On Monday, January 9, 2017, the United States Supreme Court heard oral arguments in Lewis v. Clarke, a case arising from the Connecticut Supreme Court, which held that an employee of the Mohegan Tribe ("Tribe") was protected by the Tribe’s sovereign immunity when sued in his individual capacity for alleged negligence related to an automobile accident involving non-Indians outside of the Tribe’s Reservation. The case will continue to be closely watched as the Court begins to issue decisions later this year.

Lewis v. Clarke Oral Arguments

After 60 minutes of argument, the case boiled down to resolving the tension created by a patchwork of federal and state laws and court decisions that do not adequately address all of the potential implications of governmental immunity. On the one hand, had the driver been either a federal, state or even foreign entity employee, these various laws would almost always operate to shield the driver from liability in his individual capacity, while also providing a remedy against the sovereign in some forum. In this sense, the Supreme Court could hold that under federal common law that tribal employees should be similarly protected because of the policy considerations underlying these laws.

On the other hand, the Supreme Court is clearly concerned, as evidenced by a number of pointed questions, that perhaps not all tribes would waive their immunity and therefore leave some unknown number of potentially unaware plaintiffs without a remedy for such torts. Not surprisingly, the Petitioner emphasized the impacts of non-Indian litigants and the off-reservation location of the accident returning the Supreme Court to a familiar and contested interplay of federal, state and tribal sovereign immunity.

The federal government also participated in the case but sided against tribal interests under the view that tribal sovereign immunity does not apply to an action against an individual tribal employee but that "official" immunity might apply to protect tribal employees and therefore the case could be remanded to the Connecticut courts.

Related Cases and Further Analysis 

Lewis v. Clarke is the first Indian tribal sovereign immunity case to reach the Supreme Court since the Bay Mills decision in 2014. In Michigan v. Bay Mills, the Supreme Court narrowly reaffirmed the applicability of the doctrine of tribal sovereign immunity, including cases involving a tribe’s so-called commercial activity occurring outside of an Indian reservation. In Bay Mills, the Court cautioned in footnote 8 of that decision that there may be an exception in certain instances, such as where tort victims through no fault of their own are left injured and without a remedy due to tribal immunity. This reasoning does not apply to Lewis v. Clarke because the plaintiffs failed to timely pursue available tribal court remedies, but it nonetheless highlights the notion that the further you get away from traditional tribal governmental functions, the easier it is for courts to find exceptions to tribal immunity.