26
Fla. L. Weekly Fed. S549aTop of Form
Fla. L. Weekly Fed. S549aTop of Form
Torts
— Negligence — Automobile accident — Sovereign immunity — Indian tribes —
In an ordinary negligence action brought against a tribal employee in his
individual capacity, the employee, not the tribe, is the real party in interest
and the tribe’s sovereign immunity is not implicated — That an employee was
acting within scope of his employment at time the tort was committed is not, on
its own, sufficient to bar a suit against that employee on basis of tribal
sovereign immunity — An indemnification provision cannot, as a matter of law,
extend sovereign immunity to individual employees who would otherwise not fall
under its protective cloak
— Negligence — Automobile accident — Sovereign immunity — Indian tribes —
In an ordinary negligence action brought against a tribal employee in his
individual capacity, the employee, not the tribe, is the real party in interest
and the tribe’s sovereign immunity is not implicated — That an employee was
acting within scope of his employment at time the tort was committed is not, on
its own, sufficient to bar a suit against that employee on basis of tribal
sovereign immunity — An indemnification provision cannot, as a matter of law,
extend sovereign immunity to individual employees who would otherwise not fall
under its protective cloak
BRIAN LEWIS, et al., Petitioners v.
WILLIAM CLARKE. U.S. Supreme Court. Case No. 15-1500. Argued January 9, 2017 —
Decided April 25, 2017. On Writ of Certiorari to the Supreme Court of Connecticut.
WILLIAM CLARKE. U.S. Supreme Court. Case No. 15-1500. Argued January 9, 2017 —
Decided April 25, 2017. On Writ of Certiorari to the Supreme Court of Connecticut.
Syllabus
Petitioners Brian and Michelle Lewis were driving on a
Connecticut interstate when they were struck from behind by a vehicle driven by
respondent William Clarke, a Mohegan Tribal Gaming Authority employee, who was
transporting Mohegan Sun Casino patrons. The Lewises sued Clarke in his
individual capacity in state court. Clarke moved to dismiss for lack of
subject-matter jurisdiction, arguing that because he was an employee of the
Gaming Authority — an arm of the Mohegan Tribe entitled to sovereign immunity
— and was acting within the scope of his employment at the time of the
accident, he was similarly entitled to sovereign immunity against suit. He also
argued, in the alternative, that he should prevail because the Gaming Authority
was bound by tribal law to indemnify him. The trial court denied Clarke’s
motion, but the Supreme Court of Connecticut reversed, holding that tribal
sovereign immunity barred the suit because Clarke was acting within the scope
of his employment when the accident occurred. It did not consider whether
Clarke should be entitled to sovereign immunity based on the indemnification
statute.
Connecticut interstate when they were struck from behind by a vehicle driven by
respondent William Clarke, a Mohegan Tribal Gaming Authority employee, who was
transporting Mohegan Sun Casino patrons. The Lewises sued Clarke in his
individual capacity in state court. Clarke moved to dismiss for lack of
subject-matter jurisdiction, arguing that because he was an employee of the
Gaming Authority — an arm of the Mohegan Tribe entitled to sovereign immunity
— and was acting within the scope of his employment at the time of the
accident, he was similarly entitled to sovereign immunity against suit. He also
argued, in the alternative, that he should prevail because the Gaming Authority
was bound by tribal law to indemnify him. The trial court denied Clarke’s
motion, but the Supreme Court of Connecticut reversed, holding that tribal
sovereign immunity barred the suit because Clarke was acting within the scope
of his employment when the accident occurred. It did not consider whether
Clarke should be entitled to sovereign immunity based on the indemnification
statute.
Held:
1. In a suit brought against a tribal employee in his
individual capacity, the employee, not the tribe, is the real party in interest
and the tribe’s sovereign immunity is not implicated. Pp. 5-8.
individual capacity, the employee, not the tribe, is the real party in interest
and the tribe’s sovereign immunity is not implicated. Pp. 5-8.
(a) In the context of lawsuits against state and federal employees
or entities, courts look to whether the sovereign is the real party in interest
to determine whether sovereign immunity bars the suit, see Hafer v. Melo,
502 U.S. 21, 25. A defendant in an official-capacity action — where the relief
sought is only nominally against the official and in fact is against the
official’s office and thus the sovereign itself — may assert sovereign
immunity. Kentucky v. Graham, 473 U.S. 159, 167. But an officer
in an individual-capacity action — which seeks “to impose individual liability
upon a government officer for actions taken under color of state law,” Hafer,
502 U.S., at 25 — may be able to assert personal immunity defenses but
not sovereign immunity, id., at 30-31. The Court does not reach Clarke’s
argument that he is entitled to the personal immunity defense of official
immunity, which Clarke raised for the first time on appeal. Pp. 5-7.
or entities, courts look to whether the sovereign is the real party in interest
to determine whether sovereign immunity bars the suit, see Hafer v. Melo,
502 U.S. 21, 25. A defendant in an official-capacity action — where the relief
sought is only nominally against the official and in fact is against the
official’s office and thus the sovereign itself — may assert sovereign
immunity. Kentucky v. Graham, 473 U.S. 159, 167. But an officer
in an individual-capacity action — which seeks “to impose individual liability
upon a government officer for actions taken under color of state law,” Hafer,
502 U.S., at 25 — may be able to assert personal immunity defenses but
not sovereign immunity, id., at 30-31. The Court does not reach Clarke’s
argument that he is entitled to the personal immunity defense of official
immunity, which Clarke raised for the first time on appeal. Pp. 5-7.
(b) Applying these general rules in the context of tribal
sovereign immunity, it is apparent that they foreclose Clarke’s sovereign
immunity defense. This action arises from a tort committed by Clarke on a
Connecticut interstate and is simply a suit against Clarke to recover for his
personal actions. Clarke, not the Gaming Authority, is the real party in
interest. The State Supreme Court extended sovereign immunity for tribal
employees beyond what common-law sovereign immunity principles would recognize
for either state or federal employees. Pp. 7-8.
sovereign immunity, it is apparent that they foreclose Clarke’s sovereign
immunity defense. This action arises from a tort committed by Clarke on a
Connecticut interstate and is simply a suit against Clarke to recover for his
personal actions. Clarke, not the Gaming Authority, is the real party in
interest. The State Supreme Court extended sovereign immunity for tribal
employees beyond what common-law sovereign immunity principles would recognize
for either state or federal employees. Pp. 7-8.
