Here is the order list.
Lower court materials are here.
Supreme Court
Initial Observations about Lewis v. Clarke
Opinion and materials here.
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.
Long term, things probably will settle down. Tribes already insure themselves from the actions of their employees. Maybe the cost of business will go up some, but I don’t anticipate terrific impacts there. Just a lot of uncertainty for a few years until everyone’s used to the new regime.
As should be unsurprising to TT readers, this case involved a confluence of Justices that disapprove of governmental immunity (Ginsburg), the conservative wing of the Court that almost never rules in favor of tribal interests, and bad optics for tribal interests. Moreover, anyone who cares about government and commercial accountability for bad actions (as one should expect from Justices Sotomayor and Ginsburg) should be happy. It just smells off that SCOTUS as an institution seems to strive to protect private commercial actors from suits but does a 180 with tribal commercial activities.
I admit to being disappointed the Court cared not at all that the Tribe had set up a tribal court process to resolve these claims. This was just straight up gamesmanship by the plaintiffs’ counsel, who might have waited on purpose to bring this claim in state court where there was a two year statute of limitations as opposed to the Mohegan one year statute. There, I said it. Oh well. All the effort that tribes made to set up tort claims ordinances might have been a significant waste of time and effort. It remains to be seen.
Unanimous SCOTUS Rules Against Tribe in Lewis v. Clarke
U.S. Supreme Court Reverses and Remands Lewis v. Clarke
Opinion here.
JUSTICE SOTOMAYOR delivered the opinion of the Court.
Indian tribes are generally entitled to immunity from suit. This Court has considered the scope of that immunity in a number of circumstances. This case presents an ordinary negligence action brought against a tribal employee in state court under state law. We granted certiorari to resolve whether an Indian tribe’s sovereign immunity bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment and for which the employees are indemnified by the tribe.
We hold that, in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated. That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity. We hold further that an indemnification provision does not extend a tribe’s sovereign immunity where it otherwise would not reach. Accordingly, we reverse and remand.
Previous posts, briefs, and other documents here.
Cert Petition Filed in Case Challenging Constitutionality of SBA Section 8(a)
Here is the petition in Rothe v. Dept. of Defense:
Questions presented:
1. Whether a statutory program that requires an agency to distribute benefits to “socially disadvantaged individuals,” and defines “socially disadvantaged” in terms of membership in certain racial minority groups, classifies on the basis of race and is thus subject to strict scrutiny.2. Whether a statute that may not classify exclusively on the basis of race, but uses race as a factor in determining eligibility for benefits, is subject to strict scrutiny.
Lower court opinion here.
SCOTUS Denies Cert in Sun v. Mashantucket
Elie Mystal on the Chief Justice
Here is “John Roberts, Silent During The Garland Process, Suddenly Worries About Partisanship.”
An excerpt:
When Mitch McConnell decided that black presidents only get to be president for seven years and refused to hold a hearing on Barack Obama’s nominee to the Supreme Court, there was only one man in the country who could have stopped him: Chief Justice John Roberts. Roberts could have spoken up. He could have urged the Senate to perform its Constitutional duty. He could have explained how the Senate’s actions were hurting the Court.
Instead, he said nothing.
WaPo: “If Gorsuch is like his colleagues, he’ll constantly interrupt the female justices”
SCOTUS Denies Cert in Citizens Against Reservation Shopping v. Zinke
Here is today’s order list.
Gorsuch: “Tribes are . . . Sovereign Nations”
Here is a link to a short clip created by a user on C-SPAN from Judge Gorsuch’s testimony. Judge Gorsuch mentions his decisions in cases involving the Ute Tribe and the Osage Tribe. Thanks to John Dossett.
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