Supreme Court accepts case involving Mohegan Tribe casino employee

Thursday, September 29, 2016

Native women led a rally at the U.S. Supreme Court on December 7, 2015. Photo by Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License
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The U.S. Supreme Court is still missing one justice but that isn't stopping the remaining members from getting back to work.

The court's new term officially starts next week and the justices have already added an Indian law dispute to the docket. In an order on Monday, they agreed to hear Lewis v. Clarke, a sovereign immunity case involving an employee of the Mohegan Tribe.

The tribe, based in Connecticut, is not a party to the lawsuit. The plaintiffs -- a non-Indian couple who suffered injuries during an an October 2011 accident -- removed the tribe as a defendant out of fear of losing the case due to sovereign immunity.

But Brian and Michelle Lewis ended up losing anyway. The tribe's sovereign immunity extends to an employee of the Mohegan Sun, the Connecticut Supreme Court ruled in March.

The couple is now hoping the Supreme Court will overturn that decision and allow them to proceed with a lawsuit against William Clarke, who was a limousine driver for the tribe's casino at the time of the accident.

The Supreme Court last took up tribal immunity in Michigan v. Bay Mills Indian Community. By a 5-4 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.

The court has since declined to hear other sovereign immunity cases but the justices apparently think Lewis v. Clarke deserves additional attention since it involves a tribal employee rather than a tribe itself.

Oral arguments have yet to be scheduled but are likely to occur without a ninth justice on the court. That leaves open the possibility for a 4-4 deadlock, which would represent a victory for William Clarke because it would leave the Connecticut decision intact.

Still, the outcome in Bay Mills appears to tip the scales in favor of Clarke because the five justices who affirmed tribal immunity in that case are still on the court. The four who were in the minority have dropped to three with the passing of Antonin Scalia in February.

With just eight justices, the Supreme Court deadlocked on Dollar General Corporation v. Mississippi Band of Choctaw Indians, a closely-watched tribal jurisdiction case in June. The outcome was the best possible one for the Mississippi Band of Choctaw Indians because it left intact a lower court decision that requires Dollar General, a publicly-traded company that reported $18.9 billion in net sales in 2014, to answer to a lawsuit in tribal 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)