Litigation | Opinion

Peter d'Errico: Tribes should be ready to stand up for their sovereignty

Wednesday, May 3, 2017

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

The nation's highest court has spoken and ruled that tribal sovereign immunity does not extend to tribal employees But what comes next? Retired professor Peter d'Errico looks at the fallout from the U.S. Supreme Court decision in Lewis v. Clarke:

On April 25, 2017, the U.S. Supreme Court decided Lewis v. Clarke, a case involving the scope of Mohegan sovereign immunity. The substance of the decision—an employee of Mohegan Sun Casino was acting on his own and not protected by Mohegan’s immunity—focused on general immunity rules. The court did not distinguish between state, federal, and “tribal” entities. Nonetheless, the decision attracted comments about its significance for “tribal” immunity law.
One commentator, Todd Henderson, stated, “The decision in this case stands for the proposition that tribal immunity is no greater than state immunity. That seems right, both as a matter of history and logic.” While the logic of immunity may seem identical, the history of Native nations suggests the opposite: States are creations of colonial invasion of Native Nations. As the court acknowledged, “The Mohegan Tribe of Indians of Connecticut traces its lineage back centuries. Originally part of the Lenni Lenape, the Tribe formed the independent Mohegan Tribe under the leadership of Sachem Uncas in the early 1600s.” The Mohegan’s prior existence raises the question whether the U.S. Supreme Court has any legitimate basis to determine the scope of immunity. Henderson’s comment presumes the authority of the court over Native nations, without demonstrating its legitimacy.
Henderson pointed to an ominous sign—which should be a wakeup call to Native Nations’ lawyers: “The court declined to reconsider … core issues of the scope of tribal sovereignty (such as whether there should be any separate tribal sovereignty). Although recent opinions have teed up these questions, it is possible that the court viewed a simple car accident between two non-tribal members occurring off the reservation as a poor vehicle (pun intended) for making such a sweeping change to tribal law.”

Read More on the Story:
Peter d'Errico: Lewis v. Clarke: Latest Hit on Tribal Immunity Law (Indian Country Media Network 5/3)

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)