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Tribal Sovereign Immunity on Trial at US Supreme Court

Does tribal sovereign immunity extend to an individual working for the tribe? That was the crux of U.S. Supreme Court case Lewis v. Clarke.

Tribal sovereignty is the most significant issue facing Indian country. Within tribal sovereignty is the concept of tribal sovereign immunity — that tribes, as governments, enjoy immunity from lawsuits much like the federal government, states and foreign powers. More explicitly, per Duhaime's Law Dictionary, tribes “...are immune from judicial proceedings without their consent or Congressional waiver.”

But does tribal sovereign immunity extend to an individual working for the tribe? That was the crux of Lewis v. Clarke, heard before the U.S. Supreme Court on January 9.

The case has its roots in a 2011 car accident in which William Clarke, a non-member of the Mohegan tribe working for the Mohegan Tribal Gaming Authority as a limousine driver, rear-ended Brian and Michelle Lewis’s car 70 miles from the reservation, while ferrying Mohegan Sun Casino customers to their home near Norwalk, Connecticut.


Initially, the Lewises filed a personal injury lawsuit against Clarke and the tribe in a Connecticut state court. When they discovered that tribes possessed sovereign immunity, they dropped the tribe from the suit, and attempted to sue Clarke as an individual. However, the Connecticut Supreme Court dismissed their case, stating, “The doctrine of tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority.”

The Lewises pushed back, ultimately taking their case all the way to the Supreme Court. Eric D. Miller, Esq., of Seattle, Washington, representing them, argued that his clients were simply, “...[seeking] relief from the employee personally…[since] The judgment is not enforceable against the [Mohegan] government.” Given that the Court, “...has repeatedly applied [sovereign immunity] to individual capacity actions against federal and state employees, and it applies equally when the defendant is an employee of an Indian tribe.”

Miller stated, “[W]hat the respondent is asking for here is a sort of immunity, a sort of ability to control how the litigation proceeds that is unlike what any other state would enjoy…. That position represents an extraordinary and unwarranted expansion of tribal immunity.”

U.S. Attorney Ann O’Connell’s position on behalf of the United States, and in support of the petitioners as amicus curiae, was very straightforward. “[The] Petitioners’ suit is a personal-capacity suit against an individual tribal employee, and the tribe’s sovereign immunity is therefore not implicated.” She tendered that the case was confounded when the Connecticut Supreme Court concluded that a tribe’s sovereign immunity extended to any of its employees acting within their scope of their employment given their activities on behalf of the tribe. Clarke was not a tribal official, but rather conducting an activity for the tribe. This made it an official immunity issue in a personal-capacity suit, not a tribal sovereign immunity case, she said, so why are we here?

In brief, the Connecticut Superior Court initially denied Clarke’s motion to dismiss the case because “...the Gaming Authority’s sovereign immunity did not protect respondent from being sued ‘in his individual capacity for an alleged tort occurring off the tribal reservation.’” In doing so, that court determined 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.”

The Connecticut Supreme Court reversed this decision with direction to grant Clarke’s request to dismiss the suit. In doing so, it explained that “Indian tribes are domestic dependent nations that exercise inherent sovereign authority, which includes the common law immunity from suit traditionally enjoyed by sovereign powers.” It also stated that tribal immunity doctrine extends to individual tribal officials “in their representative capacity and within the scope of their authority.”

The problem, O’Connell declared, was that the Lewises were suing Clarke in a personal capacity. They rejected the notion that Clarke had, in fact, “official capacity” which would have been covered by sovereign tribal immunity. O’Connell argued that the suit was actually a personal capacity suit, not an official capacity suit, and “...therefore is not barred by the tribe’s sovereign immunity.”

She continued that although “...sovereign immunity does not bar personal capacity suits of a sovereign, employees who are sued in their personal capacities may raise the related but distinct defense of official immunity.” Clarke did not do that.

So, O’Connell asserted, the Court should “decide the tribal sovereign immunity question and remand to the Connecticut Supreme Court, which could address official immunity....”

Neal K. Katyal, representing William Clarke, said, “If Clarke were a federal employee, a foreign employee, or a Connecticut State one, this suit would be barred. There’s no reason the rule should be different for tribes.”

The Connecticut Trial Lawyers Association and American Association for Justice filed an amici curiae on behalf of the Lewises. Their reasoning was that “all individuals whose person or property has been injured should be able to seek a just remedy in our nation’s courtroom.” They essentially charged tribal courts with being inadequate to handle such cases with the “...access, fairness and effectiveness [that] our civil justice depends upon.”

While this may be true in some places, it certainly was not the case for the Mohegans, who have one of the most respected tribal courts in the United States. Nor is it true for many tribal court systems. So although the argument is spurious in this particular case, the broader point the Court must consider is whether if it weren’t the Mohegan tribal court or an equally refined tribal justice system, would the plaintiffs have access to remedies?

The Seminole Tribe of Florida, et al., filed an amici curiae on behalf of some three dozen tribes and organizations in support of the respondent. They argued that a decision on behalf of the plaintiffs would potentially disrupt “...tribes’ working relationships with their sister governments and commitments to individual state and tribal citizens,...” as well as intergovernmental agreements and tribal laws.

Timothy Q. Purdon, Esq., a partner at Robins Kaplan LLP in Minneapolis, and co-chair of both the American Indian Law and Policy Group and the Government and Internal Investigations Group, and who is also active in the Native Americans Rights Fund’s Tribal Supreme Court project, summed the dilemma before the Court more succinctly.

“Key here is that [a] tribal employee should be treated like any other government employee,” Purdon said. “If immunity is defeated here, this employee and this tribe will be treated differently than any other government employee would be treated in that situation. A finding of no immunity in this situation is inconsistent with the way government-to-government relationships work.”

Now it is up to the Supreme Court to decide whether there should be a federal definition for tribal sovereign immunity and how far out its boundary extends.