Supreme Court to Soon Decide Whether Tribal Sovereignty Extends to Employees of Native American Businesses in Tort Actions

By Patrick Harty, J.D. Class of 2018 Touro Law Review  Junior Staff Member

On October 22, 2011, a car accident occurred near Norwalk Connecticut. William Clarke, who at the time was acting for his employer, caused the accident.[1] Ordinarily, this case would be solved through a simple tort law analysis.[2] Traditionally, if the employee acted within the ordinary scope of business, the employer would also be liable for the employee’s negligent conduct.[3] However, the employer in this instance is the Mohegan Sun Gaming Authority.[4] This is a business that is owned by the Mohegan Tribe, which is a federally recognized, sovereign Indian nation.[5] Sovereign immunities, which allow Native Americans to govern themselves, have long been recognized in the United States.[6] This immunity creates an assumption that “’until Congress acts, the tribes retain’ their historic sovereign authority.”[7] However, the area involving their employees still remains relatively gray, which is the reason for this Supreme Court case.[8] The victims, in this case, Brian and Michelle Lewis, are challenging the Connecticut Supreme Court’s ruling that the sovereign status given to American Indian tribes extends to its employees.[9] The case before the Supreme Court, which was argued on January 9, 2017, will attempt to answer the question of whether Native American’s sovereign status extends to its employees when they are acting within the scope of employment.

Regarding tribal sovereignty, the extent of the federal government’s power to intrude on sovereignty has remained unclear.[10] There are several competing theories regarding the extent of the federal government to control tribal sovereignty. Some believe that this right was never granted by the United States, but is inherent.[11] If the Supreme Court were to follow this theory, it would be presumed that all those associated by employment with a sovereign Native American tribe would also be granted sovereignty. Another competing theory is that this sovereign right is only”quasi-sovereignty.”[12] This means that the tribe’s sovereignty is within the discretion of the Federal government. The government can change, modify, or eliminate anything regarding the tribe’s sovereign status as it sees fit.[13]

When making their case, Petitioners argued that a case argued before the Second Circuit, Maxwell v. San Diego,[14] which determined that employees acting on behalf of a sovereign tribe may be sued in their individual capacity.[15] The Petitioners Lewis argue that Maxwell is just one example of why sovereign immunity should not extend to its employees.[16] However, this is the minority opinion amongst the Circuits, as no other Circuit had followed the logic behind that ruling.[17] It is also worth mentioning that in Maxwell, the claim was for gross negligence, where in this case the claim is just ordinary negligence.[18]

If the Supreme Court is to rule that employees are no longer granted sovereign immunity when acting within the scope of employment for a recognized tribe, there could be significant ramifications. Tribes would become more reluctant to hire employees, not within the tribe, and many could lose their jobs. However, if the Supreme Court is to rule that employees do maintain sovereign status, how far does this protection extend? This could then be applied to those doing business with Native Americans, and those businesses could potentially take advantage of the ruling in order to take part in deals that would be recognized by the government as illegal. If the Supreme Court is to rule that sovereign status extends to employees working for a recognized tribe, it must do so with specificity in order for this to not extend to other areas of business. Regardless of the outcome, this upcoming Supreme Court decision will have a profound effect on the extent to which Native American Sovereign Immunity extends.

[1] Lewis v. Clarke, 137 S. Ct. 31 (2016).

[2] See generally, Christine W. Young, Respondeat Superior: A Clarification and Broadening of the Current Scope of Employment Test, 30 Santa Clara L. Rev 599 (1990) (Providing a generally understanding of the traditional views of the tort law surrounding employer liability).

[3] Lewis v. Clarke, 137 S. Ct. 31 (2016).

[4] Id.

[5] Id.

[6] See, Alexander Hogan, Protecting Native American Communities by Preserving Sovereign Immunity and Determining the Place of Tribal Businesses in the Federal Bankruptcy Code, 43 Colum. Hum. Rts. L. Rev. 569, 571 (2012) (providing a background into Native America sovereign immunity).

[7] Michigan v. Bay Mills Indian Community, 134 S. Ct 2024, 2027 (2014).

[8] Lewis v. Clarke, 137 S. Ct. 31 (2016).

[9] Id.

[10] Sue Woodrow, Tribal Sovereign Immunity, An Obstacle for Non-Indians doing Business in Indian Country, Federal Reserve Bank of Minneapolis (July 1, 1998),

[11] Id.

[12] Id.

[13] Id.

[14] Maxwell v. City of San Diego, 697 F.3d 941 (9th Cir. 2012).

[15] Id. at 955.

[16] Id.

[17] Lewis v. Clarke, 137 S. Ct. 31 (2016).

[18] Id.


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