Does a lawsuit against a tribal employee for an act he committed within the scope of his employment by the tribe violate tribal sovereign immunity?
With Lewis and Clarke, the Supreme Court will venture into the relatively unfamiliar legal territory of tribal sovereign immunity for individuals employed by Indian tribes. The case arises out of an automobile accident between Brian and Michelle Lewis and William Clarke, an employee of the Mohegan Sun Casino, which is owned by the Mohegan tribe. In a lawsuit brought by the Lewises, Clarke successfully convinced the Connecticut Supreme Court that he was entitled to tribal sovereign immunity. The Lewises argue that sovereign immunity does not apply when a tribal employee is sued in his individual capacity because the finances of the tribe are not formally at risk. Clarke counters that the finances of the tribe are at risk in this suit, and thus, the sovereign immunity of the tribe should extend to him because he was acting within the scope of his tribal employment. To some, the voyage of Lewis and Clarke into the obscure realm of tribal sovereign immunity for individuals imperils tribal coffers; to others, the regulatory power of the states is at stake.
Questions as Framed for the Court by the Parties
Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.
Lewis and Clarke’s five-year voyage to the Supreme Court began on October 22, 2011 with the chance encounter of Brian and Michelle Lewis (“Lewis”) and William Clarke (“Clarke”) in Norwalk, Connecticut. At the time, Clarke was an employee of the Mohegan tribe and was responsible for transporting patrons of the Mohegan Sun Casino in a limousine to their homes. While Clarke was thus navigating Interstate 95, he collided with Lewis’s vehicle, propelling Lewis onto a concrete barrier on the left side of the highway. Thereafter, Lewis set out to sue in the Connecticut Superior Court, alleging the accident was a tort as it occurred due to Clarke’s negligence and carelessness.
Clarke sought to dismiss the lawsuit, asserting a right to tribal sovereign immunity and claiming that he could not be sued because he was an employee of the Mohegan tribe. According to Clarke, Lewis should have sued in the Mohegan tribe’s Gaming Disputes Court, which the tribe established pursuant to an agreement with the state of Connecticut for the purpose of deciding tort claims arising out of the tribe’s gambling activities. The Superior Court denied Clarke’s motion to dismiss, concluding that tribal sovereign immunity did not extend to Clarke as an individual. According to the Superior Court, sovereign immunity would have applied had Lewis sued Clarke as an official of the Mohegan Tribal Gaming Authority. The Superior Court held that, because Lewis sued Clarke seeking compensation not from the Mohegan tribe but from Clarke personally, tribal sovereign immunity did not bar this suit. Clarke disagreed with the Superior Court’s holding and so journeyed onward via appeal to the Connecticut Supreme Court.
On appeal, the Connecticut Supreme Court reversed course. As the U.S. Supreme Court had yet to chart the boundaries of tribal sovereign immunity, the Connecticut Supreme Court relied on guidance from lower federal courts. Based on the decisions of those courts, the Connecticut Supreme Court concluded that tribal sovereign immunity bars Lewis’s suit, solely because Clarke was an employee of the Mohegan Tribe and was performing an official duty. Lewis was not content with ending this legal journey there and petitioned the U.S. Supreme Court for a writ of certiorari, which the Court granted on September 29, 2016. With this case, the Supreme Court must now demarcate the boundaries of tribal sovereign immunity.
DOES SOVEREIGN IMMUNITY APPLY WHEN AN INJURED PARTY SUES A TRIBAL EMPLOYEE IN HIS INDIVIDUAL CAPACITY?
