SCOTUS to Decide if Sovereign Immunity of an Indian Tribe Bars Individual Damages Actions
The U.S. Supreme Court recently granted certiorari in Lewis v. Clarke. The Supreme Court will resolve a Circuit split about whether the sovereign immunity of an Indian Tribe bars individual-damages actions against tribal employees for torts committed within the employees' scope of employment.
In Lewis v. Clarke, the petitioners were motorists who, while driving on Interstate 95 in Connecticut, were struck by a limousine. The limousine was driven by the respondent, who was employed by the Mohegan Tribal Gaming Authority (MTGA) to drive casino patrons to and from the casino. The motorists sued the limousine driver for negligence in Connecticut Superior Court. The driver moved to dismiss on tribal sovereignty grounds, arguing that he was entitled to sovereign immunity because he was an employee of the MTGA and was acting within the scope of his employment at the time of the accident. The trial court denied the motion to dismiss, reasoning that the claims were not barred by tribal sovereign immunity because the motorists sought money damages from the limousine driver personally, not from the MTGA. The limousine driver appealed the decision to the Connecticut Supreme Court.
In reaching its decision, the Connecticut Supreme Court recognized that there is a nationwide split of authority on the issue.
- The Ninth and Tenth Circuits have allowed such suits to proceed, with their analyses focusing on the nature of the remedy that is being sought. For example, the leading case within the Ninth Circuit, Maxwell v. San Diego, 708 F.3d 1075 (9th Cir. 2013), held that a suit against tribal paramedics was not barred by sovereign immunity, because the paramedics were sued in their individual capacities for money damages, and "[a]ny damages will come from [the paramedics'] own pockets, not the tribal treasury."
- Conversely, the Second Circuit has found such suits to be barred, focusing its analysis on the question of whether the tribal employee defendants were acting within the scope of their employment. For example, in Chayoon v. Chao, 355 F.3d 141 (2d Cir. 2004), the Second Circuit held that "Indian tribes enjoy the same immunity from suit enjoyed by sovereign powers and are subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.. . . Furthermore, [the plaintiff] cannot circumvent tribal immunity by merely naming officers or employees of the [t]ribe when the complaint concerns actions taken in [the] defendants' official or representative capacities and the complaint does not allege they acted outside the scope of their authority."
The Connecticut Supreme Court ultimately sided with the Second Circuit, holding that the plaintiff motorists could not "circumvent tribal immunity" merely by naming the limousine driver rather than the MTGA as defendants. Furthermore, the allegations in the complaint – that the limousine driver struck the motorists while he was driving casino patrons – "concern[ed] actions within the scope of his duties" and there were no allegations that he had acted outside the scope of his authority.
On June 3, 2016, the motorists filed a petition for certiorari with the U.S. Supreme Court, asking the high court to decide "whether the sovereign immunity of an Indian Tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment." On September 29, 2016, the U.S. Supreme Court granted the petition.
We will provide an update accordingly upon the Supreme Court's determination. In the meantime, whether a tribal employee will enjoy sovereign immunity when he or she commits torts within the scope of his or her employment will depend largely on the employer's location and jurisdiction.