Immunity is a defense to a lawsuit wherein the tribal government asserts that the court does not possess power or jurisdiction over the tribal defendant without the defendant’s consent.  There is a debate, and therefore risk to tribal employers, of whether explicit or implied consent is necessary to reach consent, but that debate is for another day.

Tribal employers can raise the defense of immunity if the tribe is sued.  Accordingly the tribal employer can declare its non-consent to the court’s exercise of jurisdiction and the lawsuit likely ends.  The United States asserts that if it sues the tribal employer, the defense should not be successful since the United States possesses the so-called plenary power.  Setting aside the United States as a claimant or plaintiff, the tribe’s defense of immunity should succeed if raised. The immunity defense if used can protect employers from lawsuits wherein a tribe, state, corporation or private person (employee) sues the tribe.

The immunity which protects tribal employers also protects employees and officials of the tribal employer if the employee or official is acting within the course and scope of their official duties.  Unlike the tribe’s immunity, the immunity which extends to tribal employees and officials is conditional.  The immunity works under the condition that the complained about behavior is within the course and scope of their duties and does not work if outside of their duties.  In the last couple weeks a California court, with questionable analysis, raised questions about the strength of these general rules.  Exploration of that questionable analysis will lead to a conversation about what tribal employers, and their employees and officials can do, to enhance the strength of the immunity defense and increase the odds that courts will correctly analyze this important area of the law.

In the California case a tribal gaming commission revoked the license of a gaming employee when that gaming employee refused to disclose information to the gaming commission about the employee-licensee’s cooperation with state authorities regarding unlawful activity at the casino where the employee-licensee worked.  In response to the gaming commission’s questions regarding the disclosures from the employee-licensee to the state authorities, the employee-licensee declared that the state authorities required him to refuse disclosure.  The record in this reported case is not well developed, but the gaming commission likely pressed its employee-licensee to also cooperate with the gaming commission as the primary regulator of the casino.  The gaming commission certainly had a good argument that the employee-licensee’s duty to cooperate was a condition of maintaining his license and cooperation was necessary for the gaming commission to evaluate and monitor potential challenges at the gaming enterprise the gaming commission regulates.  Because the employee-licensee refused to disclose what he disclosed to state authorities, the gaming commission revoked the employee-licensee’s license.  The employee-licensee sued the gaming commissioners individually for the consequences of his loss of a gaming license.

In response to these facts, under an immunity analysis, the California court refused to dismiss from the employee-licensee’s subsequent lawsuit those gaming commissioners which revoked the license.  Now, those gaming commissioner defendants may win on the merits of the former licensee’s claims, but while the lawsuit proceeds, the tribe, or the gaming commissioners, are spending serious money and time in defense of the claims.  The tribe and its gaming commissioners will not get that time and money back.  It will be recorded as a cost of doing business which is inflated by the court’s failure to follow the rules related to the immunity defense.

The court’s written decision does not provide an abundance of analysis, but from what is written, it appears that the court focused on whether the gaming commissioners were acting as gaming commissioners when they issued their decision to revoke the license.  Had the court really focused on that question, the commissioners would have been dismissed at the first hearing.  Of course the gaming commissioners were acting as gaming commissioners.  Instead the court focused on whether the gaming commissioners’ decision was reasonable under the facts and circumstances of the case.

More specifically, the court wrote the employee licensee “…unmistakably alleges all claims against [the gaming commissioners] in their individual capacities on the theory [the gaming commissioners] abused and exceeded their official authority as members of the Gaming Commission, and therefore are individually liable and not entitled to the protection of sovereign immunity.”  And for the money line, the court concludes “…when an official acts in a manner that exceeds or conflicts with his or her valid authority, the official’s actions are considered individual rather than sovereign actions.”

The court is not really assessing whether the officials were acting within the course and scope of their authority; instead the court was evaluating whether the gaming commissioners’ decision to revoke the license was consistent with their delegated authority and did they exercise that authority in a reasonable way.  By digging into the merits of whether the commissioners’ decision was reasonable under the circumstances, the court is forcing the individual defendants to defend the merits of the lawsuit.  Immunity is supposed to create a threshold question of viability of the claims against individual defendants at the start of a lawsuit, but this court’s acquiescence to a debate about the reasonableness of the commissioners’ conduct opens the gates to more and more expensive and time consuming litigation in this case and others. Consider a court evaluating whether a manager who terminated an employee.  Instead of focusing on whether the manager had the authority to terminate the employee, the court, if adopting the reasoning of the case discussed herein, would necessarily focus on all of the claims and defenses raised in a full-blown trial.