Lewis maintains that applicability of sovereign immunity is based upon whose assets are at risk in a suit, as determined by state and federal law. For example, if an injured party chooses to sue a government employee in his official capacity, then the government’s assets are at risk in the suit, and the doctrine of sovereign immunity would bar the suit. If, on the other hand, an injured party chooses to sue a government employee in his individual capacity, then it is the employee’s own assets that are at risk, and the doctrine of sovereign immunity does not bar the suit. Lewis illustrates this distinction by noting that, despite sovereign immunity protecting the federal and state governments from suit, federal and state employees can still be sued in their individual capacities in actions such as Bivens claims and Section 1983 suits. Lewis argues that the sovereign immunity doctrine should apply in the same manner for tribal sovereign immunity cases. Additionally, Lewis states that a tribe cannot alter the sovereign immunity doctrine of state and federal courts by covering any damages held against tribal employees acting within their scope of employment. Thus, despite the Mohegan Tribal Code’s indemnification of its employees for damage awards, Lewis argues a suit should be allowed so long as the injured party sues the employee in his individual capacity.
Clarke counters with a different interpretation of the sovereign immunity doctrine. He states that the analysis for the immunity of a tribal employee takes a different path from the analysis for a state or federal government employee, noting that previous lower court tribal immunity cases have applied sovereign immunity and official immunity almost interchangeably. Further, Clarke argues that in the tribal immunity context, the relevant inquiry for immunity is not whether an employee is being sued in an official or individual capacity, but whether he was acting in his official capacity at the time he caused an injury. If a tribal employee was acting within the scope of his employment at the time of the injury, Clarke argues that the inquiry then turns to whose assets are at risk in the suit. According to Clarke, if a tribe’s assets are at risk, then the doctrine of sovereign immunity bars the suit in State or Federal court. Clarke maintains that this suit should be barred on grounds of sovereign immunity because the Mohegan Tribal Code indemnifies damages against its employees for actions performed within the scope of their employment. Clarke argues that it should make no legal difference whether the tribe is obligated to pay damages based on state law or tribal law, because Supreme Court precedent has indicated that sovereign immunity applies to cases in which the sovereign is not formally held liable but is held liable “in effect” because it is ultimately responsible for paying the damages. Further, Clarke states that the Court has treated the application of sovereign immunity to state and tribal instrumentalities as a functional question of who is ultimately responsible for paying the damages, based on state or tribal indemnity laws.
DOES OFFICIAL IMMUNITY APPLY WHEN AN INJURED PARTY SUES A TRIBAL EMPLOYEE IN HIS INDIVIDUAL CAPACITY?
Lewis argues that the Court should not explore whether official immunity applies in this case. Lewis states that Clarke did not make the official immunity argument and that the argument goes beyond the question before the Court. Further, Lewis notes that the Court has never extended official immunity to tribal officials. According to Lewis, the official immunity doctrine is ill-suited to the context of tribal employment because the tribal context does not implicate the supremacy concerns present in the federal context. Lewis also notes that official immunity is typically only applied in cases in which a government employee was acting within their discretion, which would not apply in this case.
Clarke responds that the Court should extend the common-law doctrine of official immunity that covers federal employees to the context of tribal employees. First, he argues that the Court can consider official immunity in this case because it has been treated as interchangeable with sovereign immunity in tribal immunity cases and played a critical role in the outcome of the decision below. Clarke maintains that tribal officials, like government officials, require official immunity in order to effectively carry out their duties. In fact, he argues that the need for protection in carrying out official duties is even stronger in the context of an Indian Tribe. Further, Clarke states that this immunity should not be limited to cases in which the tribal official was acting within his discretion, because Congress has rejected such a distinction for government employees in immunity cases. Clarke notes that a tribe’s sovereignty is most akin to that of foreign sovereigns, whose officials are granted complete official immunity. Clarke also argues that refusing to extend immunity in this context would uniquely disadvantage tribal employees because they would not be eligible for the same protections as are afforded to the employees of all other governments.
STATE’S POWER TO REGULATE VS. TRIBE’S POWER TO GOVERN
Clarke asserts that a narrow interpretation of tribal sovereign immunity will hinder effective tribal governance. According to Clarke, if a tribe’s employees are not afforded sovereign immunity, they may become paralyzed by the fear of a lawsuit and avoid discretionary action. Clarke posits that such a result would cripple a tribe’s ability to govern effectively. Additionally, Clarke asserts that prospective employees would steer clear from tribal employment if potentially bankrupting liability was at stake. Clarke thus cautions the Supreme Court to weigh the tribe’s ability to effectively govern when charting the boundaries of tribal sovereign immunity.
