Supreme Court hears argument in lone Indian law case on docket

Monday, January 9, 2017

Tribal immunity at issue in gaming employee dispute from Connecticut

By Andrew Bahl Follow @AndrewBahl
Indianz.Com Correspondent

WASHINGTON, D.C. -- The U.S. Supreme Court met on Monday to hear the first, and so far only, Indian law case on the docket.

The eight justices took up Lewis v. Clarke, a sovereign immunity case from Connecticut. The dispute stems from a 2011 traffic accident involving a non-Indian couple and an employee of the Mohegan Tribe.

The couple -- Brian and Michelle Lewis -- sued the driver, William Clarke, instead of the tribe in an effort to avoid sovereignty issues. But the Connecticut Supreme Court dismissed their claim anyway, ruling that the tribe's immunity extends to Clarke because he was carrying out his duties as an employee of the Mohegan Sun gaming facility.

That should make the case fairly straightforward, according to Clarke's attorney. Neal Katyal, a former Obama administration official, said tribal governments deserve to be treated like any other.

“If Clarke were a federal employee, a foreign employee, or a Connecticut state one, this suit would be barred,” Katyal told the court. “There's no reason the rule should be different for tribes."

Justice Stephen Breyer was among a handful of members of the court who pushed back against the notion that Clarke was immune due to his status as a tribal employee.  He noted that the October 2011 accident did not occur at the casino or on the reservation.

“That seems to me pushing the notion of tribal sovereign immunity off the reservation into a place where there are just no remedies for victims at all," Breyer said.

But Katyal said individual states have negotiated gaming compacts to funnel certain legal challenges through state courts. The Mohegans also hear lawsuits in their own court system -- the Lewises did not pursue that avenue, however.

“Now what these folks are asking for is to renegotiate that compact and ask for something up and beyond what the state of Connecticut has provided,” Katyal said.

Eric Miller, an attorney for the copule, argued that his clients aren't seeking to treat tribes differently. The Supreme Court has consistently held that state or federal employees acting in an individual capacity can be sued, he said, so tribes should not enjoy special protections.

“This court has repeatedly applied [sovereign immunity] to individual capacity actions against federal and state employees, and it applies equally when the defendant is an employee of an Indian tribe,” Miller said during oral arguments, which lasted about an hour.

“We're talking about a claim that arose under Connecticut law from an accident on a Connecticut highway, not on the reservation, and the tribe does not have the authority to define the process for handling that claim,” Miller said later. “That's subject to Connecticut law.”

The Department of Justice filed a brief in support of the Lewises, arguing that the tribe's immunity does not extend to Clarke because he is being sued in his "personal" capacity. Yet Assistant Solicitor General Ann O’Connell said that if the case were sent back to a lower court, Clarke could be given an opportunity to raise a claim of "official" immunity instead, which would shield him from the lawsuit anyway.

“It particularly makes sense that tribal sovereign immunity wouldn't apply here because there's a coordinate doctrine of official immunity that applies in personal-capacity suits,” O’Connell argued. “And we think official immunity does, as a matter of federal common law, apply to tribal employees that it should extend to the scope of the federal common law.”

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 Lewis v. Clarke apparently drew their interest since it involves a tribal employee rather than a tribe itself.

Katyal, incidentally, represented the Bay Mills Indian Community in the 2014 case.

The argument took place as the court continues without a ninth member following the death of Justice Antonin Scalia last year. His absence leaves open the possibility for a 4-4 deadlock, which would represent a victory for Clarke because it would leave the Connecticut decision intact.

Still, the outcome in Bay Mills appears to tip the scales in Clarke's favor because the five justices who affirmed tribal immunity in 2014 remain on the court. The four who were in the minority have dropped to three with the passing of Scalia.

"Once again, Tribal Nations across the country hope that the Supreme Court will respect their historical sovereignty and right to fair and equal treatment of it," said Tim Purdon, a former U.S. Attorney from North Dakota who is now in private practice.

U.S. Supreme Court Documents:
Docket Sheet No. 15-1500 | Questions Presented | Oral Argument Transcript

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

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