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California Personal Injury Lawsuits and Tribal Immunity

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 superior theory.

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.

In 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.