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Tort suit against tribal employee individually doesn’t trigger sovereign immunity

By Joy P. Waltemath, J.D.

In a negligence suit brought against an employee of the Mohegan Tribal Gaming Authority in his individual capacity based on an automobile accident while the employee was driving, the employee, not the tribe, is the real party in interest, the U.S. Supreme Court ruled, holding that the tribe’s sovereign immunity was not implicated. The fact that the driver was acting within the scope of his employment (transporting Mohegan Sun Casino patrons) at the time of the accident is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity. An indemnification provision in the Mohegan Tribe Code did not extend a tribe’s sovereign immunity “where it otherwise would not reach,” reasoned the Court, reversing and remanding a Connecticut Supreme Court decision. Justices Thomas and Ginsburg wrote separate brief opinions concurring in the judgment (Lewis v. Clarke, April 25, 2017, Sotomayor, S.).

Vehicle accident and state court suit. After a married couple’s vehicle was struck from behind by a limo driven by a Mohegan Tribal Gaming Authority employee, who was transporting Mohegan Sun Casino patrons, they sued him in his individual capacity for negligence in state court. The driver argued that because he was a tribal employee of the Gaming Authority—an arm of the Mohegan Tribe entitled to sovereign immunity—acting within the scope of his employment at the time of the accident, he too was entitled to sovereign immunity against the lawsuit. He also argued that the Gaming Authority was bound by tribal law to indemnify him and that entitled him to sovereign immunity as well.

The trial court denied the driver’s motion, but the Supreme Court of Connecticut reversed, holding that tribal sovereign immunity barred the suit because the driver was acting within the scope of his employment when the accident occurred. Of particular significance to the court was ensuring that “plaintiffs cannot circumvent tribal immunity by merely naming the defendant, an employee of the tribe, when the complaint concerns actions taken within the scope of his duties and the complaint does not allege … that he acted outside the scope of his authority.”

Tribal law provisions. Mohegan Tribal law defines sovereign immunity and indemnification policies applicable to disputes arising from gaming activities, and although the Gaming Authority has waived its sovereign immunity and consented to be sued in the Mohegan Gaming Disputes Court, neither the Tribe nor the Gaming Authority has consented to suit for claims arising under Connecticut state law. The Gaming Authority does have an indemnification clause covering officers or employees for negligence claims if they acting within the scope of employment, but it will not indemnify employees who engage in “wanton, reckless or malicious” activity.

No sovereign immunity for individual capacity suit. The Court first addressed whether the sovereign immunity of an Indian tribe bars individual-capacity damages against tribal employees for torts committed within the scope of employment. Courts should look to whether the sovereign is the real party in interest to determine if sovereign immunity bars the suit, remarked the Court, noting that the distinction between individual- and official-capacity suits is paramount. In an official-capacity claim, the relief sought actually is against the official’s office and the sovereign itself. Personal-capacity suits, however, “seek to impose individual liability upon a government officer for actions taken under color of state law,” and those “sued in their personal capacity come to court as individuals”—making the individual, not the sovereign, the real party in interest.

In essence, defendants in an official-capacity action may assert sovereign immunity, and while an officer in an individual-capacity action might be able to assert personal immunity defenses, sovereign immunity does not bar suits seeking individual and personal liability. Tribal sovereignty principles are no different, said the Court, and those principles foreclosed the driver’s sovereign immunity defense here. The case involved a negligence action arising from an accident on an interstate highway in Connecticut brought against a tribal employee operating a vehicle within the scope of his employment. The judgment simply will not operate against the Tribe, stressed the Court. It also noted the Connecticut high court’s concern that plaintiffs not circumvent tribal sovereign immunity—but “that immunity is simply not in play,” the Court reiterated.

Indemnification doesn’t change result. The driver also contended that the Gaming Authority is the real party in interest here because it is required by Mohegan Tribe Code to indemnify him for any adverse judgment. The Court noted that it never before had occasion to decide whether an indemnification clause is sufficient to extend a sovereign immunity defense to a suit against an employee in his individual capacity. It held that “an indemnification provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak.” The critical inquiry to the Court was who would be legally bound by the court’s adverse judgment, not who would “ultimately pick up the tab.”

In this case, the Connecticut courts exercised no jurisdiction over the Tribe or the Gaming Authority, and their judgments would not bind the Tribe or its instrumentalities in any way. The Tribe’s indemnification provision did not somehow convert the suit against the driver into a suit against the sovereign Tribe; when an employee is sued in his individual capacity, he is held responsible only for his individual wrongdoing. The Court pointed out that federal appellate courts that have considered the indemnity question have rejected the argument that an indemnity statute brings the Eleventh Amendment into play in §1983 actions. Similarly, the Court found its conclusion that indemnification provisions do not alter the real-party-in-interest analysis for sovereign immunity purposes to be consistent with the approach diversity of citizenship and joinder issues—the fact that a third party indemnifies one of the named parties to the case does not, as a general rule, influence the diversity analysis either.