2. An indemnification provision cannot, as a matter of law,
extend sovereign immunity to individual employees who would otherwise not fall
under its protective cloak. Pp. 8-12.
extend sovereign immunity to individual employees who would otherwise not fall
under its protective cloak. Pp. 8-12.
(a) This conclusion follows naturally from the principles
discussed above and previously applied to the different question whether a
state instrumentality may invoke the State’s immunity from suit even when the
Federal Government has agreed to indemnify that instrumentality against adverse
judgments, Regents of Univ. of Cal. v. Doe, 519 U.S. 425. There,
this Court held that the indemnification provision did not divest the state
instrumentality of Eleventh Amendment immunity, and its analysis turned on
where the potential legal liability lay, not from whence the money to
pay the damages award ultimately came. Here, the Connecticut courts exercise no
jurisdiction over the Tribe or Gaming Authority, and their judgments will not
bind the Tribe or its instrumentalities in any way. Moreover, indemnification
is not a certainty, because Clarke will not be indemnified should the Gaming
Authority determine that he engaged in “wanton, reckless, or malicious”
activity. Mohegan Tribe Code §4-52. Pp. 8-10.
discussed above and previously applied to the different question whether a
state instrumentality may invoke the State’s immunity from suit even when the
Federal Government has agreed to indemnify that instrumentality against adverse
judgments, Regents of Univ. of Cal. v. Doe, 519 U.S. 425. There,
this Court held that the indemnification provision did not divest the state
instrumentality of Eleventh Amendment immunity, and its analysis turned on
where the potential legal liability lay, not from whence the money to
pay the damages award ultimately came. Here, the Connecticut courts exercise no
jurisdiction over the Tribe or Gaming Authority, and their judgments will not
bind the Tribe or its instrumentalities in any way. Moreover, indemnification
is not a certainty, because Clarke will not be indemnified should the Gaming
Authority determine that he engaged in “wanton, reckless, or malicious”
activity. Mohegan Tribe Code §4-52. Pp. 8-10.
(b) Courts have extended sovereign immunity to private
healthcare insurance companies under certain circumstances, but those cases
rest on the proposition that the fiscal intermediaries are essentially state
instrumentalities, and Clarke offers no persuasive reason to depart from
precedent and treat a lawsuit against an individual employee as one against a
state instrumentality. Similarly, this Court has never held that a civil rights
suit under 42 U.S.C. §1983 against a state officer in his individual capacity
implicates the Eleventh Amendment and a State’s sovereign immunity from suit.
Finally, this Court’s conclusion that indemnification provisions do not alter
the real-party-in-interest analysis for sovereign immunity purposes is
consistent with the practice that applies in the contexts of diversity of
citizenship and joinder. Pp. 10-12.
healthcare insurance companies under certain circumstances, but those cases
rest on the proposition that the fiscal intermediaries are essentially state
instrumentalities, and Clarke offers no persuasive reason to depart from
precedent and treat a lawsuit against an individual employee as one against a
state instrumentality. Similarly, this Court has never held that a civil rights
suit under 42 U.S.C. §1983 against a state officer in his individual capacity
implicates the Eleventh Amendment and a State’s sovereign immunity from suit.
Finally, this Court’s conclusion that indemnification provisions do not alter
the real-party-in-interest analysis for sovereign immunity purposes is
consistent with the practice that applies in the contexts of diversity of
citizenship and joinder. Pp. 10-12.
320 Conn.706, 135 A. 3d 677,
reversed and remanded.
reversed and remanded.
SOTOMAYOR, J., delivered the opinion
of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, ALITO, and KAGAN,
JJ., joined. THOMAS, J., and GINSBURG, J., filed opinions concurring in the
judgment. GORSUCH, J., took no part in the consideration or decision of the
case.
of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, ALITO, and KAGAN,
JJ., joined. THOMAS, J., and GINSBURG, J., filed opinions concurring in the
judgment. GORSUCH, J., took no part in the consideration or decision of the
case.
__________________
JUSTICE SOTOMAYOR delivered the
opinion of the Court.
opinion of the Court.
Indian tribes are generally entitled
to immunity from suit. This Court has considered the scope of that immunity in
a number of circumstances. This case presents an ordinary negligence action
brought against a tribal employee in state court under state law. We granted
certiorari to resolve whether an Indian tribe’s sovereign immunity bars
individual-capacity damages actions against tribal employees for torts
committed within the scope of their employment and for which the employees are
indemnified by the tribe.
to immunity from suit. This Court has considered the scope of that immunity in
a number of circumstances. This case presents an ordinary negligence action
brought against a tribal employee in state court under state law. We granted
certiorari to resolve whether an Indian tribe’s sovereign immunity bars
individual-capacity damages actions against tribal employees for torts
committed within the scope of their employment and for which the employees are
indemnified by the tribe.
We hold that, in a suit brought
against a tribal employee in his individual capacity, the employee, not the
tribe, is the real party in interest and the tribe’s sovereign immunity is not
implicated. That an employee was acting within the scope of his employment at
the time the tort was committed is not, on its own, sufficient to bar a suit
against that employee on the basis of tribal sovereign immunity. We hold
further that an indemnification provision does not extend a tribe’s sovereign
immunity where it otherwise would not reach. Accordingly, we reverse and
remand.
against a tribal employee in his individual capacity, the employee, not the
tribe, is the real party in interest and the tribe’s sovereign immunity is not
implicated. That an employee was acting within the scope of his employment at
the time the tort was committed is not, on its own, sufficient to bar a suit
against that employee on the basis of tribal sovereign immunity. We hold
further that an indemnification provision does not extend a tribe’s sovereign
immunity where it otherwise would not reach. Accordingly, we reverse and
remand.
I
A
The Mohegan Tribe of Indians of
Connecticut traces its lineage back centuries. Originally part of the Lenni
Lenape, the Tribe formed the independent Mohegan Tribe under the leadership of
Sachem Uncas in the early 1600’s. M. Fawcett, The Lasting of the Mohegans 7,
11-13 (1995). In 1994, in accordance with the petition procedures established
by the Bureau of Indian Affairs, the Tribe attained federal recognition.1 See 59 Fed. Reg. 12140 (1994);
Mohegan Const., Preamble and Art. II.
Connecticut traces its lineage back centuries. Originally part of the Lenni
Lenape, the Tribe formed the independent Mohegan Tribe under the leadership of
Sachem Uncas in the early 1600’s. M. Fawcett, The Lasting of the Mohegans 7,
11-13 (1995). In 1994, in accordance with the petition procedures established
by the Bureau of Indian Affairs, the Tribe attained federal recognition.1 See 59 Fed. Reg. 12140 (1994);
Mohegan Const., Preamble and Art. II.
