Allison Hester


Tribal sovereign immunity is an important tool available to American Indian tribes as they have rebuilt, restructured, and rejuvenated their communities in the era of Self- Determination following centuries of colonialism, land grabs, and cultural genocide. Sovereign immunity protects tribes by establishing a barrier to both trampling of tribal sovereignty through non-tribal courts and costly adverse judgments. Recent precedent from the Ninth Circuit has weakened tribal sovereign immunity. Maxwell v. County of San Diego, pivoting from previous decisions, held that tribal employees can be sued individually for money damages for actions taken in the course and scope of their employmentas long as the tribe is not named as a party. Allowing such individual-capacity suits to proceed allows plaintiffs to circumvent tribal sovereign immunity through a trick of pleading. The Maxwell court asserts that it merely aligns state and tribal sovereign immunity to make the doctrines "coextensive." However, this holding ignores the distinct differences of origin and operation between tribal and state sovereign immunity. Maxwell became important on the national stage when the United States Supreme Court granted certiorari in a case posing a similar issue, the amusingly-captioned Lewis v. Clarke. This Note explores the misunderstanding of tribal sovereignty and erroneous legal conclusions which drive Maxwell's holding. It argues that the Supreme Court should reject Maxwell's holding and continue to route changes to tribal sovereign immunity through Congress.