Court weakens tribal immunity
U.S. Supreme Court says off-reservation incidents can be subject to litigation
It could be easier now to sue employees of New Mexico tribes after a ruling from the U.S. Supreme Court that took a rare swipe at tribal sovereign immunity from lawsuits.
A recent ruling addressed how employees of Native American tribes can be sued for damage caused by the employee while doing a tribal job, specifically if the employee is covered by the tribe’s insurance.
The employee in the case, a limo driver for the Mohegan Sun casino in Connecticut, attempted to argue that, because he was on duty and covered by the tribe’s insurance when he crashed, he was covered by the tribe’s sovereign immunity.
The concept of sovereign immunity has long held that, because Native American tribes are basically independent nations, they can’t be sued unless they agree to be sued. States and the federal government have sovereign immunity, too.
But the justices ruled, in a majority and two concurring opinions, that insurance coverage doesn’t extend immunity to an individual employee, especially for incidents off the reservation.
That means the tribal employee can be sued in Connecticut state court.
Extending immunity to the driver would have given him protection “beyond what common-law sovereign immunity principles would recognize for either state or federal employees,” Justice Sonia Sotomayor wrote in the majority opinion, joined by Justices John Roberts, Anthony Kennedy, Stephen Breyer, Samuel Alito and Elena Kagan.
New Mexico Native American law expert Richard Hughes expects the ruling, which he called “significant,” to open the door for lawsuits against tribal employees.
“It’s the first case I can think of in which the court has rejected a claim of sovereign immunity on behalf of a tribal employee or entity,” Hughes said. “We can expect now that suits like this will become more common.”
Justice Clarence Thomas agreed with the ruling, but for different reasons.
“I remain of the view that tribal immunity does not extend to suits arising out of a tribe’s commercial activities conducted beyond its territory,” he said.
The Connecticut Supreme Court originally dismissed the
case, saying the tribe’s immunity did include the employees and any suit against the tribe’s gaming entity belonged in tribal court — not state court where this lawsuit had been filed.
New Mexico Attorney General Hector Balderas, along with some New Mexico and Native American tribes and several state attorneys general, agreed with giving the tribal employee immunity.
Kenneth Stalter, general counsel for the AG’s Office, said in an email that the federal Supreme Court’s ruling, while not what they were hoping for, is narrow “and we will work to make sure that it does not interfere with the strong relationships that exist between New Mexico’s diverse municipalities and tribal entities.”