Fletcher on Law360: “A Look At The Impact Of Lewis V. Clarke Thus Far”

Written by: Matthew Fletcher

Primary Source : Turtle Talk, May 17, 2017.


In Lewis v. Clarke, the U.S. Supreme Court held that individual capacity suits against tribal employees are not cloaked by an Indian tribe’s sovereign immunity. As most Indian tribes have already acquired general liability insurance to cover the tortious actions of their employees, the ruling might have little impact. But the breadth of the court’s opinion should give tribal interests pause to reflect on just how far this decision reaches.

Lewis involved a tort claim filed in state court against a limousine driver employed by an Indian tribe arising from an off-reservation accident. The tort victims sued the driver in the driver’s individual capacity, seeking money damages. The court held that an individual capacity suit for money damages against a tribal employee is not a suit a tribal entity cloaked in immunity, reasoning that the driver would liable, not the tribe. The tribe had already agreed to indemnify its employees, but had crafted a waiver of tribal immunity to force those claims to tribal court, where damages caps and a shorter statute of limitations controlled. Lewis partially renders tribal tort claims ordinances inoperative.

The precursor to Lewis was the Ninth Circuit’s decision in Maxwell v. County of San Diego. There, the court held that individual capacity suits against tribally employed emergency responders could proceed, even where the responders arrived on the scene in accordance with an intergovernmental public safety agreement. The affected tribe vigorously argued that their employees’ exposure to liability could undermine recently established Indian country governance relationships, but to no avail.

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. Imagine a heated tribal council meeting where one elected official makes a statement that potential defames another elected official. An analogous case is currently pending in the California Court of Appeals based on Maxwell. Before Lewis, the tribal elected official who made the statement could assert the general federal Indian law principle that state and federal courts have no jurisdiction over the internal affairs of the tribal government. A federal or state official making the same statement likely would be governed by official immunity. But, potentially, the federal Indian law bar might dissipate in an individual capacity suit because the tribe’s interests are not the same as an individual’s interest.

Penetration into the internal affairs of Indian tribes might already be underway in the Nooksack Tribe debacle. There, the tribal council a few years back tried to disenroll several hundred tribal members. Barred from doing so by the tribal court, the tribal council removed a tribal judge and attempted to undermine the judiciary. When the council’s term expired, the disenrollment supporters canceled the next election and refused to leave office. The federal government recently decided to no longer recognize the holdover council’s actions, leaving matters in a terrible stalemate. Nooksack tribal members brought a RICO suit against the holdover council members, an individual capacity suit. And in the first court to apply Lewis, the federal court allowed that suit to proceed. The holdover council, to be sure, is far from a good faith actor, and the Nooksack tribal members are deeply sympathetic group. But a federal court individual capacity suit against tribal elected officials would be the most unprecedented intrusion in internal tribal governance matters since the termination era of the 1950s. On the other hand, tribal sovereign immunity, coupled with federal and state government deference to tribal self-determination in the last 50 years, has unfortunately encouraged some tribal officials to engage in abuses like a Nooksack without fear of being held accountable.

The breadth of the court’s opinion surely will encourage plaintiffs’ attorneys to test or even stretch the holding. Indian tribes can expect a bunch of new kinds of suits. General liability premiums for Indian tribes might be in flux for a time, but over time the new liability landscape will settle down. In the end, the impact likely will be minimal, but for a time, expect a significant uptick in litigation.

Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law. Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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Matthew Fletcher
Matthew L.M. Fletcher is Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He is the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians, located in Peshawbestown, Michigan. In 2010, Professor Fletcher was elected to the American Law Institute.