Sovereign immunity protects governments from lawsuits to which the government does not consent. Tribal governments, of course, possess immunity from lawsuits unless, according to the United States, the United States is the party presenting a claim against the tribal government. Individuals who serve tribal governments as tribal officials and employees are protected by the same immunity which protects the tribal government as long as the tribal official or employee are acting within the course and scope of their duties. Accordingly, when the tribal official acts consistently with tribal law or the tribal employee acts consistently with tribal law, the employee handbook and the employee’s job description, the immunity which protects the tribe protects the tribal official and employee. However, when the tribal official or employee acts outside their defined duties, the immunity which protects the tribe does not protect the official or employee. Let’s refer to this summary as the General Rules.

In a recent case venued in federal court in Arizona (Pistor v. Garcia) and another from last year in the Ninth Circuit (Maxwell v. County of San Diego) courts are contradicting the General Rules by holding officials and employees responsible even when they act within their defined duties. Now, to be fair, other courts have properly followed the General Rules but what happens if these two cases are the start of a trend toward the dilution of immunity for people who serve on tribal council and those employed as tribal administrators, human resources directors and CEOs of tribal enterprises. Are there things we can do today to minimize the risks posed to tribal officials and employees if the immunity defense fails to terminate legal proceedings? The answer is Yes.

Following are suggestions intended to minimize the risks to tribal officials and employees if immunity does not protect these individual actors:

First, the tribe should purchase insurance which protects individual actors like members of tribal council, tribal administrators, directors and CEOs. Your insurance broker can help you evaluate the products which serve this function and they can discuss to whom coverage is extended and over what events. Discuss with your broker those products which place the financial burdens of legal proceedings on the insurance company instead of on your officials and employees. With good insurance coverage in place, if there is a lawsuit and the allegations in the suit deal with a covered event, the insurance company pays for the lawyer to represent you in the lawsuit. On the other hand, you can spend thousands of dollars in lawyers fees trying to get out of a lawsuit which should have never started. Instead, if you are acting within your delegated duties, the expenses of a lawsuit should be satisfied by the tribe or the insurance company which is there to protect you.

Second, set up a system where workplace disputes are addressed by the employer in a meaningful way. Frustrated employees seek assistance of lawyers and federal agencies when there is a perception or reality that the tribe is not treating employees fairly. One step toward both the perception and reality of workplace fairness, is a meaningful grievance process. There are many ways to design and construct a meaningful grievance process and therefore take the opportunity to shape the process to reflect the tribe’s values and customs. If we provide meaningful due process to employees in the workplace, we can address workplace disputes before the employee gets so frustrated that they are retaining legal counsel or submitting a complaint to a federal agency which may, or may not, have jurisdiction over the tribal employer. My preference is to allocate resources to tribal dispute resolution instead of litigating jurisdictional questions in the courts of another sovereign.

Third, define the employment relationship between employer and employee in a clear way through employee handbooks, standard operating procedures, internal controls, job descriptions and performance agreements. Once the relationship is defined through these documents, provide sufficient training to enhance employee productivity and compliance. Thereafter, ensure that supervisors fairly hold employees accountable to the defined terms and conditions. By taking these steps, employees start to recognize that the rules are fair and they are applied evenhandedly. In this environment, there are less claims raised by employees and the immunity issue is less likely to be confronted.

Fourth, except for a handful of employees who serve at the pleasure of tribal council, employment decisions like hiring and firing, should not be a tribal council decision. Tribes elect excellent people who serve in leadership positions like tribal council. However, because of the perception from many employees, when tribal council is involved in employment related matters, no matter how good the individuals are or how sound the decision is, there is a perception that politics played a negative role. When employment decisions are delegated from tribal council to the management team, the claims of political influence will still be heard but with less frequency. Moreover, the management team should have hiring protocols in place which may, if followed, provide protections against the claims of politics if tested in the courtroom.

Fifth, because there is so much confusion regarding the question of whether certain federal employment laws apply to tribes, promulgating fair employment laws which reflect the uniqueness of your tribe, can reinforce the strength of a defense to an employment claim presented by a federal agency or private person. Courts will likely give more credence to tribal law than tribal policy therefore defining employment rules as tribal law exercises the tribe’s sovereignty which will serve as an additional argument against the application of another sovereign’s rules.

Sixth, reinforce the tribe’s jurisdiction over nonmember employees by getting all employees to sign consents to the exclusive jurisdiction of the tribe if claims arise. This is the topic of previous newsletters which include language you might consider utilizing in drafting documents of consent. Please permit me to share a copy of that previous newsletter.

Recommendation: Be proactive in exercising immunity when available and appropriate, but if there is a risk that immunity will not apply, reinforce your other practices to enhance the opportunity of successfully defending a claim relating to a breach of the terms and conditions of employment.