As one means of maintaining its
economic self-sufficiency, the Tribe entered into a Gaming Compact with the
State of Connecticut pursuant to the Indian Gaming Regulatory Act, 102 Stat.
2467, 25 U.S.C. §2701 et seq. The compact authorizes the Tribe to
conduct gaming on its land, subject to certain conditions including
establishment of the Gaming Disputes Court. See 59 Fed. Reg. 65130 (approving
the Tribal-State Compact Between the Mohegan Indian Tribe and the State of
Connecticut (May 17, 1994)); Mohegan Const., Art. XIII, §2; Mohegan Tribe Code
3-248(a) (Supp. 2016). The Mohegan Tribal Gaming Authority, an arm of the
Tribe, exercises the powers of the Mohegan Tribe over tribal gaming activities.
Mohegan Const., Art. XIII, §1; Mohegan Tribe Code §2-21.
economic self-sufficiency, the Tribe entered into a Gaming Compact with the
State of Connecticut pursuant to the Indian Gaming Regulatory Act, 102 Stat.
2467, 25 U.S.C. §2701 et seq. The compact authorizes the Tribe to
conduct gaming on its land, subject to certain conditions including
establishment of the Gaming Disputes Court. See 59 Fed. Reg. 65130 (approving
the Tribal-State Compact Between the Mohegan Indian Tribe and the State of
Connecticut (May 17, 1994)); Mohegan Const., Art. XIII, §2; Mohegan Tribe Code
3-248(a) (Supp. 2016). The Mohegan Tribal Gaming Authority, an arm of the
Tribe, exercises the powers of the Mohegan Tribe over tribal gaming activities.
Mohegan Const., Art. XIII, §1; Mohegan Tribe Code §2-21.
Of particular relevance here, Mohegan
law sets out sovereign immunity and indemnification policies applicable to
disputes arising from gaming activities. The Gaming Authority has waived its
sovereign immunity and consented to be sued in the Mohegan Gaming Disputes
Court. Mohegan Const., Art. XIII, §1; Mohegan Tribe Code §3-250(b). Neither the
Tribe nor the Gaming Authority has consented to suit for claims arising under
Connecticut state law. See Mohegan Const., Art. IX, §2(t); Mohegan Tribe Code
§3-250(g); see also Blatchford v. Native Village of Noatak, 501
U.S. 775, 782 (1991) (observing that Indian tribes have not surrendered their
immunity against suits by States). Further, Mohegan Tribe Code §4-52 provides
that the Gaming Authority “shall save harmless and indemnify its Officer or
Employee from financial loss and expense arising out of any claim, demand, or
suit by reason of his or her alleged negligence . . . if the Officer or
Employee is found to have been acting in the discharge of his or her duties or
within the scope of his or her employment.” The Gaming Authority does not
indemnify employees who engage in “wanton, reckless or malicious” activity.
Mohegan Tribe Code §4-52.
law sets out sovereign immunity and indemnification policies applicable to
disputes arising from gaming activities. The Gaming Authority has waived its
sovereign immunity and consented to be sued in the Mohegan Gaming Disputes
Court. Mohegan Const., Art. XIII, §1; Mohegan Tribe Code §3-250(b). Neither the
Tribe nor the Gaming Authority has consented to suit for claims arising under
Connecticut state law. See Mohegan Const., Art. IX, §2(t); Mohegan Tribe Code
§3-250(g); see also Blatchford v. Native Village of Noatak, 501
U.S. 775, 782 (1991) (observing that Indian tribes have not surrendered their
immunity against suits by States). Further, Mohegan Tribe Code §4-52 provides
that the Gaming Authority “shall save harmless and indemnify its Officer or
Employee from financial loss and expense arising out of any claim, demand, or
suit by reason of his or her alleged negligence . . . if the Officer or
Employee is found to have been acting in the discharge of his or her duties or
within the scope of his or her employment.” The Gaming Authority does not
indemnify employees who engage in “wanton, reckless or malicious” activity.
Mohegan Tribe Code §4-52.
B
Petitioners Brian and Michelle Lewis
were driving down Interstate 95 in Norwalk, Connecticut, when a limousine
driven by respondent William Clarke hit their vehicle from behind. Clarke, a
Gaming Authority employee, was transporting patrons of the Mohegan Sun Casino
to their homes. For purposes of this appeal, it is undisputed that Clarke
caused the accident.
were driving down Interstate 95 in Norwalk, Connecticut, when a limousine
driven by respondent William Clarke hit their vehicle from behind. Clarke, a
Gaming Authority employee, was transporting patrons of the Mohegan Sun Casino
to their homes. For purposes of this appeal, it is undisputed that Clarke
caused the accident.
The Lewises filed suit against
Clarke in his individual capacity in Connecticut state court, and Clarke moved
to dismiss for lack of subject-matter jurisdiction on the basis of tribal
sovereign immunity. See 2014 WL 5354956, *2 (Super. Ct. Conn., Sept. 10, 2014)
(Cole-Chu, J.). Clarke argued that because the Gaming Authority, an arm of the
Tribe, was entitled to sovereign immunity, he, an employee of the Gaming
Authority acting within the scope of his employment at the time of the
accident, was similarly entitled to sovereign immunity against suit. According
to Clarke, denying the motion would abrogate the Tribe’s sovereign immunity.
Clarke in his individual capacity in Connecticut state court, and Clarke moved
to dismiss for lack of subject-matter jurisdiction on the basis of tribal
sovereign immunity. See 2014 WL 5354956, *2 (Super. Ct. Conn., Sept. 10, 2014)
(Cole-Chu, J.). Clarke argued that because the Gaming Authority, an arm of the
Tribe, was entitled to sovereign immunity, he, an employee of the Gaming
Authority acting within the scope of his employment at the time of the
accident, was similarly entitled to sovereign immunity against suit. According
to Clarke, denying the motion would abrogate the Tribe’s sovereign immunity.
