argument next this morning case fifteen fifteen hundred louis versus clarke mr miller mr chief justice and may please the court in an individual capacity action against a government employee the plaintiff six relief from the employee personally the judgment is not enforceable against the government for that reason such an action does not implicate sovereign immunity this court has repeatedly apply that principle to individual capacity actions against federal and state employees and it applies equally when the defendant is an employee of an indian tribe and advocating a contrary role respondent takes the position the plaintiffs who have had no connection to an indian tribe whatsoever were injured as a result of a tribal employee's negligence and carrying connecticut highway not on the reservation in the tribe does not have the authority to define the process for handling that claim that's subject to connecticut law so that the the analogy i think that they're trying to draw is if you had an employee of one know was involved in an accident in a different state and you know that there are a lot of reasons that situation isn't really analogous but but even taking it on its own terms the forum state has  here is a sort of immunity or a sort of ability to control how the litigation proceeds that is unlike what any other state would enjoy and in his briefing this one floor there are under are a couple of antecedent questions there your honor it is so were you one hired is about the full faith and credit clause which applies to states not by tribes hired is also about an action against a state agency and not an individual worse than it would treat itself so if you applied the analogy here you would say that connecticut has a regime in which an action against a state employee is barred but instead you sue the state directly so applying that here you would say well we can't sue mr clark so instead we get to sue the tribe but the tribe doesn't want that because the tribe it is not willing to subject itself to jurisdiction in connecticut the tribe has not waived its sovereign immunity in connecticut courts so the tribe is is not asking for application of the principle of high and it's asking for something quite a bit more and it's what it is asking for is the authority to legislate substantive differences but that's that's correct your honor when when there is a suit against and entity like the port authority of new york in new jersey and the question is whether that is really a  whether that is a suit against one of the states and therefore subject to sovereign immunity we would look to see who would pay the judgment so that's mr cat house argument why wouldn't we do the same why should we not do the same thing when it is against an employee when you have a state created agency like like the port authority of new the court looks at a number of factors to assess whether that agency should be treated as centrally the state or as some distinct entity and that you're right one of the factors is financial responsibility but the court has never applied that analysis in assessing whether a natural person who is not a creation of state law why shouldn't we i mean you suggest the difference is because this is a voluntary agreement but why shouldn't it be the rule that if the state pay is we should understand it to be a suit against the state  of the that would be inconsistent with a number of decisions i think you're right mr miller i think we would have to change a lot to say something like that i'm just asking why wouldn't that be a sensible rule well for one thing is it's not a sensible rule because a immunity is a question that ought to be decided as this court has said many times at the threshold of a litigation you should be able to look at the pleadings and see if it is the suit against the state or is it against somebody other than the state and if it is  unity bars the suit and we don't proceed further indemnification is not always so easy to tell at the outset the tribal code for example provides for indemnification except in cases of reckless conduct  in this case where we have an alleged recklessness but we also haven't had any discovery and it may be that facts will emerge in the course of discovery that would establish that mr clark had been reckless at the time of the accident and then even on respondents theory that  officer of the state if that were right then as we noted in the brief there are many states that by statute indemnify all of their employees and one thousand nine hundred three damages actions against employees in any of those states would implicate the eleventh amendment the converse of this of this issue in this court's decision in regions of the university of california against doe where the defendant was the university of california and it was subject to a indemnification obligation from the department of energy and the plaintiffs you correctly you know the university does not face any real financial liability here whatever happens the federal government is going to pay but the court nonetheless held that eleventh amendment relief against the sovereign you look at what the relief is that's being sought and not the more difficult to determine question of where the economic loss might or might not alternately fall at the end of all the proceedings not be barred by official immunity it certainly wouldn't be barred by sovereign immunity either because it's not a suit against the sovereign now i have to say there aren't a lot of cases certainly not recently in which individual employees of foreign governments have been sued in the situation and that's because in this situation you could sue the foreign government directly under the f s a in this case the if the foreign government were operating a casino in connecticut you could just see them directly under the commercial activity  exception and if for some reason that didn't apply that the domestic tort exception a tort committed in the united states by the foreign government is not subject to foreign sovereign immunity so it is our understanding that you could sue the employee and certainly you could sue foreign government is it always the case that the plaintiff simply gets to choose whether it wants to proceed in an individual capacity or in an official capacity or are there constraints at all  choose is by the relief that they're seeking not just