High Court Kills Tribal Immunity for Casino Employees

WASHINGTON (CN) – Tribal immunity does not shield a casino’s limo driver for Mohegan Sun Casino from having to pay the couple he rear-ended on a highway, the Supreme Court ruled Tuesday.

William Clarke had been driving southbound on I-95 nearly five years ago when he smashed into the back of Brian and Michelle Lewis’ car, sending them to a concrete barrier on the west side of the interstate near Norwalk, Connecticut.

Though the state Supreme Court threw out the couple’s ensuing case against Clarke last year, the U.S. Supreme Court was unanimous Tuesday that civil claims against someone employed by a tribe does not implicate the tribe’s sovereign immunity.

“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,” according to the lead opinion by Justice Sonia Sotomayor. “We hold further that an indemnification provision does not extend a tribe’s sovereign immunity where it otherwise would not reach.”

On the night of the crash, Clarke had been driving patrons from the Mohegan Sun Casino to their homes.

Nevertheless, Sotomayor wrote, “this is a negligence action arising from a tort committed by Clarke on an interstate highway within the state of Connecticut.”

“The suit is brought against a tribal employee operating a vehicle within the scope of his employment but on state lands, and the judgment will not operate against the tribe,” she added. “This is not a suit against Clarke in his official capacity. It is simply a suit against Clarke to recover for his personal actions, which ‘will not require action by the sovereign or disturb the sovereign’s property.’ We are cognizant of the Supreme Court of Connecticut’s concern that plaintiffs not circumvent tribal sovereign immunity. But here, that immunity is simply not in play. Clarke, not the [Mohegan Tribal] Gaming Authority, is the real party in interest.”

Clarke failed to sway the court with his claim that Mohegan tribal law requires its gaming authority to indemnify him for any adverse judgment.

“The tribe’s indemnification provision does not somehow convert the suit against Clarke into a suit against the sovereign; when Clarke is sued in his individual capacity, he is held responsible only for his individual wrongdoing,” Sotomayor wrote. “Moreover, indemnification is not a certainty here. Clarke will not be indemnified by the gaming authority should it determine that he engaged in ‘wanton, reckless, or malicious’ activity. That determination is not necessary to the disposition of the Lewises’ suit against Clarke in the Connecticut state courts, which is a separate legal matter.”

With his colleagues having heard oral arguments on the case in early January, weeks before his nomination by President Donald Trump, Justice Neil Gorsuch did not take part in the consideration or decision of the case. 

Justices Clarence Thomas and Ruth Bader Ginsburg wrote separate opinions, concurring in the judgment.

“I remain of the view that tribal immunity does not extend ‘to suits arising out of a tribe’s commercial activities conducted beyond its territory,’” Thomas wrote. “This suit arose from an off-reservation commercial act. Accordingly, I would hold that respondent cannot assert the tribe’s immunity, regardless of the capacity in which he was sued. Because the court reaches the same result for different reasons, I concur in its judgment.”

Ginsburg meanwhile cited dissents from the tribal-immunity cases Kiowa Tribe of Oklahoma v. Manufacturing Technologies Inc. (1998) and Michigan v. Bay Mills Indian Community (2014).

“These dissenting opinions explain why tribes, interacting with nontribal members outside reservation boundaries, should be subject to nondiscriminatory state laws of general application,” Ginsburg wrote. “I agree with the court, however, that 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. I therefore concur in the court’s judgment.”

Sotomayor noted that the Mohegans trace their 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 opinion states.

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