At the end of September of this year, the U.S. Supreme Court decided to hear the case of Lewis v. Clarke, a case arising from an auto collision in the state of Connecticut. You might be wondering why I care about a case in Connecticut? Well, I found this case interesting as it involves this question: Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees within the scope of their employment?
Sovereign immunity is a government or state’s immunity from being sued in its own courts without its consent. In the United States, Native American tribes have tribal sovereign immunity as they are “domestic dependent nations that exercise inherent sovereign authority.” Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509 (1991). In other words, because Native American tribes have sovereign immunity, you can’t sue the tribe in court, though this is subject to congressional action.
In the case of Lewis v. Clarke, the defendant, Clark, was driving a limousine owned by the Mohegan Tribal Gaming Authority (part of the Mohegan Tribal Nation) carrying patrons of the Mohegan Sun Casino to their home within the scope of his employment. The defendant rear-ended the plaintiffs and propelled their vehicle forward causing it to rest partially on top of a concrete barrier on the highway. The plaintiffs sustained injuries from this collision.
When the case was brought to court, the plaintiffs named the driver in his individual capacity in the lawsuit, and therefore, claimed that the court had what is called subject matter jurisdiction. However, the defendant filed a motion to have the case dismissed claiming the court did not have subject matter jurisdiction due to tribal sovereign immunity. The trial court denied his motion. However, on appeal, the Connecticut Supreme Court agreed with the defendant that tribal sovereign immunity applied here.
The plaintiffs then filed a writ of certiorari in June 2016 with the U.S. Supreme Court. The Court granted the writ in September 2016 agreeing to hear the case.
Before the writ was granted, the defendant had filed a reply brief to the writ request, posing this question: Does tribal sovereign immunity bar a plaintiff from pursuing a claim for tortious conduct committed by an employee of a tribal gaming authority while the employee was in the scope of his employment?
As of this date, the Court has not heard the matter. One of the issues the Court will have to look at is a slight split among lower courts. In certain circumstances some courts have held that tribal sovereign immunity does not apply in individual-capacity damages cases as is the situation with Lewis v. Clarke. Specifically, immunity would not apply to a tribal employee’s actions outside of his or her scope of employment. However, in one case the individuals were found to have acted “grossly” negligent and tribal immunity did not bar the plaintiff, and the individual employees could be sued in their individual capacities. The Connecticut Supreme Court saw a difference between that case and the one involving the defendant in Lewis v. Clarke as Mr. Clarke did not act with “gross negligence.”
I think this situation is very important given the interplay between “tribal sovereign immunity” and wanting to hold someone accountable for what happen to plaintiffs. The ultimate question is: At what cost to accountability do we uphold the legal principle of “tribal sovereign immunity?”
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