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Sovereign immunity. Most personal injury lawyers shudder at the phrase! We occasionally deal with this issue in our personal injury cases. When we do, we are usually explaining to callers the difficulty or impossibility of suing the state for damages.

How about a slightly different issue — tribal sovereign immunity. Native American tribes are not independent political entities. They are not states, like Alabama. They have often been called “domestic dependent nations” and are subject to control by the U.S. Congress. Tribes retain some historic sovereign authority unless Congress acts. If you find the relationship confusing, you would not be the only one.

A current case now pending before the U.S. Supreme Court presents an interesting issue of tribal sovereign immunity. It involves a car accident and the Poarch Creek tribe in Alabama. The Alabama Supreme Court framed its decision like this:  The doctrine of tribal sovereign immunity affords no protection to tribes with regard to tort claims asserted against them by non-tribe members.

What happened? The claim itself involved a car collision with serious personal injuries in south Alabama. But, the backstory is pretty interesting. The defendant driver (the one who caused the wreck) had a bad history with alcohol. She had been working for the Poarch Creek tribe for a couple years prior to the accident. As many people know, the tribe operates a casino and hotel in Alabama. During her employment, co-workers reported her to upper management at least six times for smelling like alcohol on the job. At one time during her employment, a blood alcohol test exceeded the legal limit. At another time, she attended alcohol counseling. What happens next should not surprise anyone.

The defendant driver arrived at work on January 1 “after drinking much of the night.” At some point that day, she took a tribal truck and drove to a warehouse. Yes, she had been authorized to use tribal vehicles for work despite her history. After leaving the warehouse, she struck a guardrail, crossed into oncoming traffic and slammed head-on into another vehicle. The collision occurred on an Alabama roadway, not a tribal reservation. A blood test at the hospital (almost 2 hours after the collision) revealed a blood-alcohol content of .293 (far, far over the legal limit).

If any other employer had allowed an employee to continue using its vehicles after multiple reports of intoxication, liability would not be a question. Indeed, we would be discussing punitive damages! Here the employer was a casino and hotel owned by the tribe. Can an employer which is a native American tribe be held responsible for such egregious conduct? I’ve previously questioned sovereign immunity issues for tort claims in other contexts.

What about immunity for tort claims against native American tribes? The Alabama Supreme Court’s decision provides some historical background to the relationship and sovereignty of native American tribes. In holding the tribe was not immune, the Alabama Supreme Court first recognized that Federal law determined the issue. The Court distinguished several Federal cases which provided tribal immunity for claims stemming from a tribe’s commercial contract activities. The Alabama Supreme Court then held “the doctrine of tribal sovereign immunity affords no protection to tribes with regard to tort claims asserted against them by non-tribe members.”

As I indicated earlier in this post, the case is now pending before the U.S. Supreme Court. Will the U.S. Supreme Court allow the tort claim to proceed? It’s questionable. Tribal immunity is a judicial concept that has developed over many years. It’s been applied broadly in many cases, leaving people without justice or compensation for serious injuries. And, the Alabama Supreme Court had to distinguish several Federal Court decisions to reach its holding. You can read more about this case and the issue of tribal immunity in an article authored by Josh Moon in 2016 before the Alabama Supreme Court decision.

I’ll be watching for the U.S. Supreme Court decision on this issue. If you want to follow the case, you can go to the SCOTUSblog which has a page for the proceedings. People hurt in car and truck accidents should have access to the courts. Our justice system should hold careless drivers and decision-makers responsible for the injuries and damages they cause on our roadways.

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At the Blackwell Law Firm, we specialize in personal injury cases. These include cases involving serious personal injuries from intoxicated, impaired or distracted drivers. We believe in advocating to improve safety on the Alabama highways we all share.