On April 25th, the Supreme Court ruled that, in civil cases involving American-Indian tribes, sovereign immunity does not include tribal employees when the tribal employee is the “real party in interest.” In Lewis v. Clarke, the defendant William Clarke rear-ended the plaintiffs, Brian and Michelle Lewis who were driving on a highway near, but not in the Mohegan Reservation. Clarke, a resident of Connecticut, was driving customers to the tribe’s casino for which he worked. After the Lewises sued Clarke for damages in a Connecticut state court, the defendant attempted to have the case dismissed on grounds of sovereign immunity, a doctrine that immunizes sovereign governments against legal action unless consent is given. He argued that, in his capacity as an employee of the tribe, he was pursuing tribal interests and thus was covered by sovereign immunity. It is also worth noting that the tribe pledged to indemnify him for all damages.
Supreme Court Case
In a unanimous decision, the Supreme Court drew a hard distinction between individual suits and suits of an official capacity. According to Justice Sonia Sotomayer’s opinion, only official lawsuits fall under the protection of sovereign immunity, a concept derived from Ancient England’s idea that the sovereign is infallible. The Court relied on examples of Section 1983 suits under federal law according to which individuals working for the state may be sued as individuals. In cases involving official statuses, an official may be sued as a representative of the government. If that official were to leave office, the new official, in his or her capacity as a representative, would then be the object of the ongoing suit. The Court found that in Clarke’s case, he should be seen as an individual and not as an official.
Lastly, the Court decided that “[t]he Tribe’s indemnification provision does not somehow convert the suit against Clarke into a suit against the sovereign.”
In her concurrence, Justice Ruth Bader Ginsburg argued that the conclusion should rest on simpler grounds. She thought the Court’s decision should derive from two facts: that the incident was off reservations and that Clarke was not a member of the tribe.
In the course of discussion, Justices decided not to pursue questions pertaining to precedence (Kiowa Tribe v. Manufacturing Technologies and Michigan v. Bay Mills Indian Community). In choosing not to revisit these older cases, the Court decided against making game-changing decisions regarding sovereign immunity.
Nonetheless, the Court toyed with a (dangerous) question that came up in Michigan: should “sovereign immunity [apply] to tribal entities at all[?]” In the end, the Court was deliberating on whether tribes should be considered equal to states.
Ultimately, the question of sovereign immunity is a vexed one, partially because of the various (sometimes contradictory) court rulings and partially because of the various ways in which immunity has been employed. For many years, there was no real recourse for those looking to sue the US government – one could ask Congress to pass a bill issuing compensation for damages, but that was about it. It wasn’t until 1946 that Congress passed the Tort Claims Act, which allowed US district courts to hear tort cases against employees of the US government. From there, the high court issued decisions that clarified (and complicated) the question of sovereignty in varying degrees.
In Clarke’s response to the Lewises petition, he wondered why they didn’t take the case to the Mohegan tribe’s Gaming Disputes Court, which hears cases against its employees. He argued that “a functioning court system is a critical aspect of sovereignty; reducing the efficacy of the Mohegan court system undermines the Tribe’s sovereignty.”
In closing, even in a case as small as this, there is the question of tribal sovereignty, something that Native American civil rights activists have fought long and hard for.