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2017-05-10 / Top News

U.S. Supreme Court challenges tribal sovereignty

Supreme Court ‘calls tribe’s bluff’
By Ernestine Chasing Hawk
Native Sun News Today
Managing Editor


The Mohegan Sun Casino in Uncasville, Conn. 
COURTESY/AP The Mohegan Sun Casino in Uncasville, Conn. COURTESY/AP WASHINGTON –– The Supreme Court changed the rules of the game for employees of Indian casinos putting tribal officials and employees at risk for damages they may incur while off the reservation.

By a unanimous vote the Supreme Court issued its decision in Lewis v. Clarke and held that a tribe's sovereign immunity does not extend to its employees even when those employees are acting within the scope of their duties.

The most recent appointment to the Supreme Court, Justice Neil Gorsuch, whose extensive experience dealing with tribal immunity cases was hailed by Tribal leaders, did not participate the case.

According to the decision, “Brian and Michelle Lewis were driving on a Connecticut interstate when they were struck from behind by a vehicle driven by respondent William Clarke, a Mohegan Tribal Gaming Authority employee, who was transporting Mohegan

Sun Casino patrons. The Lewis’ sued Clarke in his individual capacity in state court. Clarke moved to dismiss for lack of subject matter jurisdiction, arguing that because he was an employee of the Gaming Authority—an arm of the Mohegan Tribe entitled to sovereign immunity—and was acting within the scope of his employment at the time of the accident, he was similarly entitled to sovereign immunity against suit. He also argued, in the alternative, that he should prevail because the Gaming Authority was bound by tribal law to indemnify him.”

A lower Connecticut court had denied Clarke’s motion, but the Supreme Court of Connecticut reversed it, “holding that tribal sovereign immunity barred the suit because Clarke was acting within the scope of his employment when the accident occurred.”

They appealed to the US Supreme Court which was argued January 9 and a decision was issued April 25. The case has precarious implications for tribes protected by treaties in what looks like a direct attack on tribal sovereign immunity by SCOTUS.

SCOTUS in the syllabus of the case states, “This action arises from a tort committed by Clarke on a Connecticut interstate and is simply a suit against Clarke to re¬cover for his personal actions. Clarke, not the Gaming Authority, is the real party in interest. The State Supreme Court extended sovereign immunity for tribal employees beyond what common-law sovereign immunity principles would recognize for either state or federal employees.”

According to Ernie Stevens, Chairman of the National Indian Gaming Association, in 2014, during the oral argument of the Michigan v. Bay Mills Indian Community, the late Justice Scalia questioned the Justice Department Solicitor on the source of Indian sovereignty, “Who made these Indian tribes sovereign, was it Congress?”

The Solicitor General answered, “The Constitution.”

Scalia asked, “Who decided that Indian tribes are sovereign?”

The Solicitor replied, “This Court...not as a matter of common law. We have treaties…we have the Commerce Clause.”

Scalia replied, “So I assume that this Court could also determine the scope of their sovereignty.”

Harold Monteau, a citizen of the Chippewa Cree Tribe said, “As one of my colleagues put it “the Supreme Court has called the tribes’ bluff” made in winning the Bay Mills decision and the court’s hand trumps the tribes heretofore winning hand.”

Tribes argued that “carefully crafted” compacts agreements between states and tribes should lay out remedies for alleged acts of harm by tribal employees that balance both state and tribal interests.

Tribes in their brief to the Supreme Court state, “Amici Tribes have a strong interest in this case because of its potential impact on the scope of immunity for tribal officials and employees and the range of core sovereign interests that immunity protects. But Amici Tribes’ interest in this case also extends to its potential impact on a wide array of negotiated intergovernmental agreements and tribal laws that govern Amici Tribes’ working relationships with their sister governments and commitments to individual state and tribal citizens, and which specify tort remedies and immunity waivers as negotiated.”

Monteau said, “It does not bode well for the tribes for the Supreme Court to ‘tinker’ with the Doctrine of Tribal Sovereign Immunity which predates the Federal and State Sovereign Immunity to which the SCOTUS analogized in making its decision.”

So essentially the SCOTUS has given States carte blanche to go after tribal officials and employees operating tribal commerce off the reservation and who break state laws.

Several other tribal sovereign immunity cases will move forward now that the nation's highest court has cleared the path for litigation, including the Tunica- Biloxi Tribe owns and operates the Paragon Casino Resort in Marksville, La., who are being sued in a drunken driving lawsuit.

(Contact Ernestine Chasing Hawk at executiveeditor@ nsweekly.com)

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