United States District Court, W.D. Michigan, Northern Division
LINDA L. LESPERANCE, Plaintiff,
SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS, Defendant.
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
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).
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.
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.
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. 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.
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.
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.
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)).
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).
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.
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.
Tribal Sovereign Immunity
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).
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)).
acknowledging the almost inadvertent development of tribal
sovereign immunity, the Court questioned whether the
reasoning behind sovereign immunity is still ...