the label that they attach so in and edelman i mean whatever the plaintiff may have chosen to call that the actually the relief that was sought was the payment of welfare benefits or disability benefits damages from mr clarke personally he's not he's not the tribal treasurer he doesn't have authority to make some payment on behalf of the tribe we just want the money from him as an individual do you think administration or requires the tried to do something it's still you know he yes the well the i mean that the test is it is the officer being compelled to do something on behalf of the tribe or is he being compelled to do something just as a private person who happens to be an employee of the tribe it turns on that question not as the connecticut supreme court thought thing we think about that is that is that is not before the court the question presented has stated both in the petition and in respondents brief in opposition referred only to sovereign immunity the only issue that was addressed below was sovereign  pleading so that's an argument that not only is not an official community or human it's really inconsistent with the idea of an immunity that would apply and he think it was waived was that argument waived we do it at least for purposes of this practical reason for the court not to address the issues here and that is that whatever one thinks of the merits of the arguments of the there are certainly a lot of difficult novel questions raised by the official immunity issues  this court word to resolve them would be the first court to do so not just in the course of this litigation but in many of these questions the first court anywhere ever and we would suggest that's  expand the immunity of the indian tribe and i was going to ask you is there any for the thirty for that that's troublesome concept for me but again i don't think that's before that's all going to happen oh that's why the yes of the state the exact scope of that is not presented here because no one's tried to do it yet but the state may have some discretion as a matter of comedy to extent to defer to tribal court procedures and to tribal law beyond what federal law or the federal constitution requires but but it hasn't sought to do so and so that's not presented here chief justice and may it please the court petitioner sue is a personal capacity suit against an individual tribal employee and the tribe sovereign immunity is therefore not implicated the connecticut supreme court reached the opposite conclusion by holding that the tribes sovereign immunity extends to any of its employees acting within the scope of his employment even if the plaintiff seeks damages against that employee personally that holding is contrary to the settled rule that distinguishing between a personal capacity suit and an official capacity suit depends on the capacity in which the employee is sued not the capacity in which he acted when he inflicted the alleged harm it particularly makes sense that tribal sovereign immunity wouldn't apply here because there's a co ordinate doctrine of official immunity that applies in personal capacity suits and we think official immunity does as a matter of federal common law apply to tribal employees that it should extend to the scope of the federal question we don't think the court should reach the question in this case we've briefed both tribal sovereign immunity and official immunity so the court has the whole scope of how immunity defenses should operate in a case like this and we certainly wanted the court to be aware of our views on official immunity we wouldn't want the court to write anything in its opinion about tribal sovereign immunity that would preclude a defense of official immunity from being raised in this case or by other tribal employees sued in the future but the connecticut supreme court decided this question as a matter of tribal sovereign immunity and that's the question before the court so we think it's appropriate for the court to decide the tribal sovereign immunity question and reman connecticut supreme court which could address official immunity to the extent time what would be right that you think would affect official immunity as i was reading your brief i was trying to figure that out because we're basically announcing the rule that the individual capacity suits sovereign immunity is not implicated unless the remedy song implicates the tr what else could we write that would preclude official immunity well i think justice sotomayor these as you can tell from the connecticut supreme court's decision in this case and the cases cited there in these two concepts are often confused or conflated with one another and lower courts and so we just wanted to be absolutely clear what we think the united states view is on each of those separate questions so that the court you know so that the court wouldn't write anything in a tribal sovereign immunity opinion that would have effect official immunity do you think that might have happened here in the court below in the connecticut courts that those two concepts were confuse the connecticut supreme court we think when you read the opinion they've definitely decided this case is a matter of tribal sovereign immunity i think the mistake that litigants and courts often make is to say that if a tort was committed in the employee's official capacity it's an official capacity suit and it's barred by sovereign immunity but the court has repeatedly explained that's not the right way to go about it if you're suing the employee in his personal capacity for damages against him the immunity of his sovereign employer is not implicated it's possible that this issue could still be decided on remand that would be an issue of connecticut state law to determine whether an official immunity defense has already been raised by citing cases that don't conflate the concepts or maybe the still an opportunity for the respondent to raise that as a matter of state law on the facts of this case is there any argument in favor of official immunity to mr clark is not a member of the tribe he's driving a limo on i ninety five transporting gamblers and he really runs mr lewis who is not a member of the tribe you think there's any argument in favor of sovereign immunity for mr clarke under the facts of this case for official immunity based on the facts as you've described them and as i understand