Could “Official Immunity” Fill Gaps In Tribal Officials’ Sovereign Immunity?

Every day, tribal officials serve Indian nations by making difficult decisions, and more and more often non-tribal courts are exposing them to the peril of litigation and potential liability in state and federal courts.

Lawsuits against tribal officials are nothing new. Those frustrated by their inability to sue Indian tribes have long targeted their officials — and until recently, judges consistently rejected such tactics. Some recent judicial decisions, however, give tribal officials reason to fear they may face suit for conduct within the scope of their tribal duties.

Some courts — for instance, the Ninth Circuit in Maxwell v. County of San Diego and Tenth Circuit in Native American Distributing v.Seneca-Cayuga Tobacco Company — have suggested that tribal sovereign immunity does not bar suits seeking money damages directly from tribal officials, even when claims arise from tribal duties. Faced with similar suits for performance of their official duties, state and federal officials have been able to invoke principles of “official immunity,” another type of immunity that can bar personal liability for damages. Where tribal officials are uncertain of whether sovereign immunity applies, they might benefit from invoking official immunity doctrines, as well.

Lewis v. Clarke: Tribal Official Immunity Before The Supreme Court

In Lewis v. Clarke, the U.S. Supreme Court has agreed to hear a case this term that asks whether a tribal employee possesses immunity to money damages claims for performing tribal duties. Lewis involved state law tort claims alleging that a tribal limousine driver negligently caused an off-reservation accident. The tribal driver claimed that he shared the tribe’s sovereign immunity from suit. As an alternative defense, he claimed that official immunity also barred the state law tort claims. The United States government, appearing as amicus at the Court’s request, also suggested that tribal employees could possess official immunity (though the United States would limit that immunity to “discretionary acts” — those involving individual judgment, which might not include negligent driving).

Opportunities To Assert Official Immunity Even if the Lewis court ultimately avoids a ruling on official immunity, tribal officials will likely continue to invoke that defense as a backstop to a sovereign immunity argument. Although tribal officials have until recently easily secured dismissal without invoking official immunity, precedent suggests tribal officials could assert it.2 There are many different types of official immunity, ranging from “absolute” to “qualified” immunity. Which type may ultimately apply to tribal officials will depend on the nature of the claims and the conduct at issue.

Absolute Immunity For Judicial And Prosecutorial Conduct

State and federal judges are generally immune from suits for damages arising from judicial conduct, so long as they do not act completely outside of their jurisdiction. Judicial immunity even applies where judicial duties are performed maliciously or corruptly. Like judges, prosecutors generally possess absolute immunity when acting as officers of the court (as opposed to engaging in investigative or administrative tasks). Some authorities suggest that tribal officials, too, possess judicial and prosecutorial immunity.

Absolute Immunity For Legislative Conduct

Federal, state, and regional legislators are generally immune from liability for their legislative activities, and also from the burdens of litigation, including discovery into legislative processes. Lower federal court decisions have recognized immunity for tribal officials’ legislative activity, as well.

Absolute Immunity To State Tort Claims

The Supreme Court previously ruled that official immunity shields federal officials from state tort claims only when the claims arise from the official’s discretionary conduct, but Congress immediately responded by immunizing federal officials’ nondiscretionary conduct. Unless and until controlling authority holds otherwise, tribal officials can argue they possess immunity coextensive with federal officials: official immunity from state tort claims arising from the performance of both discretionary and nondiscretionary duties.

Qualified Immunity To Federal Law Claims

Where absolute immunity does not apply, federal officials possess “qualified” immunity for discretionary acts giving rise to federal law claims. Qualified immunity bars suit where the official makes a decision that reasonably misinterprets applicable law. The official is thus immune unless the law in effect at the time of the conduct clearly established a violation of constitutional or statutory rights. Federal courts have extended qualified immunity principles to tribal officials.5


Tribal officials will no doubt continue to assert tribal sovereign immunity defenses to claims challenging performance of their tribal duties, and will endeavor to impress upon courts that the same policies requiring sovereign immunity for tribes themselves also support immunity for the persons who faithfully serve tribal nations. Where courts may be reluctant to recognize sovereign immunity for tribal officials, official immunity may yet still be available. By arguing official immunity in tandem with sovereign immunity, tribal officials maximize their chances of successfully defending claims challenging their government activities

Originally published at on November 2, 2017.



Growing Tribal Economies and Strengthening Tribal Finance. NAFOA is 501(c)(3) organization. For more information visit

Love podcasts or audiobooks? Learn on the go with our new app.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store

Growing Tribal Economies and Strengthening Tribal Finance. NAFOA is 501(c)(3) organization. For more information visit