The U.S. Supreme Court without dissent last week ruled in the case of Lewis v. Clarke that an employee of a tribal business entity, like a casino, cannot claim the protection of sovereign tribal immunity from liability if sued while performing his duties away from the reservation.
The eight justices (Gorsuch was not included because the court reviewed the case before he joined it) ruled in the case of a limonene driver who had been driving for the Mohegan Sun casino but who injured a Connecticut couple when he rear-ended them in 2011.
The couple, Brian and Michelle Lewis, sued, but the suit was dismissed because the driver worked for the Mohegan tribe. Generally, tribes have sovereign immunity that protects them from lawsuit unless they consent to be sued.
Initially the Lewises sued the driver, William Clarke, and the tribal authority, but in a key move dropped the case against the tribe before the case went to court.
The justices admitted that the Lewises initially aimed at the deep pockets of the tribe, as the Connecticut Supreme Court, but insisted that was no longer the issue.
Writing for the majority Justice Sonia Sotomayor, wrote “We are cognizant of the Supreme Court of Connecticut’s concern that plaintiffs not circumvent tribal sovereign immunity. But here, that immunity is simply not in play. Clarke, not the Gaming Authority, is the real party in interest.”
She added that in this and similar cases, “the tribe’s sovereign immunity is not implicated.”
She also wrote, “We hold that, in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated,” and “That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity.”
The ruling ignored the pleadings of various tribes, including the National Congress of American Indians, and some state governments that filed friend of the court briefs with the high court.
The decision recognizes that it is now setting a new precedent that tribes will in future have to follow. Tribal laws and codes cannot “extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak,” said the decision.
Although Clarke has lost the case, Mohegan tribal law requires that it indemnify him for any adverse judgment, unless it determines that he acted recklessly.
The high court recognized this: “The tribe’s indemnification provision does not somehow convert the suit against Clarke into a suit against the sovereign; when Clarke is sued in his individual capacity, he is held responsible only for his individual wrongdoing.”