them no driving is a quintessential activity that in both involves no policy making authority i think the federal that shows that and cases of this court show that i would stress that this court the case was dismissed at the most preliminary stages so the respondent hasn't had an opportunity to develop any kind of an official immunity argument i suppose there could be some reason that he could give why he would be authorized to drive in a way that would otherwise be reckless maybe there like a medical emergency or something that we just i don't know that anything like that was happening as far as i understand it this was a typical traffic accident where a car was rear ended and in such a case there would be no entitlement to official immunity well mr clark is arguing that if you're going to go back to the common law official of the unity doctrine that co as our wishful case indicated even non discretionary acts that it covered every year what's your position on that the west falls said the opposite so the case they're looking  confused the case but in westfall the court said that view of what the federal common law provided was a mistaken reading of barbour says and it's this court that tells us what the federal common law is and westfall the court described that as an immunity only for discretionary decision making functions on behalf of sovereign employees but not for anything else i thought her brief was it was helpful and quite correct explain the basis for sovereign immunity and the difference between official immunity but then at the very end to indicate well maybe connecticut can expand this is a matter of state law is there is there authority for the proposition that a state can expand the immunity of an indian tr reaching proposition to say that this extent of tribal of unity is a matter of state law it is a matter of federal law the state wouldn't be amending the federal law by as a matter of comity expanding a greater protection to an indian tribe and an example might be if in this case connecticut took a look at the facts in the court said well we offer complete immunity to our employees in this circumstance and so does the tribe and the tribe has set up its own system we're going to defer to that system and give this employee complete immunity in this case even though the federal common law would afford him less as a matter of comity well i think that's a difficult proposition but again we need not reach here i think that's correct one reason it might be a difficult proposition is that the court has suggested several times that there is some uneasiness with the doctrine of applying sovereign immunity to tribal entities at all does the government have a position on that that well we think it's settled at this point that tribal sovereign immunity is a is an issue of federal law that it applies to commercial activities including off reservation commercial activities the court suggested in bay mills that there may be an exception to tribal sovereign immunity if there were some circumstance in which a person like a tort victim or a person with no connection to the tribe which is the petitioners here had no remedy for their injuries because of tribal sovereign immunity we don't think those circumstances have come to pass here of course there's a remedy in tribal court or at least there was there was a question about whether it's barred by a statute of limitations but also this suit a personal capacity suit against the driver of the vehicle is  way that they could potentially recover from their injuries without suing the tribe the tribal sovereign immunity has has generally it is understood to be a matter of federal law it arises from the united states recognition of indian tribes and so because it's an attribute of sovereignty to have not only sovereign immunity but official immunity as a matter of federal law tribal employers should be entitled to such an immunity as well if the court does get into the  issue of foreign sovereigns we would just like to note that it's our view that if foreign officials are entitled to complete immunity in united states courts you could sue the foreign sovereign under the foreign sovereign immunity as act and in this case you would be able to but we've explained in a couple of different footnotes in our briefs that you've been giving a different answer to the one that an and yet it's heard i asked suppose everything was the same except that it was a vehicle belonging to complete immunity the others are entitled to an official immunity and that extends to any acts taken in the scope of their official duties not just a discretionary ones so the driver would be immune under the law applicable to foreign you mr chief justice may it please the court as justice ginsburg noted that he contrived is asking for the same protections from suit that every other sovereign enjoys if clark were a federal employee a foreign employee or connecticut state won this suit would be barred there is no reason the rule should be different for tribes and indeed for the last fifty years it hasn't been ever since the davis decision in one thousand nine hundred sixty eight lower courts have given tribal employees a broad immunity from tort liability until the ninth circuit recently reversed course are asking this court to strip tribal employees of that longstanding immunity based on three technicalities first they're saying that the plaintiffs should be able to plead around immunity by putting the words individual capacity in the caption of their complaint but the is more nuanced than that it looks to rather the real party in interest and whether a judgment will in substance in a fact run against the tribe if it does then it's a suit against the sovereign an immunity should attach regardless of the complaints form and what would happen scenario that would unfold but those are very easy because it's ex parte young and this court's decision and shower versus road say those are circumstances in which the state official is acting ultra virus by a by violating the federal constitution and so all of th hundred eighty three suits would still proceed so we're saying that that kind of the best way to understand this case there's court hasn't really decided the question of what is the effect of an indemnification agreement on state employees but it has said so as you were saying response my friend the state