 5th Circuit decision that a tribal court had jurisdiction over a teenage tribe member's sexual molestation claim against the manager of a retail store on tribal land.
The Supreme Court has yet to fill its ninth seat after Justice Antonin Scalia's death, which leaves the potential for another deadlock.
It's quite possible that the court will continue with only eight justices as the Lewis case proceeds, Nichols said.
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