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Lesperance v. Sault Ste. Marie Tribe of Chippewa Indians

United States District Court, W.D. Michigan, Northern Division

April 27, 2017




         Plaintiff fell and hurt herself in a tribal store. She sued the Tribe in tribal court and lost because the tribal court found that Plaintiff failed to comply with the procedural requirements embedded in the Tribal ordinance waiving sovereign immunity for injuries in public buildings. Plaintiff then filed this federal action to overturn the decision of the tribal court system. The Court has sympathy for Plaintiff's position on the particulars of this record, but the Court has no jurisdiction to overturn the Tribe's application of its own sovereign immunity ordinance in its own tribal courts. If Plaintiff has a remedy, it is with Congress, or on direct application to the Tribal council, a possibility the Tribal Court of Appeals itself noted. See Lesperance v. Sault Ste. Marie Tribe of Chippewa Indians, APP-16-01, at 6 (July 14, 2016).


         On April 14, 2011, Linda L. Lesperance tripped while entering into the St. Ignace Midjim Convenience Store, a public building owned by the Tribe. Lesperance fractured both wrists and two vertebrae, and received five stiches above her left eye. Shortly thereafter, on April 18, 2011, Patti Simi-a customer representative in the Tribe's insurance department-called Lesperance at her home. Ms. Simi informed Lesperance and her husband that she would be assisting with paying medical bills and out of pocket expenses that were a result of the fall. Over the next several months, Ms. Simi continued to call Lesperance to check on how she was doing.

         On May 4, 2011, Ms. Simi requested Lesperance to prepare a document outlining the incident and her injuries. In addition, Ms. Simi asked Lesperance to come up with an amount of money that she thought was fair to cover all of her pain and suffering. Lesperance and her husband subsequently mailed to Ms. Simi a two-page letter, which requested between $45, 000 and $50, 000. Ms. Simi and Lesperance remained in contact through phone calls, letters, and emails until Lesperance hired an attorney in May 2012.

         On May 2, 2013, Lesperance's attorney sent a claim of damages to the Tribal Secretary via certified mail, seeking economic damages in the amount of $1, 716, 201. After not receiving a response from the Tribe, on December 6, 2013, Lesperance filed a complaint in Sault Ste. Marie Chippewa Tribal Court seeking $1, 926, 000 in damages.[1] She alleged that the Tribe violated the Public Building section of the Tribal Tort Claims Ordinance, which provides:

The Tribe has an obligation to repair and maintain public buildings under its control when open for use by the public. The Tribe is liable for personal injury and property damage resulting from a dangerous or defective condition of a public building owned or occupied by the Tribe if the Tribe had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinarily observant person for a period of 90 days or longer before the injury took place.
(2) As a condition to any recovery for injuries sustained by reason of any dangerous or defective public building, the injured person, within 120 days from the time the injury occurred, shall serve a notice on the Tribe of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant. The notice shall be served on the Tribal Secretary, 523 Ashmun Street, Sault Ste. Marie, Michigan 49783, either personally or by certified mail, return receipt requested.

Tribal Code § 85.106.

         At the trial-level tribal court, the court granted the Tribe's motion for summary judgment and dismissed the case. Lesperance v. Sault Ste. Marie Tribe of Chippewa Indians, Case No. T-14-01 (Dec. 15, 2015). The court stated that although the Tribe waived sovereign immunity for some tort claims, the waiver was conditioned on the party complying with the notice provisions of the Tribal Tort Claims Ordinance. Id. at 3. Based on the plain language of Tribal Code § 85.106(2), the court found that Lesperance was required to serve the notice of claim on the Tribal Secretary by personal service or certified mail. Id. Because Lesperance mailed the letter-not by certified mail-to Ms. Simi and not the Tribal Secretary, the court found that Lesperance did not comply with the notice provision. Id. Finally, the court rejected Lesperance's argument that her claim should be allowed because the Tribe was not prejudiced by the defective notice. Id. at 4. The court reasoned that the plain language of the code did not permit the court to apply a prejudice requirement. Id. Lesperance subsequently appealed to the tribal court of appeals.

         The Tribal Court of Appeals affirmed the tribal court's order dismissing the case. Lesperance v. Sault Ste. Marie Tribe of Chippewa Indians, APP-16-01 (July 14, 2016). The court began its opinion by stating that the primary issue in the case was “not whether [the Tribe] waived its tribal sovereignty at all, but whether [Lesperance's] failure to comply with the requirements of waiving tribal sovereign immunity under Tribal Code [§] 85.106 is a jurisdictional bar precluding their claim.” Id. at 7, n.23. In accordance with Tribal Code § 81.105, the court answered the jurisdictional question by first applying tribal law and any laws of the United States that may apply. Id. at 7.