instrumentality cases cases like hess which look to whether or not the instrumentality is under the control of the sovereign and who's ultimately risk sponsible in practical effect for the judgement and those two questions if you ask them here are answered affirmatively in favor of the tribe i thought you could sue somebody i may have a totally wrong thought suppose that in georgia there is some people who are drivers for the state and they go out and have an auto accident i thought you could sue the individual you can enjoy in just like any state i'm using that as an example the state's high have a lot of people driving and mine goes out on the road and gets into an auto accident i thought that you could sue the individual driver in general you cannot so connecticut is a very good example so they have a statue even you cannot because of the state law correct they passed the statute or they have a state rule correct and if so what so what what is r r we're  as a matter of water as a matter of the federal constitution or federal common law i think is the best way of ahman law under the indian tribe being a domestic nation correct on so so or are there are states that do allow you to sue  somebody who who rear ends here i'm not aware of any state that does so certainly in response to justice alito is question to the extent there was some federal cause of action or something that would supersede wouldn't and which can't have been the connecticut l before they ways legislation said he said that official immunity extends to non discretionary functions and in the westfall decision to be sure justice ginsburg this court said that it was limited to discretionary functions but congress quickly repudiated that and said that the court got it actually wrong it wasn't enough and that's a that's a congressional act you're asked the nice in effect to do what the congress had to do and wistful and you and you begin by saying oh this is a pleading maneuver which is i think a demeaning professional comment and all they were doing is following the rules that were very clearly explained in the government's brief and in the research and in the petitioners brief that there's that difference between sovereign immunity and kennedy three three responses first of all we certainly didn't mean to derive them professionally otherwise we're picking up on this court's own language and saying that it's the substance that controls the form which it's used in many of the immunity cases second on response to the question about asking this court to do congress's work for it no we're asking the asking this court to do no more than what it's done in the foreign tort four and the federal tort claims act cases like boyle for example justice kennedy the very argument that you made was made by the dissent by justice brennan but you joined justice scalia's opinion which said that just because the text of the act done to cover federal contractors and even though the federal contractor lobbied the lobby behind lobbied congress for actually an extension to the act for the immunity what this court said is our job as a court and federal common law is to look to the wisdom embodied in statutes and just because congress didn't connect the dots and apply the law to federal contractors it only  federal employees then the court said that's what we should do here and cases like willis in one thousand nine hundred sixty six say the same thing which is it's the job of the court to try and look to the widow standing which justice ginsburg says is that basically the westfall act is a complicated act that basically if you're really really are ended by a postal employee you can sue the government of the united states so a person who's the victim of an accident has recourse now my guess would be that states you something similar because it seems to me very odd that if i'm rear ended or run over by some kind of state car which has a state driver that there's no remedy at all  as you know but absolutely you have a remedy against the state itself just not against the end ok but here what we have is there is no remedy against the dry and that's why i thought it would be odd to say there is no remedy at all and therefore the basic principle seems to be that you could sue the employee but not the state so and then they change that through legislation that says justice breyer we think that that's absolutely not true what our brief says and what the n a c i brief joined by texas and four other states representing you know a bunch of tribes is that the way to deal with that is the compact process that is and this goes to your question earlier justice kennedy about whether states have protections in this area the remedy the concern the parade of hypotheticals is dealt with by the fact that you can't actually could even gamble in connecticut can set up this operation without connecticut first agreeing in a compact voluntarily to having this and in the course of that compact they said criminal jurisdiction state we get we're going to still retain it but with respect to civil jurisdiction they said this tribe you set up your own tribal court system and so this is a problem with  is that it's it seems to suggest that the state's motive will be to provide protection for somebody like mr clarke but the state of connecticut has a very strong incentive to to be solicitous of the interests of the mohican tribe because the state gets an enormous amount of revenue from this casino isn't that true justice alito i understand the point but i think that's true generally in law that is we just we rely on the state to make its own progress and choices so for example the state could decide not to have tort claims at all if they wanted to not just against tribes but against anyone if they wanted to incentivize businesses in one way or another i don't think this court gets into that rather i think the question and as our brief shows state after state have actually done the reverse justice alito seventeen different states have compaq's that do things like channel this litigation into state courts instead of tribal courts the new mexico example at page fifty three of our brief is a good example indeed justice alito in connecticut itself fox would casino which is run by the tribe has the following statute quote any person injured through the negligence of any picart tribal employee while acting within