The trial court denied Clarke’s
motion to dismiss. Id., at *8. The court agreed with the Lewises that
the sovereign immunity analysis should focus on the remedy sought in their
complaint. To that end, the court identified Clarke, not the Gaming Authority
or the Tribe, as the real party in interest because the damages remedy sought
was solely against Clarke and would in no way affect the Tribe’s ability to
govern itself independently. The court therefore concluded that tribal
sovereign immunity was not implicated. Id., at *2-*8. It also rejected
Clarke’s alternative argument that because the Gaming Authority was obligated
to indemnify him pursuant to Mohegan Tribe Code §4-52 and would end up paying
the damages, he should prevail under the remedy analysis. Id., at *7.
The trial court reasoned that a “voluntary undertaking cannot be used to extend
sovereign immunity where it did not otherwise exist.” Ibid.
motion to dismiss. Id., at *8. The court agreed with the Lewises that
the sovereign immunity analysis should focus on the remedy sought in their
complaint. To that end, the court identified Clarke, not the Gaming Authority
or the Tribe, as the real party in interest because the damages remedy sought
was solely against Clarke and would in no way affect the Tribe’s ability to
govern itself independently. The court therefore concluded that tribal
sovereign immunity was not implicated. Id., at *2-*8. It also rejected
Clarke’s alternative argument that because the Gaming Authority was obligated
to indemnify him pursuant to Mohegan Tribe Code §4-52 and would end up paying
the damages, he should prevail under the remedy analysis. Id., at *7.
The trial court reasoned that a “voluntary undertaking cannot be used to extend
sovereign immunity where it did not otherwise exist.” Ibid.
The Supreme Court of Connecticut
reversed, holding that tribal sovereign immunity did bar the suit. 320 Conn.
706, 135 A. 3d 677 (2016). The court agreed with Clarke that “because he was
acting within the scope of his employment for the Mohegan Tribal Gaming
Authority and the Mohegan Tribal Gaming Authority is an arm of the Mohegan
Tribe, tribal sovereign immunity bars the plaintiffs’ claims against him.” Id.,
at 709, 135 A. 3d, at 680. Of particular significance to the court was ensuring
that “plaintiffs cannot circumvent tribal immunity by merely naming the
defendant, an employee of the tribe, when the complaint concerns actions taken
within the scope of his duties and the complaint does not allege, nor have the
plaintiffs offered any other evidence, that he acted outside the scope of his
authority.” Id., at 720, 135 A. 3d, at 685. To do otherwise, the court
reasoned, would “ ‘eviscerate’ ” the protections of tribal immunity. Id., at
717, 135 A. 3d, at 684 (alterations and internal quotation marks omitted).
Because the court determined that Clarke was entitled to sovereign immunity on
the sole basis that he was acting within the scope of his employment when the
accident occurred, id., at 720, 135 A. 3d, at 685-686, it did not consider
whether Clarke should be entitled to sovereign immunity on the basis of the
indemnification statute.
reversed, holding that tribal sovereign immunity did bar the suit. 320 Conn.
706, 135 A. 3d 677 (2016). The court agreed with Clarke that “because he was
acting within the scope of his employment for the Mohegan Tribal Gaming
Authority and the Mohegan Tribal Gaming Authority is an arm of the Mohegan
Tribe, tribal sovereign immunity bars the plaintiffs’ claims against him.” Id.,
at 709, 135 A. 3d, at 680. Of particular significance to the court was ensuring
that “plaintiffs cannot circumvent tribal immunity by merely naming the
defendant, an employee of the tribe, when the complaint concerns actions taken
within the scope of his duties and the complaint does not allege, nor have the
plaintiffs offered any other evidence, that he acted outside the scope of his
authority.” Id., at 720, 135 A. 3d, at 685. To do otherwise, the court
reasoned, would “ ‘eviscerate’ ” the protections of tribal immunity. Id., at
717, 135 A. 3d, at 684 (alterations and internal quotation marks omitted).
Because the court determined that Clarke was entitled to sovereign immunity on
the sole basis that he was acting within the scope of his employment when the
accident occurred, id., at 720, 135 A. 3d, at 685-686, it did not consider
whether Clarke should be entitled to sovereign immunity on the basis of the
indemnification statute.
We granted certiorari to consider
whether tribal sovereign immunity bars the Lewises’ suit against Clarke, 579
U.S. ___ (2016), and we now reverse the judgment of the Supreme Court of
Connecticut.
whether tribal sovereign immunity bars the Lewises’ suit against Clarke, 579
U.S. ___ (2016), and we now reverse the judgment of the Supreme Court of
Connecticut.
II
Two issues require our resolution:
(1) whether the sovereign immunity of an Indian tribe bars individual-capacity
damages against tribal employees for torts committed within the scope of their
employment; and (2) what role, if any, a tribe’s decision to indemnify its
employees plays in this analysis. We decide this case under the framework of
our precedents regarding tribal immunity.
(1) whether the sovereign immunity of an Indian tribe bars individual-capacity
damages against tribal employees for torts committed within the scope of their
employment; and (2) what role, if any, a tribe’s decision to indemnify its
employees plays in this analysis. We decide this case under the framework of
our precedents regarding tribal immunity.
A
Our cases establish that, in the
context of lawsuits against state and federal employees or entities, courts
should look to whether the sovereign is the real party in interest to determine
whether sovereign immunity bars the suit. See Hafer v. Melo, 502
U.S. 21, 25 (1991). In making this assessment, courts may not simply rely on
the characterization of the parties in the complaint, but rather must determine
in the first instance whether the remedy sought is truly against the sovereign.
See, e.g., Ex parte New York, 256 U.S. 490, 500-502 (1921). If, for
example, an action is in essence against a State even if the State is not a
named party, then the State is the real party in interest and is entitled to
invoke the Eleventh Amendment’s protection. For this reason, an arm or
instrumentality of the State generally enjoys the same immunity as the
sovereign itself. E.g., Regents of Univ. of Cal. v. Doe, 519 U.S.
425, 429-430 (1997). Similarly, lawsuits brought against employees in their
official capacity “represent only another way of pleading an action against an
entity of which an officer is an agent,” and they may also be barred by
sovereign immunity. Kentucky v. Graham, 473 U.S. 159, 165-166
(1985) (internal quotation marks omitted).
context of lawsuits against state and federal employees or entities, courts
should look to whether the sovereign is the real party in interest to determine
whether sovereign immunity bars the suit. See Hafer v. Melo, 502
U.S. 21, 25 (1991). In making this assessment, courts may not simply rely on
the characterization of the parties in the complaint, but rather must determine
in the first instance whether the remedy sought is truly against the sovereign.
