According to the National Conference of State Legislatures, there are presently 566 federally recognized tribes, in addition to a few recognized at the state level. Currently, in Colorado, there are two: The Southern Ute Indian Tribe of the Southern Ute Reservation and Ute Mountain Tribe of the Ute Mountain Reservation. Since these tribes are considered self-governing, they are similar to U.S. governmental entities in that they are afforded sovereign immunity which shields them from most litigation.
Lewis v. Clarke Accident Case
William Clarke, a driver for the Mohegan Sun Casino, was transporting customers by limousine along a Connecticut highway when he rear-ended Brian and Michelle Lewis, the plaintiffs. The casino is owned by the Mohegan Tribe of Connecticut. The Lewis' sustained some injuries and brought a negligence suit against Clarke. Clarke sought a dismissal of the suit in CT Trial Court, citing that he was subject to the tribe's sovereign immunity when acting as a tribal employee. The court rejected his request stating that the suit was against him personally. Next, the CT Supreme Court reversed the decision by saying that permitting plaintiff's to sue defendants individually would start a pattern of overcoming tribal immunity moving forward.
The U.S. Supreme Court Rules
The U.S. Supreme Court ruled for the plaintiff in the matter with the following explanations:
- Justice Sotomayor wrote that the difference is that the suit stems from personal conduct, not litigation aimed at the sovereign tribal government. The defendant was on a CT highway, under jurisdiction of the CT courts, meaning immunity would not apply.
- Justice Ginsburg added that activities outside of the reservation are generally not covered by immunity.
- It was pointed out that if the roles were reversed; meaning that Clarke was a CT employee, that governmental immunity would not apply.
It seems highly likely that had the accident occurred upon the reservation, then the defendant may have received a more favorable outcome.
Historical Basis for Tribal Sovereign Immunity Laws
The Supreme Court has long supported the laws of tribal immunity, considering them “domestic dependent nations”, “distinct, independent self-governing”, and “undisputed possessors of their soil and deserving of their natural rights”. Most of these tribes were here long before the Europeans entered, in fact, most pre-date the formation of the United States and the beginning of statehood. Tribes are legally entitled to their sovereignty until potentially revoked by an act of Congress.
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