With more than 100 federally-recognized Indian tribes, California is home
to more Native Americans than any other state in the country. Given the
increasing role that Indian tribes play in the state's tourism, gaming,
and retail industries, it is not surprising that legal disputes between
Native American Indians and non-Indian Californians are also on the rise.
When pursuing a
personal injury suit against an Indian tribe or its officials/employees, it is particularly
important to evaluate issues of sovereign immunity. In a recent California
lawsuit, we were able to sue an employee of a Native American tribe without
naming the tribe and running the risk of tribal court jurisdiction, but
at the same time gaining access to the tribe's insurance on a respondeat
Indian Tribes and Sovereign Immunity
The federal government considers Native American Indian tribes to be distinct,
independent political communities and affords them a large amount of self-government.
Because Indian tribes are considered separate governments, they are afforded
immunity from most lawsuits under the doctrine of sovereign immunity.
Under the U.S. Constitution and later clarified under federal law, Indian
tribes are subject to lawsuits only where Congress has authorized the
lawsuit or the tribe has waived its immunity.
When Native American tribes enjoy sovereign immunity, federal and state
courts lack jurisdiction over the legal dispute, and plaintiffs must pursue
their claims in tribal courts. Each tribe has its own laws and legal procedures,
which are often different from federal and state rules. Tribal judges
are often elders of the tribe and may not be trained attorneys. In addition,
prior legal decisions may not be recorded and are not binding on subsequent
cases, which makes the outcome of legal disputes unpredictable.
Lawsuits Against Tribal Employees
In personal injury lawsuits involving tribal employees, one of the most
common issues is whether tribal sovereign immunity extends to individuals
who work for the tribe. The U.S. Supreme Court has held that tribal immunity
generally "does not immunize the individual members of the tribe."
However, several lower federal court decisions have extended immunity
to "tribal officials" when such officials act in their official
capacity and within their scope of authority.
Turner v. Martire (2000) 82 Cal.App.4th 1042, the California Appellate Court addressed whether law enforcement officers
of an Indian tribe were protected by the tribe's sovereign immunity
against liability for allegedly assaulting and improperly detaining two
union organizers. The appeals court rejected the argument that all individuals
associated with a Native American tribe are entitled to immunity. Rather,
the court held that to qualify for such immunity, "defendants must
show they performed discretionary or policymaking functions within or
on behalf of the tribe" and that their conduct was within the scope
of their official duties.
In our lawsuit, to avoid invoking tribal court jurisdiction, the personal
injury and wrongful death suit named only the individual tribal employee.
After conducting discovery and just prior to trial, the defendant filed
a Motion for Nonsuit based on sovereign immunity, relying largely on the
Supreme Court of Connecticut's non-binding decision in
Lewis v. Clarke, 320 Conn. 706 (2016). In that case, Connecticut's highest court ruled that a tribal employee
can't be sued in an individual capacity unless he acted "manifestly
or palpably beyond his authority." Arguing that the decision "represented
an extraordinary and unwarranted expansion of tribal immunity," the
plaintiffs appealed to the U.S. Supreme Court. The justices recently heard
oral arguments in the case, with a decision expected by June.
In our case, we argued that a tribal employee was not entitled to sovereign
immunity. Under current California law, plaintiffs in certain situations
may sue individual tribal employees, who do not perform policymaking or
discretionary functions for the tribe, without invoking tribal court jurisdiction.
As the discussion above highlights, there is a complex set of rules regarding
suits against Indian tribes and their employees. We will be closely monitoring
the Supreme Court's decision in Lewis v. Clarke, specifically with
regard to how it may impact the ability to sue tribal employees in their
individual capacity. Please stay tuned to our blog for updates.