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Litigation | Opinion

Matthew Fletcher: Expect 'uptick' in litigation after Supreme Court decision

Wednesday, May 17, 2017

The dust is starting to settle after the nation's highest court delivered defeat to Indian Country in a dispute that originated at a tribal casino in Connecticut. So now what happens? Professor Matthew L.M. Fletcher, a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians, expects the U.S. Supreme Court decision in Lewis v. Clarke to lead to more litigation against tribal employees and officials:

The initial area in which tribal exposure to liability may be expanded under Lewis is in state courts. Indian tribes that had been able to limit damages and time frames, and govern the venue, for even off-reservation torts and other possible damages claims through tort claims ordinances may face state courts suits. State tort law is, unlike most other areas of the common law, fairly local. Some states have restrictive liability exposure and others more expansive. Tribes, who have no say in state tort laws whatsoever, may be forced into state tort regimes against their will when they choose to indemnify their employees. Lewis could also give plaintiffs two cracks at deep pockets, meaning that a plaintiff might suit both the tribe under a tort claims ordinance and the tribal employee in state court. Tribes may reconsider their tort claims ordinances, a potentially very regressive move under established nation-building theory. Tribes that have purchased liability insurance with the parameters set by their tort claims ordinances may be forced to renegotiate with their insurer.
Second, Lewis involved an off-reservation incident, but the court’s reasoning does not limit individual liability suits to off-reservation actions. For reservations in Public Law 280-type states, which constitute about 70 percent of all reservations, that might not be significant expansion, as every tort claim against a tribal employee could be brought in state court. But for the remaining tribes, precedents like Williams v. Lee generally bar state court jurisdiction over civil suits brought against Indians or tribes arising in Indian country. Or do they, post-Lewis? Indian tribes may soon be defending a rise in individual capacity suits against nonmember tribal employees.
The next area of potential new exposure is in the area of official capacity actions. State and federal officials are governed by official immunity and qualified official immunity doctrines. Whether tribal officials have the same protections remains open after the Lewis decision.

Read More on the Story:
Fletcher on Law360: “A Look At The Impact Of Lewis V. Clarke Thus Far” (Turtle Talk 5/17)

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