the scope of his employment and while operating a motor vehicle shall have a right of action the tribe expressly ways its immunity from suit for such claims provided such suit is brought in the courts of the state of connecticut that's the way to deal with this which is if a state's concerned about you know about limits about about tribal courts or anything like that they can do what many states have done which is say hate if you want to have gaming the individual justice sotomayor before the lawsuit was brought there was a preexisting statute of the tribe that says that they'd fully indemnify mr clark to pay all of the expenses and pay any judgment that was rendered against him so anything in substance  constitution or laws of the united states or act in so i think they are all conscious correct if it's a state and b also ultra virus and same thing would be true here that is if the federal government passed some law that you know created a tort you know our argument does not extend to that it only extends to a clash between state law and the law of the blue crosses i had ministering a federal program and they and in the course of doing so they get sued and the question that those cases are grappling with is who is the real party in interest is blue cross to get federal get sovereign immunity in the ginsburg enjoined or and in and things like that i think that's right but i don't think that is those are private party litigation cases i think if this court's asking for what's the best analogy to this situation here which is a sovereign immunity situation i think the instrumentality clay says cases are are quite a bit closer then the ones like joinder in the like which don't have anything to do with immunity to all in case after case starting with ford motor this court has been asking the question who is the real party in interest for purposes of sovereign immunity here the real party in interest this is not you know some sort of lawyer you know that we're not trying to denigrate them but the fact is in practical effect the judgment here is against the tribe there was a statute of the tribe that said we're responsible for all the costs all the judgement and so on and yes just a sotomayor they might say they want to sue clark but in practical effect they're not ok so how do we deal with this every tribe passes this you say great indemnify everybody you'll never have to pay because he soon as you do that nobody can sue you and so therefore the tribe is totally immune from the most ordinary accident taking place off the reservation and the victim of these missiles being sent out from the reservation because they run over people and there's no remedy at all now know that that seems to me pushing the notion of tribal sober and immunity off the reservation into a place where there are just no remedies for victims at all so what is the answer to the answer to that is in our brief that's exactly right justice breyer that to the extent a tribe is kind of creating a shell game and saying oh we're going to indemnify these people but then not pay the judgment or assert sovereign immunity akin to some of the hypotheticals in the first hour of the argument the last case that you were hearing absolutely those are cases in which lower court after a lower court like the ninth circuit have said oh that's a situation which sovereign immunity doesn't apply now you've said here will the fact that it's commercial are off reservation matters and that's something that mr miller said you know below they of course didn't say that that's what the connecticut supreme court said a petition appendix page ten that they never made those types of arguments but to the extent that there are troubling the court i think the answer is what this court has said in bay mills and kiowa which is tribal immunity is different in that respect than maybe some other types of immunity is it does extend to commercial off reservation activity there longstanding reasons for that having to do with the fiscal base of tribes and other things like that this court i don't think they're asking this court to try and litigate decided it squarely twice an argument i think flows very naturally from that justice kennedy there was a third thing i wanted to say in response to your long question before which is you'd said that you know and this is something that the other side  said that the lower court had relied only on sovereign immunity and not on official immunity i don't think that that's quite right i think that the lower court here the connecticut supreme court relied on basically conflated both doctrines and there's a i think  you know that's the way connecticut courts have done this indeed there is no official immunity case about tribes in connecticut courts that we have been able to find except for one mention in an unpublished opinion the way to do it in your current question presented presumably you're we certainly should have the brief in opposition there's no doubt justice sotomayor should have been clear on this well your opening brief on page twenty two twenty three says we're not claiming any personal immunity you know the difference i think i think that we did say officially and in the in the brief in opposition in page one we did say that if this were that the employee cases and the statutory cases support our position as well as the pages fourteen and fifteen and twenty two and twenty three of that brief and i do think that that follows naturally from the way the connecticut courts have understood this which is to conflate both doctrines together fishel immunity that that the reason why she said quote it makes sense a tribal sovereign immunity does not apply because official immunity does and if you take that view that the reason why tribal sovereign immunity doesn't apply is because of official immunity being here then i think you would have to get into that question we certainly think you should because we think for fifty years starting with the davis decision in one nine hundred sixty eight federal courts have recognized immunity sometimes they call a tribal immediate sovereign immunity sometimes they call it official immunity sometimes they're called sovereign immunity it doesn't actually matter here it does matter absolutely justice sotomayor in the state context what label you put on it because of its sovereign immunity congress can't abrogate it