Today’s Lewis v. Clarke: A Journey Towards Tribal Sovereign Immunity Abrogation?

By Joe Sexton

In June, personal injury plaintiffs in Lewis v. Clarke, a case arising out of Connecticut state courts, filed a petition for a writ of certiorari with the United States Supreme Court.  The petition seeks relief from an opinion of the Connecticut Supreme Court upholding tribal sovereign immunity. 

The facts in Lewis include a garden-variety personal injury tort lawsuit arising from a car accident.  But what makes the case important to Indian Country is the question posed to the Supreme Court if it decides to hear the case: whether tribal employees can be individually sued and held personally liable for torts committed within the scope of their employment. 

The plaintiffs transparently play to the four sitting Justices, who according to the 4-4 Dollar General split, disfavor tribal sovereignty, in hope that those four will call the following bluff made by Justice Elena Kagan in Bay Mills:

We have never, for example, specifically addressed (nor, so far as we are aware, has Congress) whether immunity should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct. 

The Justices now have their chance to deal with that fact pattern and, notwithstanding the bullet dodged in Bay Mills, Indian Country should be concerned.

The defendant in the case, Clarke, was a tribal employee driving a limousine for a tribal casino.  Plaintiffs, Brian and Michelle Lewis, claimed defendant rear-ended them while driving the limo.  As a result of Clarke’s alleged negligence the plaintiffs claimed injuries for which they brought suit. 

In their complaint, plaintiffs named both Clarke and the tribal government entity for which he worked, the Mohegan Tribal Gaming Authority.  Before defendant filed his motion to dismiss, however, in November 2013, plaintiffs cleverly withdrew all claims against that entity, leaving defendant Clarke as the sole defendant sued in his individual capacity, i.e., not in his official capacity as an employee of the tribal governmental entity.

Plaintiffs claimed that defendant is not entitled to the protection of tribal sovereign immunity because defendant was sued in his individual capacity, and the relief plaintiffs sought in the action was relief from defendant personally, not from his tribal employer.  The Connecticut trial court agreed and denied defendant’s motion to dismiss.  Defendant appealed and the Connecticut high court overturned the trial court’s ruling. 

The principal authority the plaintiffs relied on is the Ninth Circuit’s decision in Maxwell v. San Diego, 708 F.3d 1075 (9th Cir. 2013).  In Maxwell, family members brought a claim against paramedics employed by a tribal fire department, alleging they delayed provision of medical treatment for their family member, a shooting victim, and thus were grossly negligent. 

The Ninth Circuit concluded that, among other things, the suit was not barred by sovereign immunity because plaintiffs sued the paramedics in their individual capacities for money damages.  As such, “[a]ny damages will come from [the paramedics’] own pockets, not the tribal treasury.”  Id. at 1089.

The Connecticut Supreme Court declined to follow Maxwell in Lewis, noting one key distinguishing factor:

The fact that the allegations against the plaintiffs in Maxwell involved claims of gross negligence makes the Ninth Circuit’s holding in that case distinguishable from the present case.      

As the Connecticut Supreme Court observed, gross negligence claims are generally “deemed to be outside the scope of employment and, therefore, not subject to sovereign immunity.”[1]

As noted, the U.S. Supreme Court, perhaps with baited breath, has now been asked to review this Connecticut case.  If it grants the appellants’ petition, the Court will be set to decide whether to extend the Ninth Circuit’s decision in Maxwell nationally.

In particular, the High Court would ask and answer whether gross negligence claims, or simpler or lesser negligence claims, may be brought against tribal employees sued in their individual capacity for actions and omissions carried out in the scope of their employment—notwithstanding tribal sovereign immunity.

The brief in opposition to the petition for a writ of certiorari may be found here.  No decision from the U.S. Supreme Court on the petition has yet been issued. 

If the Supreme Court decides to hear the case, the consequences for Indian Country could be far-reaching.  At least four Justices may be poised to subject tribal employees across the country to lawsuits in which damages are sought against them personally, based on claims of mere negligence for their actions taken during the course of their employment.

The latest Lewis v. Clarke journey, this time towards the U.S. Supreme Court, is a situation Indian Country jurists will want to keep on their radar. 

Joe Sexton is Of Counsel with Galanda Broadman, PLLC.  Joe’s practice focuses on tribal sovereignty issues, including complex land and environmental issues, and economic development matters.  He can be reached at (509) 910-8842 and

[1] Citing Gedrich v. Dept. of Family Services, 282 F. Supp. 2d 439, 474–75 (E.D. Va. 2003); and Young v. Mount Ranier, 238 F.3d 567, 578 (4th Cir. 2001).