See, e.g., Ex parte New York, 256 U.S. 490, 500-502 (1921). If, for
example, an action is in essence against a State even if the State is not a
named party, then the State is the real party in interest and is entitled to
invoke the Eleventh Amendment’s protection. For this reason, an arm or
instrumentality of the State generally enjoys the same immunity as the
sovereign itself. E.g., Regents of Univ. of Cal. v. Doe, 519 U.S.
425, 429-430 (1997). Similarly, lawsuits brought against employees in their
official capacity “represent only another way of pleading an action against an
entity of which an officer is an agent,” and they may also be barred by
sovereign immunity. Kentucky v. Graham, 473 U.S. 159, 165-166
(1985) (internal quotation marks omitted).
The distinction between individual-
and official-capacity suits is paramount here. In an official-capacity claim,
the relief sought is only nominally against the official and in fact is against
the official’s office and thus the sovereign itself. Will v. Michigan
Dept. of State Police, 491 U.S. 58, 71 (1989); Dugan v. Rank,
372 U.S. 609, 611, 620-622 (1963). This is why, when officials sued in their
official capacities leave office, their successors automatically assume their
role in the litigation. Hafer, 502 U.S., at 25. The real party in
interest is the government entity, not the named official. See Edelman v.
Jordan, 415 U.S. 651, 663-665 (1974). “Personal-capacity suits, on the
other hand, seek to impose individual liability upon a government
officer for actions taken under color of state law.” Hafer, 502 U.S., at
25 (emphasis added); see also id., at 27-31 (discharged employees
entitled to bring personal damages action against state auditor general); cf. Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
“[O]fficers sued in their personal capacity come to court as individuals,” Hafer,
502 U.S., at 27, and the real party in interest is the individual, not the
sovereign.
and official-capacity suits is paramount here. In an official-capacity claim,
the relief sought is only nominally against the official and in fact is against
the official’s office and thus the sovereign itself. Will v. Michigan
Dept. of State Police, 491 U.S. 58, 71 (1989); Dugan v. Rank,
372 U.S. 609, 611, 620-622 (1963). This is why, when officials sued in their
official capacities leave office, their successors automatically assume their
role in the litigation. Hafer, 502 U.S., at 25. The real party in
interest is the government entity, not the named official. See Edelman v.
Jordan, 415 U.S. 651, 663-665 (1974). “Personal-capacity suits, on the
other hand, seek to impose individual liability upon a government
officer for actions taken under color of state law.” Hafer, 502 U.S., at
25 (emphasis added); see also id., at 27-31 (discharged employees
entitled to bring personal damages action against state auditor general); cf. Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
“[O]fficers sued in their personal capacity come to court as individuals,” Hafer,
502 U.S., at 27, and the real party in interest is the individual, not the
sovereign.
The identity of the real party in
interest dictates what immunities may be available. Defendants in an
official-capacity action may assert sovereign immunity. Graham, 473
U.S., at 167. An officer in an individual-capacity action, on the other hand,
may be able to assert personal immunity defenses, such as, for example,
absolute prosecutorial immunity in certain circumstances. Van de Kamp v.
Goldstein, 555 U.S. 335, 342-344 (2009) [21 Fla. L. Weekly Fed. S612a].
But sovereign immunity “does not erect a barrier against suits to impose
individual and personal liability.” Hafer, 502 U.S., at 30-31 (internal
quotation marks omitted); see Alden v. Maine, 527 U.S. 706, 757
(1996).
interest dictates what immunities may be available. Defendants in an
official-capacity action may assert sovereign immunity. Graham, 473
U.S., at 167. An officer in an individual-capacity action, on the other hand,
may be able to assert personal immunity defenses, such as, for example,
absolute prosecutorial immunity in certain circumstances. Van de Kamp v.
Goldstein, 555 U.S. 335, 342-344 (2009) [21 Fla. L. Weekly Fed. S612a].
But sovereign immunity “does not erect a barrier against suits to impose
individual and personal liability.” Hafer, 502 U.S., at 30-31 (internal
quotation marks omitted); see Alden v. Maine, 527 U.S. 706, 757
(1996).
B
There is no reason to depart from
these general rules in the context of tribal sovereign immunity. It is apparent
that these general principles foreclose Clarke’s sovereign immunity defense in
this case. This is a negligence action arising from a tort committed by Clarke
on an interstate highway within the State of Connecticut. The suit is brought
against a tribal employee operating a vehicle within the scope of his
employment but on state lands, and the judgment will not operate against the
Tribe. This is not a suit against Clarke in his official capacity. It is simply
a suit against Clarke to recover for his personal actions, which “will not
require action by the sovereign or disturb the sovereign’s property.” Larson
v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 687 (1949). We
are cognizant of the Supreme Court of Connecticut’s concern that plaintiffs not
circumvent tribal sovereign immunity. But here, that immunity is simply not in
play. Clarke, not the Gaming Authority, is the real party in interest.
these general rules in the context of tribal sovereign immunity. It is apparent
that these general principles foreclose Clarke’s sovereign immunity defense in
this case. This is a negligence action arising from a tort committed by Clarke
on an interstate highway within the State of Connecticut. The suit is brought
against a tribal employee operating a vehicle within the scope of his
employment but on state lands, and the judgment will not operate against the
Tribe. This is not a suit against Clarke in his official capacity. It is simply
a suit against Clarke to recover for his personal actions, which “will not
require action by the sovereign or disturb the sovereign’s property.” Larson
v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 687 (1949). We
are cognizant of the Supreme Court of Connecticut’s concern that plaintiffs not
circumvent tribal sovereign immunity. But here, that immunity is simply not in
play. Clarke, not the Gaming Authority, is the real party in interest.
In ruling that Clarke was immune
from this suit solely because he was acting within the scope of his employment,
the court extended sovereign immunity for tribal employees beyond what
common-law sovereign immunity principles would recognize for either state or
federal employees. See, e.g., Graham, 473 U.S., at 167-168. The
protection offered by tribal sovereign immunity here is no broader than the
protection offered by state or federal sovereign immunity.
from this suit solely because he was acting within the scope of his employment,
the court extended sovereign immunity for tribal employees beyond what
common-law sovereign immunity principles would recognize for either state or
federal employees. See, e.g., Graham, 473 U.S., at 167-168. The
protection offered by tribal sovereign immunity here is no broader than the
protection offered by state or federal sovereign immunity.
