Today, the U.S. Supreme Court issued its decision in Lewis v. Clarke, a case concerning whether tribal sovereign immunity extended to a tribal employee sued in his individual capacity in the wake of an off-reservation car accident. Reversing the Connecticut Supreme Court, a unanimous Court found that the tribal employee could not receive the benefit of the tribe’s sovereign immunity, and remanded.
Although a loss for the Mohegan tribe—and potentially disruptive for business practices in Indian Country in the immediate term, as Matthew Fletcher notes—the decision’s doctrinal implications for Indian law are relatively limited. Unlike the Court’s Bay Mills decision a couple years ago, which threatened to diminish tribal sovereign immunity below the protections afforded states and the federal governments absent waiver, this decision explicitly analogizes among the different forms of immunity: “The protection offered by tribal sovereign immunity here is no broader than the protection offered by state or federal sovereign immunity.” (op. slip at 8). In short, the decision treats tribal sovereign immunity seriously and legitimately—a small but important accomplishment, given that in previous opinions the Court upheld precedent only while holding its nose, denigrating tribal sovereign immunity as an “accident” and expressing “a fair bit of sympathy” for critiques. The lonely concurrences by Justice Thomas and Justice Ginsburg relitigating old debates underscore the Court’s unwillingness to revisit the outcome in Bay Mills.
As a narrow decision, Lewis v. Clarke leaves many questions open. The Court ducked the question of official immunity, leaving to the lower court the issue of whether tribal employees will, in fact, enjoy the same protections as their counterparts in the state and federal governments. The Court also sidestepped the implications of n.8 from Bay Mills, which suggested that tribal sovereign immunity might not apply when no forum would hear the case; here, the Mohegan Tribe had waived its sovereign immunity in its own court system, but this fact played no role in the Court’s reasoning, which understandably focused on individual capacity suits. These unresolved questions will test whether the Court’s current appetite for tribal sovereign immunity cases continues, or whether, as after Kiowa, it will be nearly two decades before the Court takes another major tribal immunity case.
Gregory Ablavsky is an assistant professor of law at Stanford Law School. His scholarship focuses on early American legal history, particularly on issues of sovereignty, territory, and property in the early American West.