Matthew Fletcher: 'Gamesmanship' brings defeat to Indian Country at Supreme Court

The Mohegan Tribe owns and operates the Mohegan Sun gaming facility in Uncasville, Connecticut. Photo: Mohegan Sun

Professor Matthew L.M. Fletcher, a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians, already warned of the negative impacts facing Indian Country with a sovereign immunity case before the U.S. Supreme Court. In a post on Turtle Talk, he offers from thoughts on the decision in Lewis v. Clarke, which he said came about as a result of "gamesmanship" on behalf of one of the parties:
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.

Read More on the Story:
Matthew L.M. Fletcher: Initial Observations about Lewis v. Clarke (Turtle Talk 4/25)

U.S. Supreme Court Decision:
Syllabus [Summary of Outcome] | Opinion [Sotomayor] | Concurrence [Thomas] | Concurrence [Ginsburg]

U.S. Supreme Court Documents:
Docket Sheet No. 15-1500 | Questions Presented | Oral Argument Transcript

Connecticut Supreme Court Decision:
Lewis v. Clarke (March 15, 2016)

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