Accordingly, under established
sovereign immunity principles, the Gaming Authority’s immunity does not, in
these circumstances, bar suit against Clarke.2
sovereign immunity principles, the Gaming Authority’s immunity does not, in
these circumstances, bar suit against Clarke.2
III
The conclusion above
notwithstanding, Clarke argues that the Gaming Authority is the real
party in interest here because it is required by Mohegan Tribe Code §4-52 to
indemnify Clarke for any adverse judgment.3
notwithstanding, Clarke argues that the Gaming Authority is the real
party in interest here because it is required by Mohegan Tribe Code §4-52 to
indemnify Clarke for any adverse judgment.3
A
We have never before had occasion to
decide whether an indemnification clause is sufficient to extend a sovereign
immunity defense to a suit against an employee in his individual capacity. We
hold that an indemnification provision cannot, as a matter of law, extend
sovereign immunity to individual employees who would otherwise not fall under
its protective cloak.
decide whether an indemnification clause is sufficient to extend a sovereign
immunity defense to a suit against an employee in his individual capacity. We
hold that an indemnification provision cannot, as a matter of law, extend
sovereign immunity to individual employees who would otherwise not fall under
its protective cloak.
Our holding follows naturally from
the principles discussed above. Indeed, we have applied these same principles
to a different question before — whether a state instrumentality may invoke
the State’s immunity from suit even when the Federal Government has agreed to
indemnify that instrumentality against adverse judgments. In Regents of
Univ. of Cal., an individual brought suit against the University of
California, a public university of the State of California, for breach of
contract related to his employment at a laboratory operated by the university
pursuant to a contract with the Federal Government. We held that the
indemnification provision did not divest the state instrumentality of Eleventh
Amendment immunity. 519 U.S., at 426. Our analysis turned on where the
potential legal liability lay, not from whence the money to pay the
damages award ultimately came. Because the lawsuit bound the university, we
held, the Eleventh Amendment applied to the litigation even though the damages
award would ultimately be paid by the federal Department of Energy. Id., at
429-431. Our reasoning remains the same. The critical inquiry is who may be
legally bound by the court’s adverse judgment, not who will ultimately pick up
the tab.4
the principles discussed above. Indeed, we have applied these same principles
to a different question before — whether a state instrumentality may invoke
the State’s immunity from suit even when the Federal Government has agreed to
indemnify that instrumentality against adverse judgments. In Regents of
Univ. of Cal., an individual brought suit against the University of
California, a public university of the State of California, for breach of
contract related to his employment at a laboratory operated by the university
pursuant to a contract with the Federal Government. We held that the
indemnification provision did not divest the state instrumentality of Eleventh
Amendment immunity. 519 U.S., at 426. Our analysis turned on where the
potential legal liability lay, not from whence the money to pay the
damages award ultimately came. Because the lawsuit bound the university, we
held, the Eleventh Amendment applied to the litigation even though the damages
award would ultimately be paid by the federal Department of Energy. Id., at
429-431. Our reasoning remains the same. The critical inquiry is who may be
legally bound by the court’s adverse judgment, not who will ultimately pick up
the tab.4
Here, the Connecticut courts
exercise no jurisdiction over the Tribe or the Gaming Authority, and their
judgments will not bind the Tribe or its instrumentalities in any way. The
Tribe’s indemnification provision does not somehow convert the suit against
Clarke into a suit against the sovereign; when Clarke is sued in his individual
capacity, he is held responsible only for his individual wrongdoing. Moreover,
indemnification is not a certainty here. Clarke will not be indemnified by the
Gaming Authority should it determine that he engaged in “wanton, reckless, or
malicious” activity. Mohegan Tribe Code §4-52. That determination is not
necessary to the disposition of the Lewises’ suit against Clarke in the
Connecticut state courts, which is a separate legal matter.
exercise no jurisdiction over the Tribe or the Gaming Authority, and their
judgments will not bind the Tribe or its instrumentalities in any way. The
Tribe’s indemnification provision does not somehow convert the suit against
Clarke into a suit against the sovereign; when Clarke is sued in his individual
capacity, he is held responsible only for his individual wrongdoing. Moreover,
indemnification is not a certainty here. Clarke will not be indemnified by the
Gaming Authority should it determine that he engaged in “wanton, reckless, or
malicious” activity. Mohegan Tribe Code §4-52. That determination is not
necessary to the disposition of the Lewises’ suit against Clarke in the
Connecticut state courts, which is a separate legal matter.
B
Clarke notes that courts have
extended sovereign immunity to private healthcare insurance companies under
certain circumstances. See, e.g., Pani v. Empire Blue Cross Blue
Shield, 152 F. 3d 67, 71-72 (CA2 1998); Pine View Gardens, Inc. v. Mutual
of Omaha Ins. Co., 485 F. 2d 1073, 1074-1075 (CADC 1973); Brief for
Respondent 19, n. 4. But, these cases rest on the proposition that the fiscal
intermediaries are essentially state instrumentalities, as the governing
regulations make clear. See 42 CFR §421.5(b) (2016) (providing that the
Medicare Administrator “is the real party of interest in any litigation
involving the administration of the program”). It is well established in our
precedent that a suit against an arm or instrumentality of the State is treated
as one against the State itself. See Regents of Univ. of Cal., 519 U.S.,
at 429. We have not before treated a lawsuit against an individual employee as
one against a state instrumentality, and Clarke offers no persuasive reason to
do so now.
extended sovereign immunity to private healthcare insurance companies under
certain circumstances. See, e.g., Pani v. Empire Blue Cross Blue
Shield, 152 F. 3d 67, 71-72 (CA2 1998); Pine View Gardens, Inc. v. Mutual
of Omaha Ins. Co., 485 F. 2d 1073, 1074-1075 (CADC 1973); Brief for
Respondent 19, n. 4. But, these cases rest on the proposition that the fiscal
intermediaries are essentially state instrumentalities, as the governing
regulations make clear. See 42 CFR §421.5(b) (2016) (providing that the
Medicare Administrator “is the real party of interest in any litigation
involving the administration of the program”). It is well established in our
precedent that a suit against an arm or instrumentality of the State is treated
as one against the State itself. See Regents of Univ. of Cal., 519 U.S.,
at 429. We have not before treated a lawsuit against an individual employee as
one against a state instrumentality, and Clarke offers no persuasive reason to
do so now.
