Employees lose tribal immunity off-reservation
Acase involving high rollers rolling down the highway rolled out of the high court last month. The case, with the resonant name Lewis v. Clarke, has great significance for New Mexico’s Indian gaming industry and for anyone injured by the negligence of a casino employee.
In October 2011, Brian and Michelle Lewis were driving on the freeway through Norwalk, Conn., when they were rearended by a limousine. According to their attorney, their vehicle was actually stopped and the limousine hit them at 60 to 70 mph, so it’s a bit of a miracle that they survived. The Lewises sued the driver of the limousine and his employer.
But the driver, Clarke, was working for an Indian casino, the Mohegan Sun, located in Uncasville, some 80 miles up the Connecticut coast from Norwalk. (The Uncas in question was a historical figure, a great tribal leader, whose name was borrowed by James Fennimore Cooper for a character in “The Last of the Mohicans.”) The Mohegan Sun’s website says complimentary limo service is provided to “select” members of the casino’s rewards program. Presumably that’s what Clarke was providing.
Indian tribes, while subject to congressional authority, are “domestic dependent nations that exercise inherent sovereign authority.” That’s the United States Supreme Court’s formulation, which shorn of historical context might sound self-contradictory. One aspect of tribal sovereign authority is immunity from suit. The Mohegan tribe permits itself to be sued only in its own tribal courts, where tort actions are tried without juries and damages are capped.
The Lewises preferred Connecticut state court. Their initial complaint named both Clarke and the Mohegan Tribal Gaming Authority. But the gaming authority, as an arm of the tribe, was immune from suit. So they dismissed the employer and proceeded against the employee only. Normally, that wouldn’t be an advisable litigation strategy. If limo drivers had piles of money, they wouldn’t be driving limos. But the Mohegan tribal code indemnifies casino employees for claims arising out of their employment. Consequently, any judgment against Clarke would ultimately be paid by the tribe.
The tribe argued that its sovereign immunity shielded Clarke from suit. First, it argued, Clarke was acting within the scope of his employment, which made his actions tribal actions. Second, any damages were coming out of the tribe’s pocket anyway, so as a practical matter it was as if the tribe were being sued directly.
The Connecticut Supreme Court didn’t need to consider the second argument because it found the first persuasive. It relied on a succession of cases holding that “the doctrine of tribal immunity extends to [1] individual tribal officials acting in their representative capacity and [2] within the scope of their authority.” That’s a two-part test, but the court concluded Clarke was immune because has was “acting within the scope of his employment.” While claiming to be following precedent, the court jettisoned the first part of a two-part test.
On April 25, the U.S. Supreme Court unanimously reversed. Justices Clarence Thomas and Ruth Bader Ginsburg, opponents on so many issues, would have held that an offreservation tribal business should be treated the same as any other private business, period. The other six justices simply reinstated the missing part of the two-part test, although they didn’t put it as simply as that. (They wouldn’t be the Supreme Court if they did.) They wrote that the key question is whether a lawsuit is against a tribal employee in an individual capacity or if it is “in fact against the official’s office and thus the sovereign itself.” In the former situation, the individual defendant is the “real party in interest” and the suit may be maintained. But in the latter situation, the tribe is the real party and the suit is barred.
Unfortunately, such legal phrases are conclusions, not tools for analysis. They provide little guidance to lower courts. Luckily for the justices, the case in front of them was about as easy as it gets. “This is not a suit against Clarke in his official capacity,” they held, if only because limo drivers don’t really have official capacities. Nor did it matter that the tribe was obligated to indemnify him. Justice Sonia Sotomayor, writing for the majority, got off what for a Supreme Court justice counts as a snappy oneliner: “The critical inquiry is who may be legally bound by the court’s adverse judgment, not who will ultimately pick up the tab.”
The Lewis v. Clarke holding applies directly to all New Mexico casinos. Tribal immunity does not follow ordinary casino employees when they leave the reservation’s boundaries, even when they’re working on tribal business.