Supreme Court schedules oral argument in tribal immunity case

Tuesday, December 6, 2016

The Mohegan Tribe Community Center and Government Building in Uncasville, Connecticut. Photo by Bob Nichols / U.S. Department of Agriculture

The U.S. Supreme Court will hear Lewis v. Clarke, a sovereign immunity case, on January 9, 2017.

The outcome in the case will determine whether the immunity of the Mohegan Tribe extends to an employee of its gaming enterprise. Connecticut's highest court agreed that it did in a unanimous decision issued in March 2016.

But a non-Indian couple has asked the Supreme Court to overturn that decision. Brian and Michelle Lewis say William Clarke, who was a limousine driver for the Mohegan Tribal Gaming Authority, should be held responsible for injuries they suffered during an October 2011 accident.

And, in an unusual development, the Obama administration believes the decision should be overturned as well. A brief filed by the Department of Justice argues that the tribe's immunity does not extend to Clarke because he is being sued in his "personal" capacity.

However, if the ruling is reversed, the federal government said Clarke could be given the opportunity to raise a claim of "official" immunity when the case returns to the state court system. That would basically protect him from the lawsuit anyway.

Still, the administration's views -- which were unexpected -- have generated some concerns in Indian Country. The Tribal Supreme Court Project, a joint effort of the National Congress of American Indians and the Native American Rights Fund, is "preparing to file at least three amicus briefs" to support the Mohegan Tribe's interests, according to a December 5 update.

Lewis v. Clarke is currently the only Indian law case on the Supreme Court's docket. That's a big change from last term, when four were heard by the justices.

The Supreme Court will be hearing Lewis v. Clarke with only eight justices due to the passing of Antonin Scalia in February. Republicans in the Senate have refused to confirm a replacement until Republican president-elect Donald Trump comes on board in January.

Trump has said he will pick someone from a list of 23 names that was finalized in September. Almost all of the choices lack experience in Indian law.

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

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