Nor have we ever held that a civil
rights suit under 42 U.S.C. §1983 against a state officer in his individual
capacity implicates the Eleventh Amendment and a State’s sovereign immunity
from suit.5 Federal appellate courts that have
considered the indemnity question have rejected the argument that an indemnity
statute brings the Eleventh Amendment into play in §1983 actions. See, e.g.,
Stoner v. Wisconsin Dept. of Agriculture, Trade and Consumer Protection,
50 F. 3d 481, 482-483 (CA7 1995); Blalock v. Schwinden, 862 F. 2d
1352, 1354 (CA9 1988); Duckworth v. Franzen, 780 F. 2d 645, 650
(CA7 1985). These cases rely on the concern that originally drove the adoption
of the Eleventh Amendment — the protection of the States against involuntary
liability. See Hess v. Port Authority Trans-Hudson Corporation,
513 U.S. 30, 39, 48 (1994). But States institute indemnification policies
voluntarily. And so, indemnification provisions do not implicate one of the
underlying rationales for state sovereign immunity — a government’s ability to
make its own decisions about “the allocation of scarce resources.” Alden,
527 U.S., at 751.
rights suit under 42 U.S.C. §1983 against a state officer in his individual
capacity implicates the Eleventh Amendment and a State’s sovereign immunity
from suit.5 Federal appellate courts that have
considered the indemnity question have rejected the argument that an indemnity
statute brings the Eleventh Amendment into play in §1983 actions. See, e.g.,
Stoner v. Wisconsin Dept. of Agriculture, Trade and Consumer Protection,
50 F. 3d 481, 482-483 (CA7 1995); Blalock v. Schwinden, 862 F. 2d
1352, 1354 (CA9 1988); Duckworth v. Franzen, 780 F. 2d 645, 650
(CA7 1985). These cases rely on the concern that originally drove the adoption
of the Eleventh Amendment — the protection of the States against involuntary
liability. See Hess v. Port Authority Trans-Hudson Corporation,
513 U.S. 30, 39, 48 (1994). But States institute indemnification policies
voluntarily. And so, indemnification provisions do not implicate one of the
underlying rationales for state sovereign immunity — a government’s ability to
make its own decisions about “the allocation of scarce resources.” Alden,
527 U.S., at 751.
Finally, our conclusion that
indemnification provisions do not alter the real-party-in-interest analysis for
purposes of sovereign immunity is consistent with the practice that applies in
the contexts of diversity of citizenship and joinder. In assessing diversity
jurisdiction, courts look to the real parties to the controversy. Navarro
Savings Assn. v. Lee, 446 U.S. 458, 460 (1980). Applying this
principle, courts below have agreed that the fact that a third party
indemnifies one of the named parties to the case does not, as a general rule,
influence the diversity analysis. See, e.g., Corfield v. Dallas Glen
Hills LP, 355 F. 3d 853, 865 (CA5 2003); E. R. Squibb & Sons, Inc. v.
Accident & Cas. Ins. Co., 160 F. 3d 925, 936-937 (CA2 1998). They
have similarly held that a party does not become a required party for joinder
purposes under Federal Rule of Civil Procedure 19 simply by virtue of
indemnifying one of the named parties. See, e.g., Gardiner v. Virgin
Islands Water & Power Auth., 145 F. 3d 635, 641 (CA3 1998); Rochester
Methodist Hospital v. Travelers Ins. Co., 728 F. 2d 1006, 1016-1017
(CA8 1984).
indemnification provisions do not alter the real-party-in-interest analysis for
purposes of sovereign immunity is consistent with the practice that applies in
the contexts of diversity of citizenship and joinder. In assessing diversity
jurisdiction, courts look to the real parties to the controversy. Navarro
Savings Assn. v. Lee, 446 U.S. 458, 460 (1980). Applying this
principle, courts below have agreed that the fact that a third party
indemnifies one of the named parties to the case does not, as a general rule,
influence the diversity analysis. See, e.g., Corfield v. Dallas Glen
Hills LP, 355 F. 3d 853, 865 (CA5 2003); E. R. Squibb & Sons, Inc. v.
Accident & Cas. Ins. Co., 160 F. 3d 925, 936-937 (CA2 1998). They
have similarly held that a party does not become a required party for joinder
purposes under Federal Rule of Civil Procedure 19 simply by virtue of
indemnifying one of the named parties. See, e.g., Gardiner v. Virgin
Islands Water & Power Auth., 145 F. 3d 635, 641 (CA3 1998); Rochester
Methodist Hospital v. Travelers Ins. Co., 728 F. 2d 1006, 1016-1017
(CA8 1984).
In sum, although tribal sovereign
immunity is implicated when the suit is brought against individual officers in
their official capacities, it is simply not present when the claim is made
against those employees in their individual capacities. An indemnification
statute such as the one at issue here does not alter the analysis. Clarke may
not avail himself of a sovereign immunity defense.
immunity is implicated when the suit is brought against individual officers in
their official capacities, it is simply not present when the claim is made
against those employees in their individual capacities. An indemnification
statute such as the one at issue here does not alter the analysis. Clarke may
not avail himself of a sovereign immunity defense.
IV
The judgment of the Supreme Court of
Connecticut is reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.
Connecticut is reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
JUSTICE GORSUCH took no part in the
consideration or decision of this case.
consideration or decision of this case.
__________________
1There are currently 567 federally
recognized Indian and Alaska Native entities. 81 Fed. Reg. 26826-26832 (2016);
see also Native Hawaiian Law: A Treatise 303-324 (M. MacKenzie ed. 2015)
(discussing the existing relationships between the U.S. Government and
federally recognized tribes and other indigenous groups in the United States); F.
Cohen, Handbook of Federal Indian Law §§1.01-1.07 (2012 and Supp. 2015); V.
Deloria & R. DeMallie, Documents of American Indian Diplomacy: Treaties,
Agreements, and Conventions, 1775-1979 (1999).
recognized Indian and Alaska Native entities. 81 Fed. Reg. 26826-26832 (2016);
see also Native Hawaiian Law: A Treatise 303-324 (M. MacKenzie ed. 2015)
(discussing the existing relationships between the U.S. Government and
federally recognized tribes and other indigenous groups in the United States); F.
Cohen, Handbook of Federal Indian Law §§1.01-1.07 (2012 and Supp. 2015); V.
Deloria & R. DeMallie, Documents of American Indian Diplomacy: Treaties,
Agreements, and Conventions, 1775-1979 (1999).
