SOVEREIGN IMMUNITY-INDEMNIFICATION

May 22nd, 2017 by Rieders Travis in Sovereign Immunity

Soverign Immunity and an Indemnification Clause

Lewis v. Clarke, 2017 U.S. LEXIS 2796, 581 U.S. ___ (April 25, 2017) Sotomayor, J. 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.

This case arose in the context of an Indian tribe with gaming authority.

We have never before treated a lawsuit against an individual employee as one against a state instrumentality.  A civil rights suit under 1983 against a state officer in his official capacity does not implicate the Eleventh Amendment and a state’s sovereign immunity from suit.  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.

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.