Supreme Court declines to hear yet another Indian Country case

The Rainmaker statue at the Foxwoods Resort Casino in Mashantucket, Connecticut. Photo by Mark Brenan

In a positive move for tribal interests, the U.S. Supreme Court has refused to hear another Indian gaming case.

Without comment, the justices rejected a petition in Sun v. Mashantucket Pequot Gaming Enterprise The action, which came in an order list issued on Monday morning, means a group of gamblers won't be able to sue the Mashantucket Pequot Tribal Nation in connection with over $2 million in disputed deposits and earnings at the Foxwoods Resort Casino in Connecticut.

But while the court is finally working with a full slate of nine justices, the newest one didn't participate in the handling of the petition. Neil Gorsuch was only sworn into office last week and he didn't consider any of the matters in the order list, according to footnote in the 16-page document.

Gorsuch, however, did participate in his first oral arguments. The court took up three cases on Monday and will be hearing two more on Tuesday and another two on Wednesday, according to the calendar for this week.

The justices are also meeting this Friday for a closed-door conference. Yet another Indian Country case -- Patchak v. Zinke is up for consideration, according to Docket No. 16-498.

At issue is whether David Patchak, non-Indian man who lives three miles from the casino owned by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, can sue the Bureau of Indian Affairs long after the gaming site in Michigan was placed in trust. The Trump administration has urged the justices to reject the petition and affirm a lower court victory in favor of tribal interests.

The justices are expected to announce next week, in an order list, whether they will hear the dispute.

The court, historically, has been reluctant to take up cases connected to tribal casinos. Since the Indian Gaming Regulatory Act became law in 1988, only a handful have made it to the justices.

The outcome in Michigan v. Bay Mills Indian Community went in favor of tribes in 2014 while Chickasaw Nation v. US from 2001 went against tribal interests. Even earlier, with the 1996 decision in Seminole Tribe v. Florida, the court went against the Seminole Tribe, whose leaders tried to sue the state of Florida for refusing to enter into gaming negotiations. The two parties eventually reached an agreement although a new dispute has sparked litigation.

More recently, the court refused to hear Citizens Against Reservation Shopping v. Zinke. The favorable development ensures that the Cowlitz Tribe can open its long-awaited gaming facility in Washington, known as ilani Casino Resort, a week from now on April 24. The Trump administration had called on the justices to reject the case.

Indianz.Com on SoundCloud: U.S. Supreme Court oral argument in Lewis v. Clarke

Overall, the court's current term, which began in October, has been uneventful for Indian Country -- only one significant case has been accepted. Arguments in Lewis v. Clarke took place on January 9 and the outcome will determine whether an employee of the Mohegan Tribe can be sued in connection with a vehicle accident in Connecticut.

Although the case is tied to the tribe's gaming enterprise because the defendant was employed at the Mohegan Sun, the underlying issue deals with sovereignty. Indian Country interests are hoping the court will extend the tribe's immunity to employees acting in course of their duties.

"Encouraging voluntary waivers of sovereign immunity, through enforcement, is the best way to provide recourse to future plaintiffs while at the same time according respect to tribal sovereignty," National Congress of American Indians, the largest inter-tribal organization, stated in a brief to the nation's highest court.

It's not clear when the justices will issue a decision but Gorsuch won't be participating because he wasn't on the court at the time of the argument in January. Only eight members heard the case.

The court's last tribal immunity case was a close one. By a 5-4 vote, the justices held that the state of Michigan could not sue the Bay Mills Indian Community in connection with a disputed casino. The court determined that the tribe's sovereignty had not been abrogated through IGRA or by other means.

Tribes and their advocates believe Gorsuch, who replaced Scalia on the court, will be more open to hearing their side of the story based on his 10-year record on the 10th Circuit Court of Appeals. According to a comprehensive review of his decisions, the new justice sided with tribes in five out of six sovereign immunity cases.

The late Antonin Scalia, on the other hand, almost always went against tribal interests. He was part of the four-member minority in Bay Mills that would have allowed the Bay Mills Indian Community to be sued by Michigan.

The five-member majority from Bay Mills remains on the court so the conservative-leaning justices appear to have less of an opportunity to do the same in Lewis v. Clarke. But in the event of a tie, a deadlock would represent a positive development because a lower court victory in favor of Clarke, the Mohegan Sun employee, would stand untouched.

Ties are rare but not unprecedented. Following Scalia's death last year, the justices were unable to reach a decision in a closely-watched tribal jurisdiction case. The outcome in Dollar General Corporation v. Mississippi Band of Choctaw Indians benefited tribal interests because a lower court victory in favor of the Mississippi Band of Choctaw Indians went untouched.

Native American Rights Fund Documents:
Nomination of Neil Gorsuch to the Supreme Court of the United States – An Indian Law Perspective | Neil Gorsuch: Summary of Indian Law Cases

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