On April 25, 2017, by unanimous vote (8-0) vote, the U.S. Supreme Court ruled that a Native American tribe’s sovereign immunity from lawsuits does not extend to a tribal employee sued over actions he took within the scope of his employment when the employee is sued in his individual capacity.
Respondent William Clarke was a limo driver employed by the Mohegan Tribe of Indians of Connecticut Gaming Authority. While acting within the scope of that employment, Clarke rear-ended petitioners Brian and Michelle Lewis on a Connecticut highway. Initially, the Lewises sued both Clarke and the Gaming Authority. Shortly thereafter, they voluntarily dismissed their claims against the Gaming Authority, but pursued their claims against Clarke individually. Clarke moved to dismiss the suit, arguing that the Tribe’s sovereign immunity barred the suit against him because he was acting within the scope of his employment at the time of the accident and because the Tribe was obligated to indemnify him for any losses that resulted from the claims. Ultimately, the Connecticut Supreme Court held that the doctrine of tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their employment.
The U.S. Supreme Court, however, disagreed.
The Court held that because the suit was against Clarke in his individual capacity (not as an employee of the Gaming Authority), sovereign immunity did not extend to prevent the suit. The Court determined the Gaming Authority was not a real party in interest, despite its obligation to indemnify Clarke. “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,” according to the opinion written by Justice Sonia Sotomayor. “We hold further that an indemnification provision does not extend a tribe’s sovereign immunity where it otherwise would not reach.”
The decision specifically leaves open the question of whether an employee of a tribe could use official immunity as a defense to a lawsuit when an employee acts in an official capacity on behalf of a tribe.
Justices Clarence Thomas and Ruth Bader Ginsburg filed concurring opinions. Justice Ginsburg’s concurrence recorded her continued objection to the line of cases extending tribal immunity to activities outside the reservation. Justice Thomas similarly wrote that he does not think tribal sovereign immunity extends to commercial activities off-reservation, citing his dissent in Michigan v. Bay Hills Indian Community, 572 U.S. __, 134 S. Ct. 2024 (2014)(dissenting opinion).
Justice Neil Gorsuch was not on the bench at the time of oral arguments and did not participate in the decision.
As a result of this decision, tribal employers should know that their employees may be individually liable for torts committed within the course and scope of their employment off tribal lands. Tribes must therefore be aware of whether they have a duty to indemnify the employee under tribal law or contract. They should also review their insurance coverages for such events.