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Connecticut suit could affect tribal compacts

Copyright © 2017 Albuquerque Journal

A couple injured after being rear-ended by a tribal casino limo driver 70 miles from the Mohegan Sun casino in Connecticut – and off the reservation – would like to sue him.

Seems simple, but the case has landed in the U.S. Supreme Court with the parties wrangling over just how far Native American tribes’ immunity from lawsuits should extend.

The Mohegans say the case is a simple money grab and worry it could open a floodgate of lawsuits and diminish tribal power – a closely watched issue here in New Mexico.

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The couple’s lawyer, Eric Miller, sums up the case differently in written arguments: “A tribal employee transporting gamblers to and from a casino should not be treated as somehow akin to a foreign ambassador.”

The case has caught the attention of New Mexico Attorney General Hector Balderas, who, along with attorneys general from four other states, and lead attorneys from the Navajo Nation and other New Mexico tribes, has joined the National Congress of American Indians in the group’s amicus brief to the Supreme Court. They all side with the Mohegan tribe.

They are at odds with the Obama administration’s Justice Department, which sided with the couple and said the tribe wants sovereign immunity protection that is even greater than the federal government has.

Tribes, which are basically independent nations, can’t be sued unless they agree to be sued. That’s called sovereign immunity. States, the federal government, other countries – along with tribes – have it.

This lawsuit, though, targets only the employee himself for a crash that happened off the reservation while he was working for a private company that provided limo services for the tribe under a contract.

The limo driver, who is not a tribal member, says the tribe’s sovereign immunity extends to him, so he can’t be sued. That, he says, is because he was doing his tribal job at the time of the crash, and because the tribe’s insurance covers him so the tribe would pay any damages awarded.

The basic question comes down to this: Can a plaintiff sidestep a tribe’s sovereign immunity protection by suing an individual worker doing a job off the reservation?

If not, then plaintiffs like the Connecticut couple would be left with fewer methods of recourse for life-changing incidents caused by tribal employees off the reservation, a ruling that could extend to New Mexico.

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As a practical matter, the Connecticut couple would have to sue in Mohegan tribal court, which doesn’t provide for jury trials or allow punitive damages.

Sovereign immunity

Sovereign immunity is complicated.

UNM law professor Kevin Washburn

UNM law professor Kevin Washburn

Kevin Washburn, a University of New Mexico law professor and the former assistant secretary for Indian Affairs at the U.S. Department of the Interior, explains it like this:

“States have it, the federal (and foreign) government has it, and tribes have it. It comes from the king, comes from England long ago, that the king can do no wrong.

“But it confuses people, because how could it be that with a government by the people, for the people, how could the people not sue it? Now most governments have waived it in some ways for limited purposes.”

And in this case, the Mohegan tribal government agreed to be sued, but only in its tribal gambling court.

Instead, the couple sued the individual driver – not the tribe – in a state court.

Main sides in case

The tribe’s attorney says the couple sued in state court, rather than tribal court, to try to get more money from the tribe. And the couple sued the employee himself to try to avoid triggering the tribe’s sovereign immunity.

But since the tribe’s insurance covers the driver, William Clarke, and since he was doing a tribal job when the accident occurred, the tribe is on the hook – and the tribe contends that triggers immunity wherever the lawsuit is filed.

“They might say they want to sue Clarke, but in practical effect they’re not suing Clarke,” tribal attorney Neal Katyal argued before the Supreme Court in oral arguments in January.

The couple’s attorney, though, says just because the tribe has voluntarily agreed to pay for an employee’s lawsuits doesn’t extend the blanket immunity. If it did, that would create more protection for tribal employees than state, federal or foreign nations’ employees have when they are sued.

In siding with the Connecticut couple, the federal government argues that even in lawsuits against state or federal employees “such suits seeking to recover damages from the officer or employee personally are not considered suits against the sovereign, even though they arise out of the agent’s work for the sovereign, and they therefore are not barred by sovereign immunity.”

New Mexico Attorney General Hector Balderas

N.M. Attorney General Hector Balderas

Tribes from New Mexico and Attorney General Balderas disagree, and they side with the Mohegan tribe.

