INTRODUCTION

Tribal tort law is an incredibly unique niche, especially in relation to personal injury and workers’ compensation claims. The laws of the State of Michigan do not apply in Indian Country. Instead, tribes have sovereign immunity unless explicitly waived, and the tribe’s own laws might vary greatly from Michigan’s. Therefore, it is critical that an attorney advising a prospective client regarding a potential personal injury or workers’ compensation claim be familiar with the applicable tribal law in order to set the correct expectations.

In my own practice, working within this field, I often have to be the bearer of bad news to prospective clients and attorneys unfamiliar with applicable tribal law. I might have to explain that with respect to their particular claim, the tribe has blanket sovereign immunity. Or I might have to advise that although Michigan has lengthy limitations periods for personal injury claims, this particular tribe does not, and the prospective client has already missed the filing deadline. Or I might have to explain that even though the tribe has an applicable law, and the filing deadline has not passed, the claim cannot succeed because a section of that particular tribe’s law precludes recovery of damages.

SOVEREIGN IMMUNITY

To reiterate what several other authors have emphasized in this issue, every federally recognized tribe enjoys sovereign immunity. This doctrine has its roots in treaties signed by the British and French with numerous Native American nations during colonial times. Later, Native American sovereign immunity was established as a principle of constitutional law across the United States in two landmark cases in 1831 and 1832, which later became known as the Cherokee Cases.¹

In Cherokee Nation, the United States Supreme Court stated that “from time immemorial, the Cherokee Nation have composed a sovereign and independent State, and in this character have been repeatedly recognized, and still stand recognized by the United States.”² One year later, in Worcester, the Court held that the Cherokee Nation “was acknowledged to be a sovereign nation, and by which the territory occupied by them was guaranteed to them by the United States; and that the laws of Georgia under which the plaintiff in error was indicted are repugnant to the treaties, and unconstitutional and void.”³ In other words, the laws of the State of Georgia could not constitutionally be enforced against Native Americans in Indian Country.

In the nearly two centuries that have passed since the United States Supreme Court ruled in the Cherokee Cases, tribal sovereign immunity has been reaffirmed time and again. One exception is through an explicit waiver of sovereign immunity from the applicable tribe, and then, only for the particular issue at hand.⁴ The implications of this doctrine for both personal injury and workers’ compensation cases are that if an injury occurs on land held by one of the state’s 12 federally recognized tribes, Michigan’s state law does not apply, unless there has been an explicit waiver of sovereign immunity that applies directly to the cause of action, allowing the application of state law.

Even where sovereign immunity has been waived, moreover, the waiver usually requires that tribal courts retain jurisdiction over the matter and that the tribe’s own law, rather than Michigan’s, applies to the claim before the court.

From my experience, attorneys tend to make mistakes with sovereign immunity in the civil tort realm in one of three scenarios. First, an attorney might not be able to find the applicable tribal law,⁵ or just ignores it altogether. Next, an attorney may ignore the tribe’s jurisdiction and attempt to file a lawsuit in state court, under state law. Finally, an attorney may correctly file a lawsuit in the appropriate tribal court but attempt to apply Michigan’s tort laws instead of the tribe’s own tort laws because the law may not exist,⁶ because the attorney may have missed a critical tribal law deadline,⁷ or simply as a result of an honest mistake.

Filing in the wrong jurisdiction is often correctable, if done quickly. Missing deadlines or trying to file a lawsuit in a tribal court that does not have an applicable law often results in an embarrassing dismissal and an angry client.

PERSONAL INJURY CASES

Easily the most common types of personal injury cases on tribal land are slip-and-fall cases. These claims often arise within a tribally owned casino or hotel. Also, these injuries often occur to people with long-term disabilities and/or to senior citizens — groups who are unlikely to experience economic loss as a result of an injury.

That fact is important because, for tribes that do have personal injury statutes, the cap on damages is frequently directly linked to economic loss. As an example, the Pokagon Band of Potawatomi Indians Tort Claims Act limits awards of damages to the plaintiff’s economic loss plus “not more than fifty percent (50%) of the Economic Loss sustained” for pain and suffering related damages.⁸ This means that even if the tribe is found liable for the claimant’s injury, the claimant would not be able to recover damages if no economic loss resulted from the injury. The result is that some people who suffer serious injuries on tribal land, like retirees and those on long-term disability, will not be able to recover damages even if they win a lawsuit against the tribe.

