Argument analysis: Court unlikely to resolve complex issues about scope of sovereign and tribal immunity

There are some oral arguments in which it becomes apparent that the court made a mistake in granting certiorari. Monday’s argument in Lewis v. Clarke is one of those cases. As described in my argument preview, the case involves a car accident in Connecticut in which the defendant was an employee of an Indian tribe, which asserted a defense of sovereign immunity. The case exposes some interesting problems in the court’s jurisprudence regarding sovereign immunity generally, the characterization of claims for sovereign immunity purposes and the scope of Indian tribe immunity. But the oral argument leaves the impression that the court may have bitten off more than it can chew. Given the absence of a ninth vote, the most likely result is a punt.

The argument began with the lawyers for the Lewises, Eric Miller. Miller described the other side as taking the position that “plaintiffs who have had no connection to an Indian tribe whatsoever who were injured as a result of a tribal employee’s negligence in carrying on a commercial activity miles away from a reservation should have no remedy except whatever the tribe chooses to provide in tribal court.” This would, he asserted, “represent[] an extraordinary and unwarranted expansion of tribal immunity.”

Several justices, including Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, pressed Miller on the differences between tribes and other sovereigns, such as states and the federal government. The federal government has legislated against the backdrop of Supreme Court cases and specified how cases against its employees should proceed – basically, against the government and not the individuals (unless they are acting unconstitutionally, as in section 1983 actions). Over the course of the argument, we learned that some states have waived sovereign immunity in these cases, while others have not, requiring a plaintiff to proceed against an individual state employee. At the end of this discussion, the big question was whether the tribes should be treated as equal to or different from states.

Another line of questioning for Miller was more general, asking whether the court should continue to support its precedents that draw a distinction between suits against individuals and sovereigns. Kagan pressed the point. She seemed inclined to focus more on who ultimately pays for any damages, as opposed to who is named in the complaint. She asked, “why shouldn’t it be the rule that if the State pays, we should understand it to be a suit against the State[?]” Kagan’s question invited the court to revisit several settled precedents, but there seemed to be little interest in this among the other justices.

In a series of questions, Justices Samuel Alito and Ginsburg wondered whether a state could expand the immunity of a tribe. Alito asked this pointedly (and incredulously), before Ginsburg recharacterized it as whether Connecticut could use principles of comity to defer to tribal proceedings in this case. Miller suggested this was possible, but stated that it was not the explicit basis of the decision below.

The broad implications of this view were articulated in a colloquy with Chief Justice John Roberts, who asked the government for its position on whether “sovereign immunity [should apply] to tribal entities at all.” He was referring, among other cases, to the court’s recent decision in Michigan v. Bay Mills Indian Community, in which the court hinted at the possibility of no tribal immunity in a narrow class of cases. The most obvious of these was when the plaintiff would have no remedy at all because of sovereign immunity. The government took the position that this issue was not presented in yesterday’s case, because there was a potential remedy in tribal court. Reading the tea leaves, one senses several votes on the current court to further limit the concept of tribal sovereign immunity. But this case, involving a simple act of negligence that takes place off the reservation, may be too weak a foundation on which to ground the reconsideration of tribal sovereign immunity.

Finally, Justice Stephen Breyer, ever the pragmatist, asked Miller to remark on the argument offered by the U.S. government as a “friend of the court” – namely, that the case should not be governed by “sovereign immunity” but rather by “official immunity.” As noted in my argument preview, the government’s brief made the case that under current law, official immunity is the appropriate basis for resolving the case, and that the Connecticut Supreme Court erred by deciding it on sovereign immunity grounds. Ann O’Connell argued for the government that if the Connecticut Supreme Court considered the issue on remand, the case law was fairly clear that “there would be no entitlement to official immunity.”

Then it was Neal Katyal’s turn to argue on behalf of Clarke, the respondent. The discussion focused in large part on whether plaintiffs could avoid sovereign immunity by simply styling their complaint as against an individual. The answer is, they can, under federal common law, so long as the relief sought is from the individual, even if ultimately indemnified by the sovereign. In essence, Katyal argued for the court to reconsider its sovereign immunity doctrine, which would constitute a major change in long-settled law. The court may indeed do so, but probably not without a full complement of justices, and probably not in this case.

Kagan then took a different tack, noting that while the tribe in this case provided a forum in which the Lewises could have brought their suit, that might not always be the case. With immunity, a tribe could deny plaintiffs any remedy. Katyal responded that the state has power to extract concessions from tribes that seek to conduct gambling operations, through the procedures set up under federal law authorizing tribal gaming. He pointed to other states and tribes, which filed “friend of the court” briefs on Clarke’s side, that had done just this. Katyal characterized the Lewises as attempting to relitigate Connecticut’s failure to extract concessions when the tribe in this case entered into a compact with the state.

Alito expressed concern that the state would not be motivated to extract such concessions because “Connecticut has a very strong incentive to … be solicitous of the interests of the Mohegan tribe because the State gets an enormous amount of revenue from this casino.” Katyal argued that this is a matter of state law and prerogative, and that federal law should have nothing to say on the matter.

At the end of the day, there was no strong consensus among the justices about how this case should turn out. This was in part because the case has many moving doctrinal parts. It could be resolved on broad sovereignty grounds, on a reconsideration of the court’s distinction between sovereign and official immunity, on the efficacy of tribal justice, on the possibility of comity or using bargaining to protect individual litigants, or a host of other possibilities. Because the case comes to the court early in the litigation and without a full complement of justices, it is an unlikely vehicle for reworking the court’s sovereign immunity jurisprudence. A soft prediction is that the court will send the case back to the Connecticut courts to reconsider issues of comity, official immunity and the implication of the off-reservation location of the accident.