Opinion

Harold Monteau: Supreme Court stirs smelly pot of fish head stew with tribal decision

Friday, April 28, 2017

A gaming table at Mohegan Sun, owned and operated by the Mohegan Tribe in Uncasville, Connecticut. Photo: David Zeuthen

How will the decision in Lewis v. Clarke impact tribes and their employees? Harold Monteau, a citizen of the Chippewa Cree Tribe, offers his take on the new sovereignty ruling from the nation's highest court:

The Supreme Court has stirred a smelly pot of Fish Head Stew and will not be able to put the lid back on the boiling over pot. (Apologies to Yakima relatives.) It does not bode well for the tribes for the Supreme Court to “tinker” with the Doctrine of Tribal Sovereign Immunity which predates the Federal and State Sovereign Immunity to which the SCOTUS analogized in making its decision. And, this decision is not consistent with its Bay Mills decision whereby the Supreme Court said that the tribe’s actions off the reservation, in the conduct of commercial activity, did not waive its immunity from State Court actions. In dictum, that Supreme Court panel advised the State to go after individual tribal employees who were running the tribe’s commercial activity (off reservation gaming) as the court advised they would not be entitled to the protection of Tribal Sovereign Immunity for activities off the reservation that violated State Law. As one of my colleagues put it “the Supreme Court has called the tribes’ bluff” made in winning the Bay Mills decision and the court’s hand trumps the tribes heretofore winning hand.
Tribal Employees are now at risk for their conduct in carrying out their scope of duties under tribal employment off the reservation, that coincidentally amounts to a compensable injury under State Law. Theoretically, if the employee’s duties to the tribal employer, coincidentally, amount to a violation of State Criminal Law, could he be arrested? What other activities that Tribal Employees and Officers conduct off the reservation may violate State Law? What about internet transactions conducted by Tribal Employees on the Reservation that supposedly violate the State Law at the other end of the Internet transaction? What happens with the whole “prohibitory versus permitted but regulated” analysis of Cabazon?

Read More on the Story:
Harold Monteau: Supreme Court on Tribal Sovereign Immunity: a Smelly Pot of Fish Head Stew (Indian Country Media Network 4/28)

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