The U.S. Supreme Court’s unanimous decision April 25 in Lewis v. Clarke trims tribal sovereign immunity for tribal employees who get into legal trouble while carrying out their duties off the reservation.
In short, the ruling held that tribal employees can be subject to liability if they commit torts, even if they are acting under the aegis of the tribe—which continues to have sovereign immunity from lawsuit in almost all cases. Which in practical terms means that tribes, like states and the federal government, can’t be sued unless they consent to be sued, or sued within a tribal court system.
The Connecticut couple Brian and Michelle Lewis in October 2011 were driving on a freeway when a limonene driven by William Clarke, an employee of the Mohegan Tribal Gaming Authority, who was providing a complimentary service by driving patrons home from the casino—rear-ended them at a speed that may have exceeded 70 mph.
The couple first sued both the tribal gaming authority and Clarke, but later dropped the tribe from the suit.
Clarke’s attorney originally tried to get the case dismissed under the argument that tribal employees can’t be sued for damages because tribes are immune from such suits. As the decision explained: “He also argued, in the alternative, that he should prevail because the Gaming Authority was bound by tribal law to indemnify him.” Which means that, even though Clarke might be the subject of the lawsuit, the tribe will be bound to pay the judgment against him.
Initially the Connecticut Supreme Court sided with the tribe, ruling that the tribe’s sovereign immunity extended to its employee. However, the U.S. Supreme Court overturned that ruling.
Justice Sonia Sotomayor, writing for the majority, wrote that extending immunity to the driver would provide protection “beyond what common-law sovereign immunity principles would recognize for either state or federal employees.”
Many tribal leaders see the decision as a dagger directly aimed at tribal sovereign immunity. However, the Supreme Court’s syllabus on the case emphasizes that “Clarke, not the Gaming Authority, is the real party in interest. The State Supreme Court extended sovereign immunity for tribal employees beyond what common-law sovereign immunity principles would recognize for either state or federal employees.”
However, Richard Hughes, an expert on Native American law, told the Albuquerque Journal that he believes the ruling will open the way for many lawsuits against tribal employees. “It’s the first case I can think of in which the court has rejected a claim of sovereign immunity on behalf of a tribal employee or entity. We can expect now that suits like this will become more common.”
Justice Clarence Thomas, while agreeing with the decision, takes it a step further. He holds that tribal immunity does not extend to any commercial activities conducted by a tribe outside of the reservation.