Additionally, tribes that have some sort of negligence law still tend to have strict notice requirements and short statutes of limitations. For example, the Match-E-Be-Nash-She-Wish Band of Pottawatomi has enacted the Gun Lake Tort Claims Ordinance.⁹ This ordinance states that no “claim may be brought under this chapter unless written notice of the claim is served upon the Gaming Authority by certified mail, return receipt requested, within 180 calendar days after the claim accrues.”¹⁰ The ordinance also states that the notice must contain very specific language¹¹ and that every claim “filed under this chapter must include proof of compliance with this section.”¹² Additionally, the statute of limitations for such claims is limited to “240 calendar days of the date on which the claim accrued.”¹³ Failure to meet all of these requirements will result in the claim being dismissed.

Another hurdle is where the tribe may not have any negligence law at all. For instance, neither the Nottawaseppi Huron Band of the Potawatomi (NHBP), which owns FireKeepers Casino Hotel in Battle Creek, nor the Saginaw Chippewa Indian Tribe, which owns Soaring Eagle Casino & Resort in Mt. Pleasant, has a negligence law for patrons that get hurt within their casinos or hotels. In these situations, each tribe will likely assert its sovereign immunity, which may bar any sort of recovery for a personal injury. In my experience working with these types of tribes, an insurance policy may exist that allows for some level of recovery, but there might also be additional hurdles in order to recover.

WORKERS’ COMPENSATION CASES

The most common types of tribal workers’ compensation claims tend to come from employees of tribally owned casinos and employees who work for the tribal government in landscaping and/or maintenance capacities. In any tribally managed employee workers’ compensation case, though, it is vital to understand that tribal law dictates potential remedies and not the laws of the State of Michigan.

Workers’ compensation cases that arise out of employment under tribal law share a lot of the same challenges as their personal injury counterparts. Once again, some Michigan tribes do not have any sort of formal legislation that governs procedures or rights for injured employees. In the cases of tribes that do provide workers’ compensation protection, the laws might be very heavy-handed against the employee, severely limiting their rights to wage loss and/or medical treatment. Additionally, these tribal laws rarely provide employees with protection from termination if they are terminated because they cannot work because of their injury.

Perhaps one of the most straightforward workers’ compensation laws is that of the Sault Ste. Marie Tribe of Chippewa Indians.¹⁴ The tribe’s code, although unique in certain aspects, is similar to Michigan’s own workers’ compensation law, even if it is not a one-to-one match. For instance, it clearly defines what an average weekly wage is,¹⁵ how employees can apply for benefits,¹⁶ and the steps to take if their application is denied.¹⁷

In contrast, some tribes do not have any organized workers’ compensation system, including tribes that may nevertheless have a negligence law on their books. For instance, as mentioned earlier, the Pokagon Band of Potawatomi has a Tort Claims Act. However, the tribe does not have an independent workers’ compensation law. In this situation, as with any tribe that does not have a workers’ compensation law, an injured employee’s compensation is normally governed by the policies and procedures of the employer and potentially a third-party or in-house workers’ compensation insurance policy, if applicable. Anything that falls outside of these policies and procedures would not be compensable because of the tribe’s sovereign immunity.

CONCLUSION

When a prospective client comes to an attorney with a potential personal injury or workers’ compensation claim that occurred in Indian Country, special expertise is required. The client likely does not know that different laws will apply to their potential claim, and it is even possible that the client is not aware that they were on tribally owned land when the claim arose. Therefore, it is vital that the attorney sets proper expectations during the intake, takes the time to properly review the appropriate tribal laws, and proceeds with the utmost caution.

An uninformed attorney can make a fatal mistake in these cases, simply because tribal laws can be so different from Michigan’s laws. With a proper understanding of the laws and their application to the case, though, the attorney can often come up with a beneficial resolution for their client.