A rally at the U.S. Supreme Court on December 7, 2015. Photo by Indianz.Com (CC BY-NC-SA 4.0)

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Supreme Court opens new term with tribal immunity on the docket

Tuesday, October 4, 2016

The U.S. Supreme Court is back in session but remains short-handed as one Indian law case looms on the docket.

With just eight justices at work, the new term likely won't be as explosive as last year's, when the court heard a record four Indian law cases. Tribal interests secured clear victories in three of those cases and even the fourth wasn't a complete loss.

But Indian Country will still be still paying attention to Lewis v. Clarke, a sovereign immunity case. The last time the issue came before the justices resulted in a 5-4 split, underscoring the dangers facing tribal interests in the nation's highest court.

"It appears that, again, in the upcoming U.S. Supreme Court term, tribal sovereignty will be front and center," observed Tim Purdon, a former U.S. Attorney from North Dakota who is now in private practice.

The outcome in the case will determine whether the sovereign immunity of the Mohegan Tribe extends to an employee of its gaming enterprise. Connecticut's top court agreed that it did in a unanimous decision issued in March.

A non-Indian couple hopes to convince the Supreme Court to go in another direction. Brian and Michelle Lewis suffered injuries during an October 2011 accident they say was caused by William Clarke, who was a limousine driver for the Mohegan Tribal Gaming Authority at the time.

In addition to suing Clarke in state court, the Lewises named the authority as a defendant. But they took the tribe off the case out of fear of losing on the grounds of sovereign immunity.

They ended up losing anyway. In its unanimous decision, the Connecticut Supreme Court said Clarke "was acting within the scope of his employment when the accident that injured the plaintiffs occurred."

"It is well established that '[t]he doctrine of tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority,'" Justice Dennis G. Eveleigh wrote for the majority, citing a slew of cases in the state and federal courts.

Despite the long string of cases, it looks like the Supreme Court has never directly ruled on the issue presented in Lewis v. Clarke. And while the Mohegans are not involved in the dispute, the outcome will likely affect one of their close partners -- the Tunica-Biloxi Tribe of Louisiana.

The Tunica-Biloxi Gaming Authority has asked the Supreme Court to hear a similar case in which a state court held that employees of the Paragon Casino Resort could be held liable in connection with a fatal accident in July 2013. That's essentially the opposite conclusion that was reached in the Connecticut case.

"We find that sovereign immunity in this case does not bar the suit against the Paragon Casino employees in their individual capacities," Judge Billy Howard Ezell of the Louisiana Court of Appeal, Third Circuit, wrote in a December 2015 decision.

The petition in Tunica-Biloxi Gaming Authority v. Zaunbrecher was ready for consideration last week but the justices instead accepted the Connecticut case. The petition is likely to remain on hold until Lewis v. Clarke is decided.

The Mohegan Tribal Gaming Authority is providing consulting and other services to the Paragon Casino as part of an agreement with the Tunica-Biloxi Tribe. Financial terms have not been disclosed.

The Supreme Court last took up tribal immunity Michigan v. Bay Mills Indian Community, a closely-watched case. By a narrow 5 to 4 vote in May 2014, the justices held that the state of Michigan could not sue the Bay Mills Indian Community because neither the tribe, nor Congress, waived its sovereignty.

Oral arguments in Lewis v. Clarke have not been scheduled but could take place later this year or in early 2017. Regardless of the date, the court is still likely to be down to eight justices following the death of Antonin Scalia in February.

Scalia was among the four justices who went against Bay Mills in the 2014 case. The three other justices who were in the minority -- Clarence Thomas, Ruth Bader Ginsburg and Samuel Alito -- remain on the court.

Connecticut Supreme Court Decision:
Lewis v. Clarke (March 15, 2016)

U.S. Supreme Court Decision:
Michigan v. Bay Mills Indian Community (May 27, 2014)