WASHINGTON (CN) – A car crash in Connecticut involving a casino employee is forcing the U.S. Supreme Court to decide just how far Native American tribal immunity can go.
On Monday, attorney Eric D. Miller argued on behalf of petitioners Brian and Michelle Lewis, who sought damages for a 2011 car crash they were in with William Clarke, a limo driver for Mohegan Sun Casino.
While driving on I-95, Clarke ran into the back of the Lewises’ car, sending them into a concrete barrier near Norwalk, Conn.
What makes the case particularly contentious is who the driver worked for. Mohegan Sun Casino is tribally owned and, as such, has protections under tribal sovereign immunity.
Generally, sovereign immunity shields tribes and foreign governments from lawsuits until that entity waives immunity for itself. This rule also applies to employees carrying out official business, which Clarke claims was precisely what he was doing on the day of the crash.
Typically, collision complaints against a commercial driver include the driver's employer. When the Lewises initially brought their claim against Clarke, they also named the casino as a defendant. They eventually dropped Mohegan Sun from the suit, hoping to discard any immunity entanglements.
But that didn't seem to matter. Though a trial judge in a lower Connecticut court initially sided with the Lewises, the state's high court reversed last year and found that Clarke was indemnified and protected by the tribe.
The Lewises opposed the ruling and urged the Supreme Court to hold Clarke responsible in his individual capacity since he is not a member of the tribe himself and is merely employed by a tribal entity. The nation’s high court agreed in September to take up the case.
Miller acknowledged Monday that the case was a "particularly bad vehicle...to consider the question of official immunity."
"Allowing indemnification to create sovereign immunity here…would have the very strange consequence [of] allowing the tribe to come in and say well…the action against the employee is really against us. We're going to have to pay, therefore, immunity applies but now that immunity applies, we don't have to pay…that allows the liability to simply disappear," he said.
Justice Stephen Breyer treaded carefully as he considered the implications of Miller's statement.
"We see every state and the federal government [doesn't] let you bring a suit against an employee and make that employee pay for an automobile accident. Rather they offer some other remedy," Breyer explained.
Breyer then referenced stipulations laid out in the Westfall Act, which allows the U.S. government to step in as defendant in any action where one of its employees has been sued for civil damages.
"You go against the state, for example, under the Westfall Act, you go against the federal government, and so by analogy, where the tribe is in fact going to pay and also offers a remedy, then, by analogy, that latter part being important…the federal common law should be shaped to reflect that," he said.
Breyer quickly acknowledged that this was the thought Clarke's attorney, Neal K. Katyal, was "trying to put in [his] head."
Miller defended his position, saying that while not every state bars action against individual workers caught up in similar liability claims, there are a number of states that allow for it.
"And then they indemnify the employee, but you can sue the employee in his own name," Miller said. "The more fundamental problem with [Clarke's argument] is that the tribe may choose to provide a remedy in its court, but this is a traffic accident on a public highway."
Katyal repeatedly moved his argument to the "real party of interest," the tribe.
"There was a statute of the tribe that said, we're responsible for all the costs, all the judgment and so on," he said.
But Breyer immediately pushed back against Katyal's assertion, appearing to lean in favor of Miller's argument.
"So how do we deal with this? Every tribe passes this. You say great. Indemnify everybody. You'll never have to pay because as soon as you do that, nobody can sue you," he said.
Leaning forward, resting his head on his hand, Breyer went on to liken the threat of tribally protected individuals driving on roads outside of reservations as rogue ballistics.
"And so, therefore the tribe is totally immune from most ordinary accidents taking place off the reservation and the victim of now these missiles being sent out from the reservation because they run over people and there's no remedy at all," he countered.
The justice found this scenario unsuitable, saying it makes the power of tribal immunity too great.
"That seems to me pushing the notion of immunity off the reservation into a place where there are just no remedies for the victim at all. Now, what is the answer to that?" Breyer asked.
Katyal offered precedents found in a split Supreme Court decision which upheld a ruling in a Sixth Circuit case, Michigan v. Bay Mills Indian Community. In that case, the Sixth Circuit ruled that tribal immunity banned a suit against a tribe to enjoin the construction of a casino outside Indian lands.
According to Katyal, that ruling determined that tribal immunity is different and that it does extend to commercial, off-reservation activity.
The concern for Clarke is that any ruling for the Lewises could chill the services that tribes currently provide to members or people working on the tribe's behalf.
"I think the question for this Court in answering federal common law is…What is Congress's judgment in this area? And if they can identify some distinction between a tribal driver and a federal driver or something like that, absolutely…that's fair game," Katyal said.
It is unclear when the Supreme Court will hand down a decision in the case.
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