“I’ve told a lot of people, in my opinion, this is a case of first impression,” said Waynesville attorney David Wijewickrama. “I don’t think this has ever been decided before. If it has, I’ll be the first to tell you I don’t know about it. And I also believe if it had, somebody would be screaming it from a mountaintop.”

Wijewickrama, whose decades of practice in Western North Carolina include serving as legal counsel for various government agencies and practicing in Cherokee Tribal Court, is not involved in the Kloepfer case. But he is not the only attorney intrigued by the case’s implications.

“It does seem that not just the facts, but also just the whole situation make this pretty unique,” said Monte Mills, Charles I. Stone Professor of Law and director of the Native American Law Center at the University of Washington.

The situation in question  stems from a 911 call placed at 11 p.m. Dec. 12, 2022, in which Kloepfer’s neighbor on a rural road in Cherokee County said she heard Kloepfer make threats against the neighborhood and was concerned that he had hurt his wife. Deputies responded to a darkened house, and nobody answered their knocks. Citing a potential hostage situation, the Cherokee County Sheriff’s Office requested assistance from the Cherokee Indian Police Department’s SWAT team, which arrived in the early morning hours. Shortly before 5 a.m., the SWAT team had surrounded Kloepfer’s home. An officer identified in the lawsuit as CCSO Sergeant Dennis Dore commanded him to come out of the trailer with his hands up. Despite an initial statement to the contrary from CCSO, home security video Kloepfer released in January shows him complying with these instructions. Nevertheless, three CIPD officers let forth a volley of bullets that severely injured Kloepfer and barely missed his wife, Alison Mahler. Afterward, he was charged with a pair of misdemeanors that were later dismissed.  

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Kloepfer and his wife Alison Mahler smile in a photo taken in 2019. Jason Harley Kloepfer/Facebook photo

In June, Kloepfer filed a federal lawsuit naming 31 defendants in both tribal and county government and alleging 25 causes of action. The suit claims that Kloepfer’s rights, including his constitutional rights, were trampled in a variety of ways.

Possible precedent

The lawsuit is complex and the situation messy, but when it comes to the allegations against the Eastern Band of Cherokee Indians and defendants associated with it, the role of tribal sovereignty could be key to determining the outcome.

Sovereign immunity  is a legal doctrine that applies to tribes in a similar way that it applies to the governments of other nations, such as the United States, protecting them from suit.

“The idea behind sovereign immunity is that governments can’t be sued unless they consent to suit,” Mills explained.

Nevertheless, lawsuits against the United States government are common. That’s because Congress has waived  federal sovereign immunity in many circumstances through laws such as the Federal Tort Claims Act, the Tucker Act and the Administrative Procedure Act. Native American tribes — such as the Eastern Band of Cherokee Indians — do not typically have similar laws on the books. This means most lawsuits against tribal governments are finished before they start.

But Kloepfer’s case is different from many would-be suits against tribal governments. The shooting took place miles away from tribal land. Tribal police were there at the behest of the county sheriff, not in relation to a case originating on tribal land. Neither Kloepfer nor Mahler are tribal members.

“Tribal immunity is probably at its strongest when it’s on tribal property and it’s a tribal governmental entity dealing with a member of the tribe,” said Raleigh attorney Ellis Boyle, who is representing Kloepfer. “That’s where it’s the strongest. And the further you get away from that, the less applicable it is.”

There is some case law to support Boyle’s stance that the officers involved in the shooting and SWAT response can be held liable for their actions, but it’s limited. Perhaps the most direct precedent is the 2017 U.S. Supreme Court case Lewis v. Clarke . That case was initiated after a limousine driven by William Clarke, an employee of the Mohegan Tribal Gaming Authority, hit another car, driven by Brian and Michelle Lewis, from behind as it drove down Interstate 95 in Connecticut. Clarke was on the job at the time, transporting patrons from the Mohegan Sun Casino to their homes, but the crash took place off of tribal lands.

