The U.S. Supreme Court recently agreed to hear the case of Lewis v. Clarke and address the issue of whether an Indian tribe’s sovereign immunity protects employees who are acting in their capacity as employees from being sued individually for actions they take during the performance of their jobs away from the reservation.
The case, a limousine driver for the Mohegan Tribal Gaming Authority, William Clarke, hit another car while performing his duties away from the Authority’s casino. The couple that he hit first sued the Authority and Clarke and then dropped the Authority from their claims. This left Clarke as the sole defendant. He is being sued in his individual capacity, not as an employee of the tribe.
Clarke seeks dismissal of the case on grounds of tribal sovereign immunity while the plaintiffs claim that he is not entitled to that protection. The lower court agreed with the plaintiffs and Clarke appealed to the Connecticut Supreme Court, which reversed the ruling, holding that tribal immunity extends to an official acting as its representative, much as a state employee could not be sued individually for his actions as a state employee.
The petitioners successfully appealed to the U.S. Supreme Court, which has agreed to hear the case. In their claim to the high court they write: “The policies underlying immunity do not support expanding tribal sovereign immunity to bar individual-capacity damages actions against tribal employees: doing so is not necessary to protect the sovereign dignity of Indian tribes or to protect the tribal finances, nor is it needed to protect tribal autonomy and self-government.”
The Supreme Court has never considered this aspect of tribal sovereignty. In a separate case Justice Elena Kagan wrote: “We have never, for example, specifically addressed (nor, so far as we are aware, has Congress) whether immunity should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct.”
Now the court will. Oral arguments for the case have yet to be set.
