The Mohegan Tribe’s motto of “Perseverance, Honor, and Integrity” is displayed at the Mohegan Tribe Community Center and Government Building in Uncasville, Connecticut. Photo: Bob Nichols / U.S. Department of Agriculture

Connecticut | Litigation

Supreme Court hands defeat to tribal interests in sovereignty case

Tuesday, April 25, 2017

The nation's highest court has delivered a blow to Indian Country with a surprising decision that leaves tribal employees in danger of being sued for carrying out their duties.

While tribes are generally protected by sovereign immunity, the same does not apply to their workers, the U.S. Supreme Court ruled on Tuesday. While the reasoning varied among the eight justices who heard Lewis v. Clarke, they all agreed on the outcome in the closely-watched case.

"We hold that, in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated," Justice Sonia Sotomayor wrote for the majority in the 12-page decision

"That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity," she continued.

The decision means an employee of the Mohegan Tribe can be sued in connection with a traffic accident in Connecticut. William Clarke was carrying out his duties as a limousine driver for the Mohegan Sun gaming facility at the time of the incident in 2011.

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

The couple behind the case -- Brian and Michelle Lewis -- had named the Mohegan Tribal Gaming Authority as a defendant when they filed their lawsuit in state court. But, in a critical step, they withdrew their claims against the tribe's entity before any decisions were reached, leaving Clarke to fend for himself.

Still, Clarke wasn't alone when the dispute made its way to the Supreme Court. Dozens of tribes across the country, the National Congress of American Indians and even some state governments filed briefs in support of the premise that tribal sovereign immunity extends to employees.

But the six justices who joined Sotomayor's majority opinion weren't swayed. Even though the Lewises had initially sued the gaming authority, their target all along was Clarke, they concluded.

"We are cognizant of the Supreme Court of Connecticut’s concern that plaintiffs not circumvent tribal sovereign immunity," Sotomayor wrote. "But here, that immunity is simply not in play. Clarke, not the Gaming Authority, is the real party in interest."

Additionally, the court established a new precedent for Indian Country. Tribes, through their own laws, codes or other indemnification mechanisms, cannot "extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak," the decision stated.

"We have never before had occasion to decide whether an indemnification clause is sufficient to extend a sovereign immunity defense to a suit against an employee in his individual capacity," Sotomayor wrote, explaining the novel issue resolved by the decision.

The Mohegan Tribe owns and operates the Mohegan Sun gaming facility in Uncasville, Connecticut. Photo: grendelkhan

Justice Clarence Thomas, who rarely sides with tribal interests, agreed with the outcome in the case. But he wrote separately because he believed the dispute could have been resolved very easily.

"This suit arose from an off-reservation commercial act," Thomas observed. The 2011 accident indeed occurred away from the Mohegan Reservation in southeastern Connecticut.

"Accordingly, I would hold that respondent cannot assert the tribe’s immunity, regardless of the capacity in which he was sued," he wrote in the one-page concurrence.

Justice Ruth Bader Ginsburg shared a similar view in a separate concurrence. She believes "tribes, interacting with nontribal members outside reservation boundaries, should be subject to non-discriminatory state laws of general application."

But she also agreed with the majority regarding the indemnification issue. "[A] voluntary indemnity undertaking does not convert a suit against a tribal employee, in the employee’s individual capacity, into a suit against the tribe," she wrote in the one-page concurrence.

Justice Neil Gorsuch, who joined the court on April 8, did not take part in the resolution of the case, according to the opinion. He has extensive experience with tribal immunity from his time serving on a federal appeals court.

Arguments in Lewis v. Clarke took place on January 9. It remains the sole Indian Country case on the docket for the Supreme Court's current session, which began in October.

But the outcome will most definitely affect another pending case. In Tunica-Biloxi Gaming Authority v. Zaunbrecher, a court in Louisiana held that employees of the Tunica-Biloxi Tribe weren't entitled to immunity in connection with a drunken driving lawsuit.

The petition will be considered at a closed-door conference on Friday, according to Docket No. 15-1486. The case had been on hold since September while the justices were mulling over Lewis.

Incidentally, the Tunica-Biloxi Tribe has enlisted the Mohegan Tribe to help run its Paragon Casino Resort in Louisiana. Their partnership was announced in April 2016.

U.S. Supreme Court Decision:
Syllabus [Summary of Outcome] | Opinion [Sotomayor] | Concurrence [Thomas] | Concurrence [Ginsburg]

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)