When the Lewises sued him, Clarke argued that sovereign immunity should protect him, as he was acting within the scope of his job as a tribal employee when the crash occurred. But the Supreme Court ruled unanimously, with Justice Neil Gorsuch abstaining, that Clarke could be held accountable because he, not the tribe, is “the real party of interest.”

“This action arises from a tort committed by Clarke on a Connecticut interstate and is simply a suit against Clarke to re-cover for his personal actions,” reads the majority opinion authored by Justice Sonia Sotomayor. “Clarke, not the Gaming Authority, is the real party in interest.”

The court held that a defendant in an official-capacity action, in which relief is sought “only nominally” against the official but more so against that official’s office, “may” assert sovereign immunity. Clarke’s case did not involve claims against him in his official capacity, so the court did not rule on how a sovereign immunity claim would play out in the face of such claims.

Kloepfer’s suit, meanwhile, brings claims against the sovereign itself — the EBCI — and against its employees in both their official and individual capacities.

Boyle also referenced case law from other U.S. Circuit Courts that could prove persuasive in deciding the case, though only precedent from the Supreme Court and from the Circuit Court where the case originates can be considered binding.

W. Ellis Boyle. File photo

“I think it’s an underdeveloped area of the law, especially in this geographic location,” he said. “I think you find more cases about tribal immunity in the west … There’s not a lot that I found in our area of the Fourth Circuit. There’s simply not a lot of Indian reservations here. So it just doesn’t come up as much.”

For his part, Wijewickrama believes the suit is valid.

“In my opinion they can be sued,” said Wijewickrama. “In my opinion, I don’t think sovereign immunity is a viable defense off the reservation. I think it’s an absolute defense on the reservation, but I don’t think it’s a viable defense off the reservation. I think qualified immunity may be an off-the-reservation defense if it is determined that they were acting as law enforcement officers.”

Qualified immunity  is a legal doctrine that protects state and local officials — including law enforcement officers — from being held personally liable for their actions on the job unless they violate a “clearly established constitutional right.”

Jurisdiction is always messy when it comes to what federal law refers to as “Indian Country.” In a case such as Lewis v. Clarke, it’s a mess that forced the Lewis family to go all the way to the Supreme Court in seeking restitution for a serious car crash. For tribal members seeking justice  for family members victimized by non-Indians, it’s a mess that too often allows serial abusers to walk free.

“The complexity of criminal jurisdiction and authority in Indian Country requires interagency at least awareness, if not cooperation, ideally,” said Mills. “In any situation, it’s going to be complex depending on who’s involved, what the crime is, what law enforcement agency responds. When you get into these questions of allegations of wrong behavior or actual wrongdoing, then who’s responsible for that really becomes tricky, separate and apart from the questions of sovereign immunity.”

Even without sovereign immunity in the mix, suing police for their actions on the job isn’t easy — qualified immunity is also a difficult hurdle to jump.

“[Sovereign immunity] is just a different vein of the same challenge that folks face when dealing with law enforcement agencies from any government,” Mills said.

Questions of authority

In response to Kloepfer’s lawsuit , defendants affiliated with the Cherokee County Sheriff’s Office filed motions to dismiss. However, EBCI-associated defendants did not. In two separate filings, the three officers who fired their weapons and the remaining EBCI defendants instead filed answers to the complaint.

While the tribe didn’t concede anything or preclude any avenues for defense by doing so, Boyle said, he found it “interesting” that they’d chosen that avenue. Wijewickrama went a step further, calling it “very strange.”

“Usually, if there’s an assertion of immunity, it’s the first assertion that a party would make in a lawsuit,” said Mills.

In their filed answers to the complaint, both the shooters and the remaining EBCI defendants mentioned sovereign immunity as a defense. However, in neither filing was it the first defense. The EBCI listed sovereign immunity in its third of four listed defenses, in the same paragraph as governmental, qualified and public official immunity — sovereign immunity is second in that list of four immunities — and the shooters listed it second of 10 affirmative defenses, behind qualified/public official immunity.

