It is quite evident that most people do not know what Tribal Sovereign Immunity is. Actually, they don’t have any reason to know the ramifications of this legal defense. Unless you have a reason to be involved in litigation with an Indian* tribe, there would be no reason to know how it might affect you. (*Note that Native Americans are referred to as Indians in legal reference to Tribal Sovereign Immunity.) Our law firm had to deal with this immunity defense involved in litigation in Alabama and other parts of the United States. As a result, we have become very familiar with this matter and have seen how Indian tribes use it to avoid personal and corporate responsibility.
Tribal sovereign immunity is defined as: Indian tribes are domestic dependent nations that exercise inherent sovereign authority. The United States Constitution gives the U.S. Congress the power to allow the Indians to legislate themselves. The core aspect of sovereignty is that tribes possess the common-law immunity from lawsuits enjoyed by other sovereign powers.
In 1934, the U.S. Congress passed the Indian Reorganization Act. At that time, about 160 tribes were adopted by the Act. The Act restored to the Indians the management and control of their assets and the right to self-govern themselves and decease federal control over Indian affairs. Because this Act made each tribe a Nation unto itself, thus each tribe was entitled to the legal doctrine known as tribal sovereign immunity.
Over the next 40 years, the Indian tribes became more involved in commercial enterprises, more Indian groups sought tribe status. Currently 567 have tribe status. In May 1975, The Band of Poarch Creek Indians signified its intent to apply for recognition as a tribe and conveyed a tract of land in Escambia County, Alabama, in trust to the Department of Interior. This was a requirement to obtain tribe status.
The Department of Interior in 1984 granted the Poarch Band of Creek Indians recognition as a tribe. In 1985, a year after achieving federal recognition, the Indians opened their first casino in Escambia County, Alabama.
As early as the 1990s, legal challenges to tribal sovereign immunity began to make their way to the United States Supreme Court. In a 1999 case, Kiowa Tribe of Oklahoma v Mfg. Technologies, Inc., Justice Kennedy, writing for the majority stated the following:
There are reasons to doubt the wisdom of perpetuating the doctrine. At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States. In our interdependent and mobile society, however, tribal immunity extends beyond what is needed to safeguard tribal self-governance. This is evident when tribes take part in the Nation’s commerce. Tribal enterprises now include ski resorts, gambling, and sales of cigarettes to non-Indians. (citations omitted). In this economic context, immunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims.
These considerations might suggest a need to abrogate tribal immunity, at least as an overarching rule. There had been several challenges over the years, both at the State and Federal level attempting to change or make an exception to the legal doctrine of Tribal Sovereign Immunity.
In 2016, The United States Supreme Court agreed to hear an appeal from the Supreme Court of Connecticut. This case involved a claim by Brian and Michelle Lewis. The Lewises were driving on I-95 in Norwalk, Connecticut, when a limousine driven by William Clarke, an employee of Mohegan Sun Casino, struck the Lewises’ car in the rear while transporting patrons to the Casino.
The Lewises sued Mr. Clarke, but not the tribe in Connecticut State Court for state claims. Mr. Clarke moved to dismiss the Lewis’ lawsuit under the doctrine of Tribal Sovereign Immunity. The trial court denied Clarke’s Motion to Dismiss. Clarke appealed to the State Supreme Court of Connecticut, which reversed the trial court, holding that Clarke was afforded Tribal Sovereign Immunity since he was an employee of the tribe and conducting tribal business and the Lewises could not circumvent tribal immunity by merely naming Mr. Clarke as a Defendant.
On April 27, 2017, the United States Supreme Court issued its opinion in Lewis v Clarke. In a unanimous opinion written by Justice Sotomayor, the Court said: The lawsuit against Mr. Clarke to recover for his personal actions, “will not require action by the sovereign or disturb the sovereign property.” The Court went further to explain that to extend Tribal Sovereign Immunity to Clarke or other tribal employees would go beyond the common law sovereign immunity principals and can be no broader than other protection offered other persons who are entitled to immunity defenses.
On Sept. 29, 2017, the Alabama Supreme Court issued two opinions dealing with Tribal Sovereign Immunity and the Poarch Creek Indian tribe. One of the cases involved a casino employee who on New Year’s Eve 2014 drank alcohol all night and into the early morning hours. She came to work the next day at 8 a.m. Shortly after arriving at work, she left in a company vehicle to perform company business. Later that morning she was involved in a head on collision with two persons and one of them was seriously injured.
A lawsuit was filed on behalf of the two injured persons against the Poarch Creek Indians, the gaming authority and its employee. The trial court dismissed all claims against the tribe and gaming authority based on the legal doctrine of Tribal Sovereign Immunity.
In a unanimous opinion, with two justices recused, written by Chief Justice Stuart, the Court held that while they recognize the doctrine of Tribal Sovereign Immunity, there are no statutes or treaties defining the limits of Tribal Sovereign Immunity and that task has been left to the United States Supreme Court in situations where tribal and non-tribal members interact.
The Court took particular notice of prior U.S. Supreme Court cases in which sovereign immunity hurts those who have “no choice in the matter” and that Tribal Sovereign Immunity still applies to “contract” cases. The Court further recognized that the U.S. Supreme Court has never recognized that Tribal Sovereign Immunity applies to tort victims or to persons who had not chosen to deal with an Indian tribe.
The Court declined to extend Tribal Sovereign Immunity in this case, since the U.S. Supreme Court has not done so. The victims in this case did not choose to interact or engage with the Defendants. They were driving lawfully on a public road when they became innocent victims with no remedy and the Court was not going to shield the tribe from the tort claims based upon the legal doctrine of tribal sovereign immunity.
The two recent decisions addressing Tribal Sovereign Immunity are steps in the right direction to fix an archaic doctrine that no longer is needed. At the very least, Congress should amend the doctrine to conform with other immunity doctrines offered governmental employees. If you need more information on this subject, contact Mike Crow, a lawyer in our firm’s Personal Injury & Products Liability Section, at 800-898-2034 or by email at Mike.Crow@beasleyallen.com. Mike has handled a number of cases involving this area of litigation.
1. The Supreme Court of Alabama opinion, Casey Wilkes and Alexander Russell v PCI Gaming Authority d/b/a Wind Creek Casino and Hotel, Wetumpka and Poarch Band of Creek Indians, Opinion No. 1151312 (released 9/29/17 and 10/3/2017)
2. Supreme Court of the United States opinion, Brian Lewis v William Clarke, Opinion No. 15-1500, (released April 25, 2017)
3. Plaintiff’s Response to Defendants Wind Creek Casino and Hotel, Wetumpka, PCI Gaming Authority, and the Poarch Band of Creek Indians’ Motion for Summary Judgment in Wilkes, et al. v. Wind Creek Casino and Hotel, Wetumpka, et al. In the Circuit Court of Elmore County, Alabama- CV-15-900057.
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