Lewis V Clarke: Matthew Fletcher on the Implications of the Erosion of Sovereignty Protections

Professor Matthew Fletcher, respected editor at Turtle Talk Blog gives his observations on the meaning of Lewis v Clarke, in which the Supreme Court struck down some sovereignty protections .  Are these cracks in the sovereignty dam...because some of the practices of corrupt tribes are being exposed?

Read his essay, and you should be checking his blog every day.



The initial impact could be very big. The holding is pretty broad, bringing in the doctrine of official immunity to the tribal context without the same grounding or context as state and federal official immunity doctrines. Moreover, there is no on, off reservation distinction. So on-rez torts might be an issue.

I anticipate dozens of plaintiffs’ lawyers packaging complaints against tribal employees on a wide variety of issues to test how wide the lower courts will interpret this decisions. Civil rights, contract breaches, trespass to property, and of course tort claims. I suppose the real question is whether any tort claims against tribal officials anywhere involve a tribe’s sovereign interest. I imagine insurance companies will be calling their tribal insured right quick, and vice versa.

Another open question is whether nonmember employees sued for tort in Indian country can be sued in state courts. I think not under precedents governing Indian country suits where a tribal defendant is present, but I’m not so sure about nonmember employees. Could be a lot of litigation about questions like these.

Long term, things probably will settle down. Tribes already insure themselves from the actions of their employees. Maybe the cost of business will go up some, but I don’t anticipate terrific impacts there. Just a lot of uncertainty for a few years until everyone’s used to the new regime.

As should be unsurprising to TT readers, this case involved a confluence of Justices that disapprove of governmental immunity (Ginsburg), the conservative wing of the Court that almost never rules in favor of tribal interests, and bad optics for tribal interests. Moreover, anyone who cares about government and commercial accountability for bad actions (as one should expect from Justices Sotomayor and Ginsburg) should be happy. It just smells off that SCOTUS as an institution seems to strive to protect private commercial actors from suits but does a 180 with tribal commercial activities.

I admit to being disappointed the Court cared not at all that the Tribe had set up a tribal court process to resolve these claims. This was just straight up gamesmanship by the plaintiffs’ counsel, who might have waited on purpose to bring this claim in state court where there was a two year statute of limitations as opposed to the Mohegan one year statute. There, I said it. Oh well. All the effort that tribes made to set up tort claims ordinances might have been a significant waste of time and effort. It remains to be seen.