Wednesday, April 26, 2017

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.


'aamokat said...

Really, how many of us really don't care that much about the erosion of sovereignty when so many tribes hide behind it and get away with unlawfully disenrolling people? To me, sovereignty sounds like a dirty word.

Anonymous said...

***ALL disenrolled members from all tribes need to keep raising awareness even if its just a post a month on social media or a letter a month to Congress, senators, tribes. We should all be sharing ricks posts and stories from his site! Tribes who are against this evil need to stand with the disenrolled. We need to keep getting our stories to big media corporations. I know it seems like nothing we do does anything but a post or a letter will let people know of this evil thats happening in Indian country. Even if its just one person. Justice comes in many different ways. Aho

Reinstatement_Restitution said...

This particular decision appears to protect victims of offenses by tribal employees by denying them the protection of sovereign immunity when they are personally responsible. It actually makes sense when you read it, and there is no reason that tribal employees should be immune from prosecution simply because they are employed by a tribe. So you drive a tribal vehicle, get into an accident, and are held personally responsible. The tribe wasn't driving, paying damages doesn't affect the government of the tribe, and their sovereign independence remains intact.

Looks like justice is served. Sovereignty should not be abused to protect offenders.