Lewis v. Clarke Ruling Creates Uncertainty for Tribal Employees

By Karrie Wichtman

On April 25, the United States Supreme Court issued an opinion in Lewis v. Clarke, which will likely lead to further litigation for Indian tribes in defense of their tribal employees. The case stems from a traffic accident in Connecticut when William Clarke, an employee of the Mohegan Sun Casino–owned by the Mohegan Tribe—was transporting casino patrons and rear-ended the vehicle of Brian Lewis vehicle on a state highway off reservation land.

The court focused on two issues:

• Whether the sovereign immunity of an Indian tribe bars individual-capacity damages against tribal employees for torts committed within the scope of their employment.

• What role, if any, a tribe’s decision to indemnify its employees plays in this analysis.

Applying law governing immunity when federal and state employees are sued, the Supreme Court held 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.” The court further held that a tribe’s decision to indemnify such an employee does not change the analysis to “extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak.”

How did the case unfold? The Tribe had a forum specifically designated to provide a remedy for persons injured by casino employees (the Mohegan Gaming Disputes Court), but the Lewises filed a negligence claim against Clarke in Connecticut state court (after the statute of limitations for a tribal court action had lapsed) in his individual capacity.

Clarke moved to dismiss the case for lack of subject matter jurisdiction, based largely on Mohegan tribal law containing an indemnity provision. The provision indemnifies officers and employees from financial loss and expense arising out of any claim, demand, or suit by reason of his or her alleged negligence if they were acting within the scope of their employment. (It doesn’t cover wanton, reckless or malicious activity.)

However, by suing Clark in his individual capacity, the Lewises were able to convince the state trial court that the tribe’s immunity did not shield Clarke from liability for the accident.

Clarke appealed to the Connecticut Supreme Court, which found that Clarke was shielded by tribal sovereign immunity. Thus, regardless of whether Lewis only sought damages from Clarke, the tribe itself was the real party at interest. Lewis appealed to the U.S. Supreme Court, who reversed, holding that tribal sovereign immunity was not applicable to Clarke.

Even though the court found that Lewis’ claims against Clarke were not barred by immunity, the court remained “cognizant of . . . the concern that plaintiffs not circumvent tribal sovereign immunity.” By that, the court made it clear that a person cannot simply bypass sovereign immunity by naming a government employee—claims must be carefully examined to determine underlying characteristics of the lawsuit and the relief sought to determine the “real party in interest.”

The court’s opinion is narrow on the sovereign immunity issue and left open official immunity and other immunity arguments available to local and state governments. However, now that tribal employees can be sued in their individual capacities, more uncertainty has been introduced into the Indian Country legal landscape.

Will tribal employees, sued in their individual capacity, now be subject to the diversity jurisdiction of federal courts? Can a tribal official be sued for torts like interference with contract and breach of the implied contractual obligation of good faith and fair dealing? More concerning, is what will become of cases involving tribal police officers and tribal officials being sued under civil rights claims?

If the concurring opinions are any indication, additional litigation will likely test the application of both on-reservation and off-reservation involving commercial activity and/or non-Indians.