The problem with the court’s analysis is the gaming commissioners were acting as gaming commissioners.  As gaming commissioners these officials revoked a license the commission previously issued.  The gaming ordinance creates gaming commissions to perform this duty and commissions perform this duty through its appointed officials and employees.  When employees and officials of the tribe are performing work delegated by the tribe to the employees or officials, those acts are immune from a claim.  On the other hand, if a tribal employee or official hits someone on the head with a badminton racquet, that authority is not delegated to gaming commissioners in the performance of their official duties, and therefore the medical bill generated by the badminton racquet assault should be the individual responsibility of that commissioner.  In other words, unless the former employee-licensee was clobbered with a racquet, the lawsuit should have been dismissed.

In light of this case and some other recent cases raising questions about immunity, what can tribal employers do to protect from the potential erosion of immunity.  The questions returns the analysis to the central question:

Is the employee or official acting within the course and scope of their official duties?  If the answer is yes, the cloak of immunity which protects the tribe is supposed to protect the act.  If the answer is no, the employee or official is not acting within their course and scope, the immunity which protects the tribe does not cover the employee or official.  The relevant questions are (1) how is course and scope defined and (2) what can tribes do to define it?

How is course and scope defined?

Answer:  The tribe and tribal employer define course and scope of employment.  The tribe defines the course and scope of gaming commissioners for instance through the delegation of authority in gaming ordinances.  Gaming ordinances create commissions and thereafter define the duties of the commission.  The commission can only act through its people therefore those defined duties is the delegation of authority to the commissioners and staff of the commission.  When employees of the commission act, the defined duties in the ordinance are transformed into employee handbooks, standard operating procedures and job descriptions.  In other words, course and scope is defined through the tribe’s and tribal employer’s documents.

What can tribes do to define course and scope of employment?

Answer:  A lot.  Picking up on the analysis of the last question, since the tribe’s and tribal employer’s documents define the course and scope of employment, the tribe and tribal employer have a substantial role in determining the strength of sovereignty immunity.

There are concrete steps tribal employers can take to strengthen the immunity if tested by the courts.  The scope of employment is defined through employee handbooks, manuals, personnel procedure manuals, standard operating procedures, internal controls, job descriptions, memos, training materials, orientation checklists and other employer documents.  For example, consider how the handbook prohibits harassment and job descriptions define competencies.  Each document defines employee expectations and in defining those expectations, employers are defining the course and scope of employment. If the employee violates the handbook rules (harasses another employee) the employee is acting beyond the scope of employment.  If the employee is acting within the employee’s job description, the employee is acting within the course and scope of employment and therefore protected by the tribe’s immunity.

In addition to defining the course and scope of employment, these documents also assist in training, cross training, employee evaluations and employee discipline.  These are foundational employer documents which serve numerous beneficial functions.

In determining whether these foundational documents will assist in protecting the tribal employer, there are several relevant questions.  Do these documents exist at your organization?  Are they comprehensive?  Are they up to date?  Are they consistent with tribal law?  Consistent with tribal traditions and customs?  Do the documents inadvertently waive immunity?  Do the documents concede ground on the exercise of tribal sovereignty?

Once these documents of delegation and protection are in place, are employees receiving training and retraining on these important and far-reaching concepts?  Is the tribal employer actively evaluating whether department directors are creating an atmosphere of compliance? By creating and updating these foundational employer documents, tribal employers do not have to wait around to be sued to determine if they are prepared.  Instead tribal employers can act now by clearly defining the course and scope of an official’s duties and likewise bring clarity to employees.

Recommendation:  Protect the tribe and the employees and officials of the tribe by creating and updating employer documents to reflect the reality of what officials and employees actually do.  Enlist these officials and employees to evaluate the documents to determine if the documents reflect reality.  Please understand employees working in child welfare (for example) are the best people to communicate whether their job descriptions match reality or not.  Seek their assistance in updating the job descriptions and other employer documents to ensure the documents match reality.