The Supreme court heard four Indian Law Cases last term, but the one on its docket today, Lewis v. Clarke, is an extremely important case. Indian Tribes are currently granted sovereign immunity with respect to U.S. law, which means that tribes are immune from lawsuits and judicial proceedings unless they give their consent or are faced with a (rare) Congressional waiver. Lewis v. Clarke raises the question of how far this immunity extends. If the court sides with the Plaintiff, the doctrine of tribal immunity will be severely compromised by the ability to bypass its protections by filing suits against individuals rather than the tribe itself. Confused or curious? Let’s take a closer look at the case:
On October 22, 2011, Brian and Michelle Lewis were rear-ended by William Clarke, a Mohegan Gaming Authority limousine driver. Now, the Lewises are suing Clarke for damages.
But Mr. and Mrs. Lewis did not originally file their suit against Mr. Clarke. Rather, they listed the Gaming Authority as the defendant. Realizing that they might meet resistance due to the doctrine of Tribal Immunity, they took the tribal organization off the case and directed the blame at the individual, Mr. Clarke.
Mr. Clarke holds that he deserves immunity because the crash occurred while he was driving the Gaming Authority’s limo in the scope of his duties as an employee. His logic is that employees of organizations related to sovereign bodies deserve immunity, and since he was employed by Mohegan Tribal Gaming Authority, which is an arm of the Mohegan tribe, his role as the employee of an immune organization should make him immune as well.
Initially, the Trial court rejected Clarke’s argument. Then, the Connecticut Supreme Court reversed the ruling. Now the Lewises have taken the case to the Supreme Court, asking the justices to decide whether or not tribal immunity extends to individual employees.
The questions this case raises are two-fold: Are employers responsible for the behavior of their employees? And if so, do the immunities of the employer extend to their employees?
Mr. Clarke’s appeal is conditional. The Supreme Court must buy-in to the notion of trickle-down immunity from the tribe to its employees. Clarke argues that because he was acting as an employee of the Mohegan Tribal Gaming Authority, his actions are subject to the same immunities that his employer is afforded. So, while the defendant does not argue that he should not be the subject of the Plaintiff’s blame, he does argue that he is immune to the repercussions of that blame via trickle-down immunity.
Mr. and Mrs. Lewis counter that because they are seeking reparations from the individual directly, they are not affecting the tribe, and tribal immunity therefore does not apply. All you grammarians out there are probably hearing your internal English teachers screaming “synecdoche, synecdoche, synecdoche!” into the folds of your cranium and the fragile cavern of your skull. And you are right. The question at hand is whether or not the individual represents the whole: to the plaintiff, it doesn’t. To the defendant, it does.
And the defendant is not alone. In similar cases, The Second Circuit (an appellate court with six domestic districts) has ruled in favor of individuals seeking similar immunity in the name of tribal sovereignty. In Chayoon v. Chao, (2d Cir. 2004) the court stated that the plaintiff in a given case “cannot circumvent tribal immunity by merely directly naming officers or employees of the tribe 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.’’ With this precedent in place, it may seem like the case would be an easy win for Mr. Limousine Driver.
But the case is not as black and white as our defendant’s tuxedo. In fact, the history of individual immunity itself has a complex history in the courts, and it is the opacity of this history that drives the questions the Supreme Court will face as it decides the case. So let’s take a look at the precedent in place so we can get a little insight into the roadmap the Court will have in mind. Then, you can rally your teams and wage your bets as you wait eagerly to find out if our driver from Mohegan Gaming Authority will hit a lucky strike.
What past rulings will the Court likely consider?
In Lewis v. Clarke, the plaintiff’s lawyers argued in trial that because they seek reparations from the individual, the damages sought will not affect the tribe, and are therefore outside the scope of tribal immunity. The Plaintiff noted that in a previous case, the Ninth Circuit noted that a similar “remedy” sought directly from the defendant would be allowed because ‘‘[a]ny damages will come from [the paramedics’] own pockets, not the tribal treasury.’’ But the Ninth Circuit’s support of the abstention of tribal immunity was based on the defendant having acted with such extreme negligence that his actions were beyond the scope of tribal authority—in other words, the decision was qualified by providing a sufficient cause that must be met in order withhold immunity. If an individual acts “‘manifestly or palpably beyond his [tribal] authority,” only then is she to be judged before state and federal law. While immunity has been withheld in a few other instances, it has largely been supported by the both trial and appellate courts.
Even the Ninth Circuit has contradicted the “remedy sought” argument in Maxwell, as the Connecticut Supreme Court notes in its reversal of the trial court ruling: “In Murgia, the Ninth Circuit explained that ‘‘[t]he [trial] court erred in concluding that tribal sovereign immunity did not apply solely because the [d]efendants were [named] in their individual capacities.” This opinion makes sense: if all it takes to surpass immunity is to charge an individual rather than an organization or tribal body, the individual parts of the immune whole would all be subject to the same state and federal laws as all U.S. citizens, which would defeat the purpose of treating tribes as sovereign states and jeopardize the integrity of tribal immunity.
The Connecticut Supreme Court’s ruling echoes this logic. The State Supreme court ruled in favor of Clarke: Will the U.S. Supreme Court side with Connecticut and grant a tribe’s employees the same immunity of their employers? Or will the Supreme Court rule in favor of the plaintiff, overriding sovereign immunity and opening the door for disputing parties to press charges at an individual in order to bypass immunity granted to an aggregate whole? With no such rulings on the specific nature of this conflict in the Court’s history, Lewis v. Clarke will take us on an important expedition to discover the future of individual sovereign immunity.
Want to read more about the Lewis v. Clarke’s journey through the courts? Check out this quick read on Lexis.