This choice could be related to questions about under whose authority the tribal officers were acting that night.

Before the SWAT team headed out to Kloepfer’s home during the early morning hours of Dec. 13, 2022, the two agencies signed a mutual assistance agreement. The agreement, provided to The Smoky Mountain News in response to a public records request, states that the tribal officers “shall have the same jurisdiction, power, rights, privileges and immunities as the officers of this agency [CCSO] in addition to those he/she normally possesses.” The document includes a space to cite the state statute under which the agreement falls, but the statute number is left blank. However, it was likely intended to name NCGS 160A-288, which allows the head of any law enforcement agency to temporarily assist another agency if the head of that agency requests help in writing. The Dec. 13 agreement contains language mirroring that statute.

However, the statute does not appear to apply to tribal law enforcement. It specifically defines “law enforcement agency” to mean a county police department, municipal police department or sheriff’s office. Tribal police are not mentioned.  

“In my mind, they are excluded,” said Wijewickrama, though noting this is ultimately an interpretation that a judge must make. “That has not been interpreted,” he added.

Further, it’s not clear that the agreement was done properly from the tribal perspective. Though the tribe’s response denies it, Kloepfer’s lawsuit claims the agreement was invalid under tribal law, which vests authority to enter into mutual aid agreements specifically with the chief of police. The agreement was signed not by Police Chief Carla Neadeau but rather by her husband, Lt. Det. Roger Neadeau Jr.

The tribal officers’ authority could also be recognized had they been cross-sworn into the CCSO or deputized by the sheriff, Wijewickrama said, but thus far no evidence has been presented showing that either of those things happened.

“The other question I have is, if the officers were in their individual capacity and not acting as law enforcement, did they have immunities?” he said. “Do they have access to qualified immunity? Or sovereign immunity? I don’t know. If they don’t, does it then become negligent training, negligent supervision, negligent management on behalf of the tribe letting these officers go on? I don’t know. Nobody’s ever answered that question. And if it is, then is the tribe liable for their conduct? If the tribe is unable to do that, is anybody liable for their conduct except for the actual individuals?”

There are “half a dozen legal issues at play here,” he said, making it a fascinating case from a legal perspective, with the outcome utterly uncertain.

“All this texture goes into the blender,” he said. “Juries decide credibility. Juries decide issues of fact.”

Weighing the risk

Often, claims of excessive force and other complaints against police officers settle before they arrive before a jury. If the tribe feels that it’s in danger of setting an unfavorable precedent on the bounds of sovereign immunity, it may be inclined to settle, Mills said.

“Particularly when you get in front of a court, the court can interpret where it [sovereign immunity] applies, what its scope is, and that presents some real risk, especially where there are some cases where there is a really sympathetic fact pattern that if immunity applies, there’s going to be no remedy,” he said. “And so tribal governments are often in the situation of trying to consider risk of asserting immunity or addressing these situations through other approaches.”

Kloepfer and Mahler have not lived on their property in Cherokee County since the shooting last year. Holly Kays photo

For instance, agreeing to a settlement that avoids setting a precedent.

But the question of whether this case settles or goes before a jury is not up to the defendants. It’s up to Kloepfer, who can choose either to accept an offer or to say no and wait for a jury to decide. There’s never any telling what a jury may do, especially considering that, unlike in state court, federal court does not have a set-in-stone cap on damages.

Once a jury makes its decision, there’s always the possibility of appeal.

“Any number of variables could occur,” said Boyle. “But if it goes up on appeal to the Fourth Circuit, and the Fourth Circuit makes rulings, then yes, we’ll probably set some precedential binding authority in this circuit.”

Attorney Adam Peoples, who is representing the three CIPD officers who fired at Kloepfer, declined to comment. Attorneys representing the remaining EBCI defendants did not reply to a request for comment. A State Bureau of Investigation probe into the shooting is still ongoing.