The United States, as amicus in favor of reversal, agrees with Clarke’s conclusion but disagrees as to the method. According to the United States, the common law doctrine of official qualified immunity is more appropriate in this context. The United States urges the Court to send the case back to the Connecticut Supreme Court to reconsider it under the doctrine of qualified immunity.
Lewis foresees an alternate problem, asserting that broadly delineated tribal sovereign immunity intrudes upon States’ regulatory authority. According to Lewis, states utilize tort actions as a tool to advance their regulatory scheme. Lewis cautions that should Clarke prevail, the result would weaken the regulatory power of the States.
Clarke disagrees, asserting that the State of Connecticut’s regulatory powers are adequately preserved. According to Clarke, Connecticut had an opportunity to negotiate for a waiver of sovereign immunity with the tribe, but chose not to do so. Clarke thus argues that Connecticut’s power to regulate would not be diminished.
TRESPASSING ON THE DIGNITY OF SEMI-SOVEREIGN TRIBES
According to Clarke, establishing narrow boundaries on tribal sovereign would constitute a trespass on the dignity of the tribes as “separate sovereigns pre-existing the Constitution.” Clarke asserts that inasmuch as law treats foreign dignitaries and officials with sovereign immunity, so it must afford the same to the tribes, which have long been recognized as “‘retain[ing] their historic sovereign authority’ unless Congress abrogates it.” .
Lewis, however, finds no such concern. According to Lewis, the framers of the Constitution devised sovereign immunity to ensure that States would not suffer the humiliation of appearing as parties in federal courts. Lewis concludes that as the present lawsuit was filed against an individual, it would not force the tribe itself to appear in American courts. Thus, according to Lewis, sovereign immunity concerns are not implicated here.
THREATENING THE WEALTH OF THE TRIBES
Clarke also asserts that a narrow delineation of tribal sovereign immunity would threaten the financial integrity of a tribe. According to Clarke, with sovereign immunity, tribes would be allowed to set their own rules of recovery, allowing them to avoid potentially ruinous liability.
In response, Lewis asserts that the present lawsuit poses no danger to the financial security of the tribe. According to Lewis, the only reason the Mohegan tribe may suffer is because it agreed to cover the damages awarded against Clarke. Lewis thus concludes that the tribe could avoid any potential liability by simply refusing to indemnify its employees.
INJUSTICE TO THE VICTIMS
In support of Lewis, the Connecticut Trial Lawyers Association and American Association for Justice (“Associations”) assert a verdict for Clarke could leave many injured parties without a remedy. Specifically, the Associations assert that barring Lewis’s suit would foreclose individuals injured by other tribal employees from having an opportunity to be heard in state and federal courts. Lewis likewise repeats this concern, noting that it is inherently unfair to bar injured parties from American courts solely because of the employment status of their assailant.
Clarke challenges the Associations’ concerns as inconsistent with the facts of the case. Clarke notes that the Lewis family would not be left without a remedy even if tribal sovereign immunity barred their suit in Connecticut courts. According to Clarke, the Lewis family could have sued in the Gaming Disputes Tribal Court, to which other parties that were injured in the same accident appealed and received substantial compensation. Thus, Clarke asserts that injured parties would not be left without a remedy even if the Court were to extend tribal sovereign immunity in federal courts to employees like Clarke.
- Matt Ford, Lewis and Clarke Get Their Day in Court, The Atlantic (Sep. 29, 2016).
- Stella Shannon, Stella on SCOTUS: Lewis v. Clarke, The Politic (Oct. 11, 2016).
- Andrew Westney, Justices May Open Tribal Immunity Loophole in Mohegan Suit, Law 360 (Sep. 30, 2016).