May 9, 2017
Lewis v. Clarke: Good Losses and Bad Losses
Lewis v. Clarke1 involves a run-of-the-mill car accident: a Mohegan Tribal Gaming Authority limousine rear-ended another car more than 70 miles from the tribe’s reservation and casino.2 The limousine was driven by a non-tribal member, William Clarke, employed by the tribe, and the collision left the car Brian and Michelle Lewis were driving stuck on top of a concrete barrier that divides a stretch of Interstate 95 in Norwalk, Connecticut.3 Tort claims involving automobile accidents are hardly the sort of cases that one thinks of as part of the Supreme Court docket. But the Mohegan Tribe convinced the Connecticut Supreme Court that the victims’ suit was barred by the tribes’ sovereign immunity—a holding that arguably extended tribal sovereign immunity and invited Supreme Court review.4 Neal Katyal, one of the most experienced Supreme Court litigators, defended the tribe’s position before the Court.5 Mr. Katyal argued that the tribe, not the driver, was the real party in interest because it promised to fully indemnify all employees for claims arising out of work done within the scope of their employment.6 Additionally, as the Brief for the Respondent noted, the tribe established its own Gaming Disputes Court for tort victims to seek redress, and substantial settlement involving a different suit arising out of the same accident had already been reached through that tribal mechanism.7
However, the tribe’s arguments were not enough. The Court held, 8-0, against the tribe, with the foremost champion of Indian interests on the Court today, Justice Sotomayor, writing the opinion for the undivided Court.8 There was not a single dissent, although Justices Ginsburg and Thomas wrote separate concurrences to argue that the Court should use the decision to reverse elements of Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc.9 and Michigan v. Bay Mills Indian Community10 when it comes to off-reservation commercial activities involving non-tribal members. In short, the Court seemed to have little difficulty rejecting the tribe’s sovereign immunity arguments; tellingly, Justice Sotomayor’s opinion was barely twelve pages long and Justices Ginsburg and Thomas kept their concurrences to a single paragraph each.
In many respects neither the length of the opinion nor the outcome of the case is surprising. Justice Brennan has reportedly dismissed Indian law cases as “chickenshit” cases, and he was not alone in viewing Indian law cases before the Court as “peewee” cases.11 The Court previously held in Strate v. A-1 Contractors,12 that tribal courts did not have jurisdiction over accidents involving non-tribal members on a state highway, even when the accident took place within the reservation borders.13 Although Strate addresses a different matter than sovereign immunity, the issue in Lewis, it does show the reluctance of the Court to treat tribal justice systems with respect. During oral argument, prompted by a question from Chief Justice Roberts, petitioners’ attorney ran through the ways that the Mohegan Gaming Dispute Court limits claims in ways Connecticut courts do not—most notably that punitive damages are not available and there is no right to a jury trial.14 While Strate, however, is surely informed by the racist view that tribes cannot be trusted to handle appropriately even cases arising out of routine traffic accidents,15 it is harder to lay such a charge against the Court’s handling of Lewis. Strong tribal sovereignty advocates might hope that all cases involving tribal employees—regardless of the location of the events underlying the dispute—should be heard by tribal courts or treated as the equivalent of foreign diplomats. But to the extent to which this hardline position denies the interconnectedness of tribal and non-Indian life, as well as the significance of geographic boundaries, such a position strains credibility.16 That the Court held that a state tort claim against the driver of a tribal vehicle in his individual capacity, arising far removed from a reservation on a major interstate should not be barred by sovereign immunity might be yet another mark in the Indian law loss column, but it is not a particularly troubling loss.
If you are a betting person, for at least a generation it has been best to bet against tribes when it comes to Indian law cases heard by the U.S. Supreme Court.17 Indians do win occasionally (for example, in Bay Mills Indian Community18), but those wins are surprising precisely because Indians lose most cases. Yet there are losses, and there are losses. What is frustrating about Justice Sotomayor’s opinion in Lewis is not the holding itself, but that when placed alongside much bigger losses, Lewis helps illustrate the Court’s hostility to Indian sovereignty.
To illustrate what a bad loss looks like, Nevada v. Hicks19 is as good as any other. The case arose after state game wardens twice entered Floyd Hicks’ home on the Fallon Paiute-Shoshone Indian Reservation to search for evidence that he had been wrongfully killing California bighorn sheep, a protected species. The wardens found only the head of an unprotected Rocky Mountain bighorn sheep, but Mr. Hicks brought a civil suit in tribal court alleging, among other things, that the agents damaged his sheep heads in the course of their search. The Supreme Court held, 9-0, that tribal courts do not have jurisdiction to hear civil claims against state officials executing process, including searches, related to off reservation violations of state law.20
The holding in Lewis makes sense if reservation boundaries and the possibility of individual capacity claims are taken seriously. What makes the decision hard to swallow is that Strate and Hicks did not take the reservation boundary (or individual capacity claims) seriously. Strate invented the fiction that state roads through a reservation should be treated like state land, and Hicks prohibited tribal courts from resolving claims of harm to tribal members in their homes within the reservation. In both cases, the Supreme Court found theories upon which to treat reservations and Indian nations as secondary to the power of states to adjudicate disputes.