they have eleventh amendment protections but that's not didn't correct justice ginsburg that's exactly the argument this court rejected in boyle and justice scalia's opinion which is congress was lobbied to extend the federal court the federal tort claims act exception to federal contractors they didn't this court then did exactly that and as this court has said in willis quote if there's a federal statute dealing with the general subject it's a primer positon federal policy and a starting point for federal common law so federal common law works differently than the kind of express c e o linnaeus reading that i think the other side and that's embodied in the promise to your question i think the question for this court in answering federal common law is in asking a federal crime law question is what is congress's judgment in this area and if they can identify some distinction between a tribal driver and a federal driver or something like that absolutely that's a fair that they're going to get federal driver never had come and it has employees federal federal name driving correct you did and you also invited congress because you said look we're not sure about this and we congress we'd like you to act and then congress did act and when congress acted they dramatically employees had quote received an immunity that applied to non discretionary as well as discretionary actions for the west ball decision and an act of the westphal act to quote maintain the scope of that pre westfall immunity and why should  tribal employee driving a limo be entitled fishel immunity you say that the purpose of official immunity is to protect quote the fearless vigorous in effect of the administration of policies of government but you want to have you want to encourage limo drivers on i ninety five to be fearless in the way they drive well i think that the first point is that their argument is so sweeping and extends not just to drivers it extends to tribal judges it extensive tribal prosecutors and yes it extends even to drivers of emergency vehicles the ninth circuit in tenth circuit amec has brief talks about police and fire and all sorts of tribal things and what you actually would just lead oh for sure i think want them to be fearless in saving people's lives and things like that and yes there are times there are rough edges to any immunity doctrine which you can say well in this case how is that policy being served i mean take this court's decision an employer versus packman which had the you know grossest facts imaginable it you know a state prosecutor who's fabricating evidence but this court said unanimously that that person was absolutely immune so i agree that there are going to be some of those cases but i think the logic of all of the pre westfall decisions as well as the westfall act is to say we're not getting into that about you know as long as the person is a federal employee then they have official immunity in here as long as the person's a tribal employee and as long as it is in because of because the state of connecticut does have a remedy against any sort of concerns so if they were concerned about your situation about fearless driving they can do in negotiating the compact as new mexico has done for something else and say look we want this channeled into state court we insist that you waive immunity there  available to states in this circumstance and indeed connecticut availed themselves of them in this compact and now what these folks are asking for is to renegotiate that compact and ask for something up in a beyond what the state of connecticut has provided for the question thank you council mr miller seven minutes immunity as has been discussed in order to craft an immunity rule that would reach the facts of this case it would be something far beyond what the common law has recognized this is a case that involves negligent driving of a car that's the canonical example of a non but in footnote eight of bales the court noted that there is at least some question as to whether the tribe even has unity in that context and again you don't need to resolve that question here but that's an additional reason to be cautious before has the expert or young does not authorize the relief of retrospective awards of damages so you know if respondents were right and indemnification converted to the action against the employee into one against the state  even under young it wouldn't be permissible do you think mr miller that there's any decision that precludes us from saying that we're going to treat this as sovereign immunity or not sovereign immunity depending on an investor in an  also i think a holding to that effect would be in contention with all of the cases you know all the one hundred three cases from states that indemnify their employees that have assumed then on the absence of sovereign immunity  it would also be considerable tension with the analysis and diversity cases and will one thousand cases but there's nothing directly on point that would say you can't do that finally as you pointed out justice indemnification to create sovereign immunity here would would have the very strange consequence that by allowing the tribe to come in and say well the action against the employee is really against us we're going to have to pay there for immunity applies but sovereign immunity idea and we're a tribe looked less so let's look at what the statutes do and we see every state and the federal government don't let you bring a suit against the employee and make the employee pay for an automobile accident rather they offer some other remedy you go against the state for example under the westfall act you go against the federal government and so by analogy where the tribe is in fact going to pay and also offers a remedy then by analogy that latter part being important then then by analogy the federal common law should be shaped to reflect i think that's basically the kind of thought that he's your opponent here is trying to in his own name the the more fundamental problem with that with that argument from the respondent is that you know that the tribe may choose as a matter of race to provide a remedy in its court but this is a traffic accident on a public highway in connecticut and the victims of that accident the petitioners had a right under connecticut law to get redress from the negligent party and they had a right to go to a