Tribe’s Employee Can’t Share Sovereign Immunity

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By Patrick L. Gregory

Tribal sovereign immunity doesn’t protect an American Indian tribe’s employee sued in his individual capacity, the U.S. Supreme Court ruled April 25 ( Lewis v. Clarke , U.S., No. 15-1500, reversed 4/25/17 ).

“The initial impact could be very big,” Matthew L.M. Fletcher, a professor and director of the Michigan State University law school’s Indigenous Law & Policy Center, East Lansing, Mich., told Bloomberg BNA by email April 25.

The ruling “is pretty broad,” and “I anticipate dozens of plaintiffs’ lawyers packaging complaints against tribal employees on a wide variety of issues to test how wide the lower courts will interpret this decision,” Fletcher said.

But personal immunity defenses may still be available for tribal employees in some cases, the court suggested. Such defenses include official immunity, which protects some government workers for suits involving actions taken in the course of employment.

The decision is therefore “significant, but not huge,” Bethany Berger, a professor at the University of Connecticut law school, Hartford, Conn., told Bloomberg BNA by email April 25.

‘Paramount’ Distinction

The court distinguished individual-capacity claims from suits brought against employees in their official capacity, in a decision by Justice Sonia Sotomayor.

That distinction is “paramount,” the court said.

“In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself,” the court said.

Therefore, the “real party in interest is the government entity, not the named official.”

But in individual-capacity suits, “the real party in interest is the individual, not the sovereign,” the court said.

It’s Personal

Here, the plaintiffs sued William Clarke, an employee of the Mohegan Tribal Gaming Authority, in a personal injury suit arising from an automobile accident, the court said.

“This is not a suit against Clarke in his official capacity,” the court said.

Rather, it was “simply a suit against Clarke to recover for his personal actions.”

The suit wouldn’t require action by the tribe, the court said.

Further, a tribe’s agreement to indemnify employees like Clarke can’t extend sovereign immunity to employees who otherwise wouldn’t be protected by it, the court said.

Clarke therefore wasn’t entitled to sovereign immunity, the court said.

State Immunity Compared

The court compared tribal sovereign immunity to state sovereign immunity.

“We have not before treated a lawsuit against an individual employee as one against a state instrumentality, and Clarke offers no persuasive reason to do so now,” the court said.

Nor has the court ever found that a civil rights suit “against a state officer in his individual capacity” implicates state sovereign immunity, the court said.

The Connecticut Supreme Court “extended sovereign immunity for tribal employees beyond what common-law sovereign immunity principles would recognize for either state or federal employees,” the court said.

The unanimous decision reversed the Connecticut Supreme Court’s dismissal of Brian and Michelle Lewis’s personal injury suit on sovereign immunity grounds, and remanded the case.

Short-Term Uncertainty

The ruling will likely increase the number of lawsuits filed concerning civil rights, “contract breaches, trespass to property, and of course tort claims,” Fletcher said.

The “real question is whether any tort claims against tribal officials anywhere involve a tribe’s sovereign interest,” he said.

“I imagine insurance companies will be calling their tribal insured right quick, and vice versa,” he said.

But in the long term, “things will settle down,” Fletcher predicted.

“Tribes already insure themselves from the actions of their employees.”

Tribes’ cost of doing business may increase, “but I don’t anticipate terrific impacts there,” he said.

“Just a lot of uncertainty for a few years until everyone’s used to the new regime.”

Behind the Curtain

The court’s technical discussion about the “real party in interest” put “the real issues behind the curtain,” M. Todd Henderson, a professor at the University of Chicago Law School who has taught American Indian law, told Bloomberg BNA by telephone April 25.

The court’s actual motivation for the outcome here was avoiding bias by a tribal court against nonmember plaintiffs, he said.

As federal diversity jurisdiction allows plaintiffs to avoid potentially biased courts in the defendant’s home state, allowing plaintiffs to proceed in state court here avoids potentially biased tribal courts, he said.

This outcome is more likely to lead tribes—which often indemnify employees—to be liable for the costs that they impose on others, he said.

Official Immunity May Remain

Though Clarke wasn’t sued in his official capacity, it’s possible that he still has an “official immunity” defense to the individual capacity suit.

The court declined to consider whether Clarke had a valid official immunity defense because he didn’t raise that argument until the case reached the high court.

But by “so clearly linking the tribal sovereign immunity question to similar analysis of state and federal sovereign immunity, the Court suggests that such defenses should be available,” Berger said.

That avoids the “huge problem” that would exist “if litigants could do a run-around tribal sovereign immunity just by bringing individual capacity suits against tribal employees,” she said.

“Ambulance drivers would worry about lawsuits if they drove too fast,” and “tribal judges would worry about lawsuits if they ruled against a party,” she said.

‘Best Possible Loss’

The decision wasn’t all bad for tribes, multiple scholars said.

“I think this was the best possible loss that tribes could have” because the decision relied on “rules for suing federal and state governments,” Berger said.

If the court continues making such a connection, “states arguing against tribal sovereign immunity will have to realize that arguments that undermine tribal sovereign immunity may also hurt them,” she said.

The court’s 2014 decision in Michigan v. Bay Mills Indian Cmty. is a notable example of states fighting tribal immunity, Robert Anderson, a professor at the University of Washington law school, Seattle, and director of its Native American Law Center, told Bloomberg BNA by telephone April 25.

Michigan, assisted by other states as amici, made an “all out push” to “limit tribal authority severely for off-reservation activity and also for tribes that were engaged in commercial activity,” Anderson said.

But the court ruled in favor of tribal sovereign immunity, he said.

Thomas, Ginsburg Concur

Justices Clarence Thomas and Ruth Bader Ginsburg each concurred separately in the judgment.

Thomas wrote that tribal immunity doesn’t apply to suits arising from a tribe’s commercial activities outside of its boundaries.

Similarly, Ginsburg wrote that tribes “should be subject to non-discriminatory state laws of general application” when they interact with nonmembers outside of tribal boundaries.

Ginsburg agreed with the majority concerning indemnification.

Justice Neil M. Gorsuch didn’t take part in the consideration or decision of the case.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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