It is important to not overstate the importance of reservation boundaries and land status. One case that does not get that much attention but that I find one of the most infuriating of the Indian law losses is Atkinson Trading Co. v. Shirley,21 in which the Supreme Court blocked the Navajo Nation from imposing a hotel occupancy tax upon a hotel located on a pocket of fee land within the reservation. The Court focused on the fact that the hotel was on fee land and not trust land, but my view is that the Court fundamentally failed to understand how life and services on the reservation work. So, reservation boundaries and land status should not be fully dispositive—there are instances in which tribal sovereignty ought to extend beyond the original reservation boundary and also instances in which federal authority within the reservation is probably appropriate—but it would be nice if there was greater symmetry underlying the Court’s rejection of sovereign immunity in Lewis and the Court’s previous anti-tribal sovereignty holdings.
Ultimately, when wins are infrequent, keeping score is often a matter of distinguishing bad losses from good losses. Strate, Hicks, and, I would argue, Atkinson Trading Co. are bad losses; Lewis is a relatively good loss.
Ezra Rosser is a Professor of Law at American University Washington College of Law, where he teaches Federal Indian Law, Poverty Law, Land Use, and Property Law. His research focuses on poverty and on tribal economic development. Previously he served as a visiting professor at Ritsumeiken University, a 1665 Fellow at Harvard University, a visiting scholar at Yale Law School, and a Westerfield Fellow at Loyola University New Orleans School of Law.
- No. 15-1500, slip op. (U.S. Apr. 25, 2017).
- See Brief for the Petitioner-Appellant at 2, Lewis v. Clarke, No. 15-1500 (U.S. Nov. 14, 2016).
- See id. at 3.
- See Lewis v. Clarke, 135 A.3d 677 (Conn. 2016).
- According to his Hogan and Lovells profile page, Mr. Katyal has argued 34 cases before the Supreme Court. See Biography of Neal Katyal, Partner, https://www.hoganlovells.com/en/neal-katyal (last visited May 9, 2017).
- See Brief for the Respondent-Appellee at 9, Lewis v. Clarke, No. 15-1500 (U.S. Dec. 14, 2016).
- See id. at 7.
- See Justice Sotomayor Studied Indian Law after Joining Top Court, Indianz.com (Sept. 22, 2014), https://www.indianz.com/News/2014/09/22/justice-sotomayor-studied-indi.asp.
- 523 U.S. 751 (1997).
- 134 S. Ct. 2024 (2014).
- Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. L. Rev. 381, 383 (1993).
- 520 U.S. 438 (1997).
- See Strate, 520 U.S. at 442.
- See Transcript of Oral Argument at 7–8, Lewis v. Clark, No. 15-1500 (U.S. Apr. 25, 2017).
- See, e.g., Robert A. Williams, Jr., Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (2005) (discussing how past and present racism informs the Supreme Court’s treatment of Indian sovereignty).
- It is worth noting that nothing here is meant to disparage hard-line, pro-sovereignty positions. I have taken a number of such positions in the past and been critical of those who seek an accommodation between tribal rights and the situation on the ground. See Ezra Rosser, Ahistorical Indians and Reservation Resources, 40 Envt’l L. 437 (2010); Ezra Rosser, Caution, Cooperative Agreements, and the Actual State of Things: A Reply to Professor Fletcher, 42 Tulsa L. Rev. 57 (2006).
- For more on the Indian loss record before the Supreme Court, see Matthew L. M. Fletcher, The Supreme Court’s Indian Problem, 59 Hastings L.J. 579, 587–88 (2008); David H. Getches, Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice, and Mainstream Values, 86 Minn. L. Rev. 267, 280 (2001).
- 134 S. Ct. 2024 (2014).
- 533 U.S. 353 (2001).
- See Hicks, 533 U.S. at 364.
- 532 U.S. 645 (2001).
Recommended Citation Ezra Rosser, Response, Lewis v.Clarke: Good Losses and Bad Losses, Geo. Wash. L. Rev. On the Docket (May 9, 2017), http://www.gwlr.org/lewis-v-clarke-good-losses-and-bad-losses/.