Lewis v. Clarke ( 2017 )

(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LEWIS ET AL. v. CLARKE
CERTIORARI TO THE SUPREME COURT OF CONNECTICUT
No. 15–1500. Argued January 9, 2017—Decided April 25, 2017
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 with-
in the scope of his employment at the time of the accident, he was
similarly entitled to sovereign immunity against suit. He also ar-
gued, 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 re-
versed, holding that tribal sovereign immunity barred the suit be-
cause 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 ca-
pacity, 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 employ-
ees 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 sov-
ereign itself—may assert sovereign immunity. Kentucky v. Graham,
473 U.S. 159, 167. But an officer in an individual-capacity action—
2 LEWIS v. CLARKE
Syllabus
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 im-
munity, 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 im-
munity defense. This action arises from a tort committed by Clarke
on a Connecticut interstate and is simply a suit against Clarke to re-
cover for his personal actions. Clarke, not the Gaming Authority, is
the real party in interest. The State Supreme Court extended sover-
eign immunity for tribal employees beyond what common-law sover-
eign 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.
(a) This conclusion follows naturally from the principles dis-
cussed above and previously applied to the different question wheth-
er a state instrumentality may invoke the State’s immunity from suit
even when the Federal Government has agreed to indemnify that in-
strumentality 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 poten-
tial legal liability lay, not from whence the money to pay the damages
award ultimately came. Here, the Connecticut courts exercise no ju-
risdiction 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 indem-
nified 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 indi-
vidual 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
Cite as: 581 U. S. ____ (2017) 3
Syllabus
alter the real-party-in-interest analysis for sovereign immunity pur-
poses 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.
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. GOR-
SUCH, J., took no part in the consideration or decision of the case.
Cite as: 581 U. S. ____ (2017) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports. Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1500
_________________
BRIAN LEWIS, ET AL., PETITIONERS v.
WILLIAM CLARKE
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
CONNECTICUT
[April 25, 2017]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
Indian tribes are generally entitled to immunity from
suit. This Court has considered the scope of that immu-
nity in a number of circumstances. This case presents an
ordinary negligence action brought against a tribal em-
ployee in state court under state law. We granted certio-
rari to resolve whether an Indian tribe’s sovereign immu-
nity 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 immu-
nity 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 provi-
sion does not extend a tribe’s sovereign immunity where it
otherwise would not reach. Accordingly, we reverse and
2 LEWIS v. CLARKE
Opinion of the Court
remand.
I
A
The Mohegan Tribe of Indians of Connecticut traces its
lineage back centuries. Originally part of the Lenni Le-
nape, 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 estab-
lished 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 Mohe-
gan 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
——————
1 There 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) (discuss-
ing 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).
Cite as: 581 U. S. ____ (2017) 3
Opinion of the Court
sovereign immunity and indemnification policies applica-
ble to disputes arising from gaming activities. The Gam-
ing 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 Au-
thority 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) (ob-
serving 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 Em-
ployee 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 Author-
ity 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.
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
4 LEWIS v. CLARKE
Opinion of the Court
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 impli-
cated. 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 em-
ployment for the Mohegan Tribal Gaming Authority and
the Mohegan Tribal Gaming Authority is an arm of the
Mohegan Tribe, tribal sovereign immunity bars the plain-
tiffs’ 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
Cite as: 581 U. S. ____ (2017) 5
Opinion of the Court
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 sover-
eign 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 sov-
ereign immunity of an Indian tribe bars individual-
capacity damages against tribal employees for torts com-
mitted 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
6 LEWIS v. CLARKE
Opinion of the Court
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 Amend-
ment’s protection. For this reason, an arm or instrumen-
tality 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 “repre-
sent 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 govern-
ment 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
Cite as: 581 U. S. ____ (2017) 7
Opinion of the Court
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 prose-
cutorial immunity in certain circumstances. Van de Kamp
v. Goldstein, 555 U.S. 335, 342–344 (2009). 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 con-
cern that plaintiffs not circumvent tribal sovereign im-
munity. 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 employ-
ees beyond what common-law sovereign immunity princi-
8 LEWIS v. CLARKE
Opinion of the Court
ples 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
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
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
——————
2 There are, of course, personal immunity defenses distinct from sov-
ereign 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).
3 As 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 argu-
ment 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)).
Cite as: 581 U. S. ____ (2017) 9
Opinion of the Court
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 dis-
cussed above. Indeed, we have applied these same princi-
ples to a different question before—whether a state in-
strumentality may invoke the State’s immunity from suit
even when the Federal Government has agreed to indem-
nify 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 employ-
ment 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 judg-
ments will not bind the Tribe or its instrumentalities in
——————
4 Our holding in Hess v. Port Authority Trans-Hudson Corporation,
513 U.S. 30 (1994), is not to the contrary. There the immunity ques-
tion 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.
10 LEWIS v. CLARKE
Opinion of the Court
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 individ-
ual 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 Au-
thority 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 im-
munity 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 instrumentali-
ties, as the governing regulations make clear. See 42 CFR
§421.5(b) (2016) (providing that the Medicare Administra-
tor “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 instrumen-
tality 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 em-
ployee 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
Cite as: 581 U. S. ____ (2017) 11
Opinion of the Court
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 vol-
untarily. And so, indemnification provisions do not impli-
cate one of the underlying rationales for state sovereign
immunity—a government’s ability to make its own deci-
sions 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
——————
5 A 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).
12 LEWIS v. CLARKE
Opinion of the Court
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.
IV
The judgment of the Supreme Court of 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.
Cite as: 581 U. S. ____ (2017) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1500
_________________
BRIAN LEWIS, ET AL., PETITIONERS v.
WILLIAM CLARKE
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
CONNECTICUT
[April 25, 2017]
JUSTICE THOMAS, concurring in the judgment.
I remain of the view that tribal immunity does not
extend “to suits arising out of a tribe’s commercial activi-
ties conducted beyond its territory.” Michigan v. Bay
Mills Indian Community, 572 U. S. ___ (2014) (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.
Cite as: 581 U. S. ____ (2017) 1
GINSBURG, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1500
_________________
BRIAN LEWIS, ET AL., PETITIONERS v.
WILLIAM CLARKE
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
CONNECTICUT
[April 25, 2017]
JUSTICE GINSBURG, concurring in the 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) (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 em-
ployee, in the employee’s individual capacity, into a suit
against the tribe. I therefore concur in the Court’s judgment.