In short, the tribal interests are more likely to prevail than some commentators might want. Overall, the Supreme Court is definitely concerned about the apparent extension of tribal immunity to off-reservation acts by tribal employees but doesn’t seem likely to assert itself into this issue so long as it is characterized as a policy question, perhaps one left for Congress.

The Westfall Act as an analogy. The first question at argument, from Justice Ginsburg, implicated the Westfall Act:

They say it’s the same as if it were federal employee, then you would have the Westfall Act. If it was a state employee, you would have the same regime, and the tribe says, “And we do the same thing.” You can sue in our court just as you could sue in federal court under the Westfall Act — Connecticut court under the Connecticut Act, and you can sue in our court.

Tr. at 4. And Justice Ginsburg asked the same question of the Respondent’s counsel:

wouldn’t that have been the Connecticut law but for its Westfall Act-type — I mean, the Westfall Act changed it. Before that, it was my understanding that the employee, the driver, you could bring an individual suit against the driver. That’s what the law was under the Westfall v. Erwin decision, and then Congress changed it. But before that, you could bring an individual suit.

Id. at 31. The Act addresses suits against the tortious actions of federal employees, providing that the exclusive remedy of plaintiffs is a suit against the US. Federal employees, such as rescue personnel, are protected by this statute in order to ensure they zealously pursue their duties. If Mr. Clarke had been a police officer instead of a casino limo driver, the analogy would have been perfect for tribal interests. If the analogy held fast, then tribal immunity likely would extend easily to a tribal employee like Mr. Clarke as a matter of federal common law. But the analogy isn’t perfect, putting the Court in the position of policy maker, deciding in the shoes of tribal governments (and Congress) whether a limo driver should be protected.

Mr. Katyal’s response:

Certainly before 1959, I think that’s right. But as our brief explains, after Barr v. Mateo, lower court after lower court said the — said that official immunity extends to nondiscretionary functions. And in the Westfall decision, to be sure, Justice Ginsburg, this Court said that it was limited to discretionary functions, but Congress quickly repudiated that and said that the Court got it actually wrong and —

Id. If that’s the case, then tribal interests should breathe a sigh of relief.

Congress’s power and wisdom. In Kiowa and Bay Mills, the Supreme Court deferred to Congress’s wisdom and power under the Indian Commerce Clause and the trust relationship to address the metes and bounds of tribal immunity. Respondent’s counsel argued persuasively that Congress’s power over state immunity is constrained by the Eleventh Amendment, but no such constraint exists for tribal immunity (at least under the Constitution — don’t forget the Treaty Power or the trust relationship). 

Respondent’s counsel made the case for this question to be a policy question reserved for Congress:

MR. KATYAL: Well, I — I think the — the first point is that their argument is so sweeping it extends not just to drivers, it extends to tribal judges, it extends to tribal prosecutors, and, yes, it extends even to drivers of emergency vehicles. The Ninth Circuit and Tenth Circuit amicus brief talks about police and fire and all sorts of tribal things in which you actually would, Justice Alito, for sure, I think, want them to be fearless in saving peoples’ lives and things like that. And, yes, there are times there are rough edges to any immunity doctrine in which you can say, well, in this case how is that policy being served. I mean take this Court’s decision in Imbul v. Packman, which had the, you know, grossest facts imaginable. A — you know, a state prosecutor who’s fabricating evidence, which this Court said unanimously that that person was absolutely immune. *** And here, as long as the person is a tribal employee and as long as — is — and because the State of Connecticut does have a remedy against any sort of concerns, so if they were concerned about your situation about fearless driving, they can do — and negotiate in the compact, as New Mexico has done, for something else and say, look, we want this channeled into State court, we insist that you waive immunity, there are a host of remedies that are available to States in this circumstance and, indeed, Connecticut availed themselves of them in this compact.

Tr. at 48-49. And here:

It does matter absolutely, Justice Sotomayor, in the State context what label you put on it, because if it’s sovereign immunity, Congress can’t abrogate it, they have Eleventh Amendment protections. But that’s not true with respect to tribes; that is, Congress’s power is plenary, whether you call it official immunity or sovereign immunity. And so for that reason, we think the Court should get into it here and — and affirm what the courts have said.

Id. at 45.

Real party in interest. Tribal interests in these and related cases have been saying that the tribe is the real party in interest that will pay the actual damages in the event a tribal employee is sued in their individual capacity, thereby invoking sovereign immunity law and policy interests. Again and again, the Justices seemed nominally supportive of this proposition. Justice Alito: Continue reading →