Waterford attorney, tribes on opposite sides of U.S. Supreme Court case

In 2011, Brian and Michelle Lewis of Bethlehem, Pennsylvania were driving on Interstate 95 in Norwalk when a limousine rear-ended their vehicle, resulting in serious injuries. While normally, these kinds of accidents result in significant compensation for those injured, the Lewises have not been able to recover up to this point, due to a legal doctrine that prevents Indian tribes from being sued.

In this case, the limousine driver was employed by Mohegan Sun, an Indian tribal casino.

Enter Polito & Harrington attorney James Harrington. Harrington, a 37-year old associate at the firm, used an argument made in the 9th Circuit, which, covering nine western states and two pacific island jurisdictions, does not set controlling precedent in Connecticut. Nonetheless, decisions in other circuits can have persuasive merit, prompting Harrington to raise the issue.

The essence of the argument, according to Judge Leeland Cole-Chu, “is that sovereign immunity does not extend to a tribal employee who is sued in his individual capacity when damages are sought from the employee, not from the tribe, and will in no legally cognizable way affect the tribe’s ability to govern itself independently.”

Furthermore, according to Judge Cole-Chu, tribal sovereignty is “limited.”

Based on this understanding of the law, Cole-Chu denied the limousine driver’s motion to dismiss. When the Connecticut Court of Appeals reversed Cole-Chu’s decision, Harrington decided to petition the United States Supreme Court, which agreed to hear the case last September.

The case has pitted the various parties against one another. On one side is Harrington, with the U.S government, the American Association for Justice, and the Connecticut Trial Lawyers Association who have all filed briefs in support of the plaintiff’s position. On the other are dozens of Indian tribes and the states of Arizona, Colorado, New Mexico, Oregon, and Texas, who have filed briefs supporting the defendant.

Harrington makes clear that he is not trying to put an end to the immunity enjoyed by Indian tribes. Quoted by The Day, Harrington says that “We’re not seeking to eradicate tribal sovereignty, but to provide a degree of protection for people who have no reason to believe they’re subject to tribal law.”

According to Polito & Harrington founding member Humbert J. Polito, the case represents the intersection of the work his firm does in both civil and tribal courts. Polito also said that he believes it is the first case the Supreme Court has accepted from Connecticut since it accepted Kelo v. City of New London, a landmark case in the area of eminent domain.

Read the full article here.