This was the best possible result in this case (a narrow remand). Justice Sotomayor’s opinion keeps tribal employees on equal footing with federal and state employees and decides the import of indemnification provisions – really have nothing to do with Indian law and instead having everything to do with government employee indemnification law. The result seems to be a reasonable limiting principle for the Court.
The Court also left open the official immunity arguments (upon which amici focused) because those were not raised by Clarke in his motion to dismiss. The record didn’t have findings on that, but the NCAI/States/Tribes amici brief laid out the arguments as an ‘alternative theory’ as to why the Connecticut Supreme Court had been right in the result.
It is reasonable to anticipate that Clarke will now argue those matters on remand. And this case will go back to Connecticut District Court, with the Lewises now divorced and vastly undercutting their loss of consortium claims, such that the remand may well go away quickly in settlement before it even begins.
I don’t see that tribes or tribal employees lose any ground as a result of this opinion. Importantly, the official immunity arguments were not touched by the Court (per footnote 2), and I don’t see the majority opinion as saying anything negative for tribes’ role in our federalism.
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Opinion and materials here.
Turtle Talk 