Can employees sue in tribal court when they are defamed?

Yes.  Last month a tribal court stated that an employee of the tribe could sue when a pamphlet was circulated at tribal meetings stating that the employee was terminated by the tribe because she lost millions of dollars in third party billings and after she was fired she violated the nepotism policy by getting her family to intervene and return her to her job.  Unfortunately for defendants, none of these allegations were true.  Please note, the defendants in the case did not include her employer the tribe.

Because the allegations were not true, the employee sued the tribal members who allegedly wrote and circulated the pamphlet.  The employee alleged that she was defamed by these false statements.  Defamation is communicating a falsehood about another which causes them damage.

The tribe did not have an ordinance which prohibited defamation so the employee asked the tribal court to hear the case because defamation violated the traditions and customs of the tribe.  The court applied the traditions and customs of the tribe finding that all people be treated with respect and compassion.

Some of the defendants were dismissed from the lawsuit when they asserted that their statements were excused by the warrior privilege which permitted veterans to “speak their minds.”  The remaining defendants, who were not warriors, could not raise the privilege and therefore face a trial on the employee’s claims of defamation.

There are a couple lessons from this pending case.  First, tribal courts may possess the power (jurisdiction) to hear disputes which are not addressed by the employee handbook or other employment documents.  Second, tradition and custom is a source of tribal law which can be applied by the courts to reflect the unique aspects of the tribe. Third, do not circulate pamphlets which include false statements about another.

Recommendation:  Assess your risk for employee claims which are based on ordinances, resolutions, traditions and customs which may be inconsistent with the employee handbook and other employment documents.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.