         The court held that both tribal law and federal law supported the decision that the failure to follow the notice requirements was a jurisdictional issue. First, the court reasoned that the plain language of the tribal code-specifically Tribal Code § 81.103-states that the tribal court has jurisdiction over cases only when the Tribe has expressly waived its sovereign immunity. Id. The court also noted that a different tribal court had treated a similar notice provision as a jurisdictional issue. Id. at 8 (citing Nguyen v. Spirit Mountain Casino, C-04-06-022 (Nov. 1, 2004). Second, the court determined that federal law supports its interpretation because federal courts hold that they lack jurisdiction when a tribe is entitled to tribal sovereign immunity. Id. at 8-9 (citing Lincoln v. Saginaw Chippewa Indian Tribe of Michigan, 967 F.Supp. 966 (E.D. Mich. 1997), aff'd, 156 F.3d 1230 (6th Cir. 1998)).

         The Tribal Court of Appeals rejected Lesperance's appeal to federal case law on equitable tolling. First, the Court of Appeals found the cases inapplicable because they did not involve tribes or tribal law. But second, even applying the cases on their own terms, the Court of Appeals found they supported a decision against Lesperance. The court reasoned that the tribal code used “both exceptional, emphatic language and speaks specifically to the tribal court's jurisdiction[.]” Id. at 9. Because the notice provision was jurisdictional, the court determined that it could not apply equitable tolling as Lesperance requested. Finally, the court found that even if equitable tolling could apply to this case, Lesperance had not met her burden to show that she was entitled to equitable tolling under the five factor test stated in Glarner v. Dep't of Veterans Admin., 30 F.3d 697 (6th Cir. 1994).

         The court also rejected Lesperance's argument that she was denied “equitable due process.” Id. at 15. The court stated that it was unclear what Lesperance meant by due process or how it was applicable to the Tribe. Id. Nonetheless, the court held that Lesperance was not deprived of due process because Tribal Code § 85.106 provided her with a clear procedure to pursue her claim against the Tribe.

         Lesperance filed this Petition to Vacate the Tribal Appellate Court Decision. (ECF No. 1.) She argues that the tribal court decision denied her right to due process and access to the courts because it failed to apply equitable tolling, waiver, and estoppel as mandated by federal law. In addition, Lesperance argues that she was denied due process because the tribal court made factual errors when it determined that even if equitable tolling could apply, Lesperance did not meet the Glarner five factor test. She requests that this Court vacate the tribal court of appeals decision and remand this case to tribal court for a trial on the merits.


         I. Tribal Sovereign Immunity

         “Indian tribes are domestic dependent nations that exercise inherent sovereign authority.” Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024, 2030 (2014) (internal quotation marks omitted). “Among the core aspects of sovereignty that tribes possess . . . is the ‘common-law immunity from suit traditionally enjoyed by sovereign powers.'” Id. (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)). Thus, “[a]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). Congress may abrogate tribal immunity only if its intentions are “unequivocally expressed” and not simply implied. Santa Clara Pueblo, 436 U.S. at 58. Similarly, a tribe may waive its immunity only if such a waiver is “clear.” C & L Enters., v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418 (2001).

         Over the past several decades, the courts have questioned the proper scope and limits of the doctrine of tribal sovereign immunity. The Supreme Court has recognized that tribal sovereign immunity “developed almost by accident.” Kiowa Tribe, 523 U.S. at 756. See also Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 514 (1991) (Stevens, J. concurring) (“The doctrine of sovereign immunity is founded upon an anachronistic fiction.”). In Kiowa Tribe, the Court stated that Turner v. United States, 248 U.S. 354 (1919), which was often the case cited in support of the existence of tribal sovereign immunity, never expressly held that any such doctrine existed. 523 U.S. at 756-57. The Court found that Turner “is, at best, an assumption of immunity for the sake of argument, not a reasoned statement of doctrine.” Id. at 757. Nonetheless, the Court determined that “Turner's passing reference to [tribal] immunity [became] an explicit holding that tribes had immunity from suit.” Id. at 757. (citing Puyallup Tribe. v. Dep't of Game of State of Wash., 433 U.S. 165, 172-73 (1977); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 890-91 (1986); Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 782 (1991); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 268 (1997)).

         After acknowledging the almost inadvertent development of tribal sovereign immunity, the Court questioned whether the reasoning behind sovereign immunity is still ...

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