2There are, of course, personal
immunity defenses distinct from sovereign immunity. E.g., Harlow v. Fitzgerald,
457 U.S. 800, 811-815 (1982). Clarke argues for the first time before this
Court that one particular form of personal immunity is available to him here —
official immunity. See Westfall v. Erwin, 484 U.S. 292, 295-297
(1988). That defense is not properly before us now, however, given that
Clarke’s motion to dismiss was based solely on tribal sovereign immunity. See Travelers
Casualty & Surety Co. of America v. Pacific Gas & Elec. Co.,
549 U.S. 443, 455 (2007) [20 Fla. L. Weekly Fed. S109a].
immunity defenses distinct from sovereign immunity. E.g., Harlow v. Fitzgerald,
457 U.S. 800, 811-815 (1982). Clarke argues for the first time before this
Court that one particular form of personal immunity is available to him here —
official immunity. See Westfall v. Erwin, 484 U.S. 292, 295-297
(1988). That defense is not properly before us now, however, given that
Clarke’s motion to dismiss was based solely on tribal sovereign immunity. See Travelers
Casualty & Surety Co. of America v. Pacific Gas & Elec. Co.,
549 U.S. 443, 455 (2007) [20 Fla. L. Weekly Fed. S109a].
3As noted above, the Supreme Court of
Connecticut did not reach whether Clarke should be entitled to sovereign
immunity on the basis of the indemnification statute. We nevertheless consider
the issue fairly included within the question presented, as it is a purely
legal question that is an integral part of Clarke’s sovereign immunity argument
and that was both raised to and passed on by the trial court. See Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985) (“[T]he purely legal question on which
[petitioner’s] claim of immunity turns is appropriate for our immediate
resolution notwithstanding that it was not addressed by the Court of Appeals”
(internal quotation marks omitted)).
Connecticut did not reach whether Clarke should be entitled to sovereign
immunity on the basis of the indemnification statute. We nevertheless consider
the issue fairly included within the question presented, as it is a purely
legal question that is an integral part of Clarke’s sovereign immunity argument
and that was both raised to and passed on by the trial court. See Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985) (“[T]he purely legal question on which
[petitioner’s] claim of immunity turns is appropriate for our immediate
resolution notwithstanding that it was not addressed by the Court of Appeals”
(internal quotation marks omitted)).
4Our holding in Hess v. Port
Authority Trans-Hudson Corporation, 513 U.S. 30 (1994), is not to the
contrary. There the immunity question turned on whether the Port Authority
Trans-Hudson Corporation was a state agency cloaked with Eleventh Amendment
immunity such that any judgment “must be paid out of a State’s
treasury.” Id., at 48, 51-52 (emphasis added). Here, unlike in Hess,
the damages judgment would not come from the sovereign.
Authority Trans-Hudson Corporation, 513 U.S. 30 (1994), is not to the
contrary. There the immunity question turned on whether the Port Authority
Trans-Hudson Corporation was a state agency cloaked with Eleventh Amendment
immunity such that any judgment “must be paid out of a State’s
treasury.” Id., at 48, 51-52 (emphasis added). Here, unlike in Hess,
the damages judgment would not come from the sovereign.
5A suit against a state officer in
his official, rather than individual, capacity might implicate the Eleventh
Amendment. See Kentucky v. Graham, 473 U.S. 159, 165-166 (1985).
his official, rather than individual, capacity might implicate the Eleventh
Amendment. See Kentucky v. Graham, 473 U.S. 159, 165-166 (1985).
__________________
JUSTICE THOMAS, concurring in the
judgment.
judgment.
I remain of the view that tribal
immunity does not extend “to suits arising out of a tribe’s commercial
activities conducted beyond its territory.” Michigan v. Bay Mills
Indian Community, 572 U.S. ___ (2014) [24 Fla. L. Weekly Fed. S765a]
(dissenting opinion) (slip op., at 2); see also Kiowa Tribe of Okla. v. Manufacturing
Technologies, Inc., 523 U.S. 751, 764 (1998) (Stevens, J., dissenting).
This suit arose from an off-reservation commercial act. Ante, at 3.
Accordingly, I would hold that respondent cannot assert the Tribe’s immunity,
regardless of the capacity in which he was sued. Because the Court reaches the
same result for different reasons, I concur in its judgment.
immunity does not extend “to suits arising out of a tribe’s commercial
activities conducted beyond its territory.” Michigan v. Bay Mills
Indian Community, 572 U.S. ___ (2014) [24 Fla. L. Weekly Fed. S765a]
(dissenting opinion) (slip op., at 2); see also Kiowa Tribe of Okla. v. Manufacturing
Technologies, Inc., 523 U.S. 751, 764 (1998) (Stevens, J., dissenting).
This suit arose from an off-reservation commercial act. Ante, at 3.
Accordingly, I would hold that respondent cannot assert the Tribe’s immunity,
regardless of the capacity in which he was sued. Because the Court reaches the
same result for different reasons, I concur in its judgment.
__________________
JUSTICE GINSBURG, concurring in the
judgment.
judgment.
On the scope of tribal immunity from
suit, I adhere to the dissenting views expressed in Kiowa Tribe of Okla. v.
Manufacturing Technologies, Inc., 523 U.S. 751, 760 (1998) (Stevens, J.,
dissenting), and Michigan v. Bay Mills Indian Community, 572 U.S.
___, ___ (2014) [24 Fla. L. Weekly Fed. S765a] (THOMAS, J., dissenting) (slip
op., at 1). See also id., at ___ (GINSBURG, J., dissenting) (slip op.,
at 1). These dissenting opinions explain why tribes, interacting with nontribal
members outside reservation boundaries, should be subject to non-discriminatory
state laws of general application. I agree with the Court, however, that a
voluntary indemnity undertaking does not convert a suit against a tribal
employee, in the employee’s individual capacity, into a suit against the tribe.
I therefore concur in the Court’s judgment.
suit, I adhere to the dissenting views expressed in Kiowa Tribe of Okla. v.
Manufacturing Technologies, Inc., 523 U.S. 751, 760 (1998) (Stevens, J.,
dissenting), and Michigan v. Bay Mills Indian Community, 572 U.S.
___, ___ (2014) [24 Fla. L. Weekly Fed. S765a] (THOMAS, J., dissenting) (slip
op., at 1). See also id., at ___ (GINSBURG, J., dissenting) (slip op.,
at 1). These dissenting opinions explain why tribes, interacting with nontribal
members outside reservation boundaries, should be subject to non-discriminatory
state laws of general application. I agree with the Court, however, that a
voluntary indemnity undertaking does not convert a suit against a tribal
employee, in the employee’s individual capacity, into a suit against the tribe.
I therefore concur in the Court’s judgment.
* * *