The pueblos of Cochiti, San Ildefonso, Jemez, Taos and Laguna argue in their amicus brief that individual lawsuits against tribal employees could change how tribal employees behave – even law enforcement and officials.

“Forcing these public servants to face suit, and potentially devastating personal liability, in foreign courts creates disincentives to provide these vital services.

“Moreover, subjecting tribal employees to a maze of state and local court jurisdiction would be flatly contrary to Congress’s consistent and oft-repeated policy of tribal self-government and self-determination.”

For Balderas and his staff, though, the lawsuit is less about the tribe’s sovereign immunity and more about who should manage a tribe’s relationships: a federal government rule or negotiations between states and tribes.

“It’s not about how any given lawsuit should come out; it is about New Mexico tribal and state government working together and local governments working together and not a rule coming out of Washington, D.C.,” said Kenneth Stalter, general counsel for the AG’s Office. “What we’re afraid of is for the U.S. Supreme Court to lock in a rule across the country to limit our ability to continue” to negotiate and have relationships with the tribes in New Mexico.

New Mexico tribes

But for some tribes in New Mexico, the federal rule would be preferable to the state’s current stance on lawsuits against tribes. In New Mexico, tribes are regularly sued in state courts.

Unlike in Connecticut and other states, under negotiated agreements, lawsuits related to gambling operations against New Mexico tribes or tribal employees can be brought in state courts, where payouts are higher than in tribal courts. Policy on lawsuits is even in the language of the state’s gambling contracts, in a way.

Some tribes with gambling in New Mexico don’t like this arrangement and would prefer to handle lawsuits in tribal courts.

So why is New Mexico like this?

Many tribes waive some of their sovereign immunity as part of the agreements they make with states in order to get state permission to operate casino gambling. These agreements are usually called gambling compacts.

And each state with gambling tribes has different types of agreements.

In the Connecticut compact with the Mohegan tribe, the tribe agreed to allow lawsuits in its tribal courts but it did not agree to be sued in state courts. Their tribal court, though, offers no jury trials and no punitive damage payouts, and limits other payouts.

New Mexico’s current gambling compact has a specific phrase that allows gambling-related lawsuits to be heard in any “court of competent jurisdiction.”

State courts have interpreted this phrase to mean them – a leap some tribes object to.

“What court that is, remains to be determined. Our argument is that the state couldn’t just agree to transfer jurisdiction because that was precluded by federal law,” said Indian law expert and attorney Richard Hughes.

Hughes has for decades helped draft the state’s gambling compacts, and he represents the Pueblo of Santa Ana. The pueblo has filed an amicus brief in a case currently pending before the 10th District Court of Appeals in Denver brought by the Navajo Nation over the interpretation of the language that has led to lawsuits against tribes in New Mexico state court.

That state’s original gambling compact created by the Legislature in 1997 – a contract that was not actively negotiated with the tribes – allowed gambling lawsuits against tribes in state courts.

Tribes fought against this, and in subsequent compacts won inclusion of the language that allows suits in a “court of competent jurisdiction.” State courts still consider this to include them.

Hughes said the state’s interpretation has kept lawsuits out of tribal courts though many of the suits in state courts are dismissed over tribal sovereign immunity issues.

“I’ve never heard of, at least in New Mexico, I’ve never heard of a tort case (lawsuit) arising at a gambling establishment arising at a tribal court,” Hughes said.

“There’s just a knee-jerk assumption, which is not entirely unjustified, that they’re (plaintiffs) not going to get a fair hearing in tribal court. But it’s not fair to say that tribal courts will never give a non-Indian a fair hearing, and it’s also not true to say a state court will not give an Indian a fair hearing.”

A ruling in the Connecticut case in favor of the Mohegan tribe could affect this issue in New Mexico and could force a reinterpretation or even a replacement of the compact language.

“The Supreme Court has literally been wrestling with the doctrine of tribal sovereign immunity for years, and it’s very possible that this case might provide an occasion to start imposing some limitations on the doctrine,” Hughes said. “A lot of factors are at play here that could give rise to a decision that, for the first time, the court might find ways to get around the immunity defense.”

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