Fletcher Preview of Lewis v. Clarke

Here is “Supreme Court case could expose Indian tribes to new legal risks” at The Conversation.


One would be tempted to think this is a case about fairness, about guaranteeing a forum for non-Indians to sue tribal employees who might be cloaked in a tribe’s immunity from the suit. In my opinion, fairness to the Lewis couple, however, comes at the expense of fairness to the tribe.

Recall that the tribe does provide a forum to resolve personal injury claims against it in tribal court, but with a one year limitations period. Under that law, the Mohegan tribal court has confirmed awards against tribal police officers; indeed, the tribe likely has settled thousands of claims over the years.

I have long argued that Indian tribes should provide an adequate forum to address the negligent actions of their employees. The Mohegan tribe has done so here by establishing a tribal court and a legal process for resolving personal injury claims. In fact, Mohegan was one of the earliest tribes to start doing so, way back in the 1990s. But personal injury lawyers have complained about Mohegan law because it bars punitive damages and other doctrines that can balloon judgment awards.


Background materials on the case are here.