There are a lot of things to be concerned with after a car accident, but when you are on vacation on the reservation, there is one extra worry: What happens if you get into an accident in on the Indian reservation? Will the law be the law that you have come to expect in car accidents? Will you have to have your lawyer file your suit in a tribal court?
Everyone knows that the laws are different on Indian reservations like the one in North Carolina, the Eastern Band of Cherokee Indians, but what does it really mean after an car, truck, or motorcycle accident? Basically it affects the court in which the matter will be heard: Tribal Court, State Court or Federal Court and the substantive law that will be applied.
Which Court?
In accident cases, there are two matters of jurisdiction that will determine if a matter can be or must be heard in tribal court: Territorial Jurisdiction (a subset of Subject Matter Jurisdiction) and Personal Jurisdiction.
• Territorial jurisdiction refers to the area over which the tribe can exercise their governmental authority, i.e. if an incident does not occur within the Indian reservation, a tribal court will have to find another basis for jurisdiction. Territorial jurisdiction will provide subject matter jurisdiction in most accident cases. In all cases, a court must have both subject matter and personal jurisdiction to enter a valid judgment.
• Personal jurisdiction refers to the ability of a court to bind an individual, e.g. if a non-member of an Indian tribe is just driving through that tribe’s reservation and injures a tribe member, the tribal court likely lacks personal jurisdiction over that person because that person did nothing, except injure someone, to invoke the court’s jurisdiction. If, however, a non-member is a business owner on the reservation, he likely has submitted himself to the jurisdiction of the tribe.
All of that seems a little high-flown, but basically, if the defendant is a member of the local tribe, a car accident case will generally be heard in the tribal court; if the defendant is a non-member of the tribe, a car accident case will generally be heard in state (or federal) court, even if the accident occurred on roads within the Indian reservation.
Members obviously should be under jurisdiction of the tribe, and perhaps are owed the protection that a tribal court might give. Thus, when members are the defendants, the tribal court will likely have jurisdiction.
However, the same logic does not hold for non-member defendants. Thus, courts have sought to limit in some ways the extent of tribal jurisdiction over non-members. For example, the car accidents occurring on right-of-ways ceded by tribes to other governments: as long as the road was on a right-of-way given by the reservation to the state or federal government, the tribe’s claim of jurisdiction over non-members is fairly weak. The accident occurred on a road that the tribe barely regulates and generally non-member tort defendants will generally have little meaningful interaction with the tribe. The non-member came on the reservation to visit, isn’t a member of the tribe, and merely got into an accident on (usually) a state maintained road. The basis for giving the tribe jurisdiction over a non-member accident defendant is seemingly weak.
However, these are just some of the basic ideas at play. State courts may have concurrent jurisdiction in these types of car, truck, and motorcycle accident cases, and federal courts will always have jurisdiction over whether or not the tribal court has jurisdiction. Federal courts may also have diversity jurisdiction in some cases as well.
Which Law?
In tribal court, tribal law will likely be applied, given the nature of cases that will make it into tribal court.
In state and federal courts, it is an open question. The choice of law rules applied normally would usually indicate that the law of the tribe should control in incidents occurring on the reservation. However, given that courts are willing to deny jurisdiction to tribal courts when accidents occur on state-maintained highways, courts may apply state law regardless.
Interestingly, it may be worse for a tribe member to be a defendant in tribal court with tribal law rather than in state court with state law at least in Eastern Band of Cherokee Indians cases: the tribe recognizes comparative negligence rather than North Carolina’s contributory negligence.
