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Lewis and Clarke Venture to Supreme Court for Native Sovereignty Fight

The Supreme Court justices blazed a trail through the wilderness of Indian Law on Monday, guided by Lewis and Clarke. But, no, there weren't any river fordings. Sacajawea was nowhere to be found.

In a strange coincidence, the Supreme Court's first case to deal with tribal sovereignty this term is captioned Lewis v. Clarke. Rather than an expedition into the West, the case, for which the Court just heard oral arguments, deals with the reach of native tribes' sovereign immunity.

Connecticut Kicks Suit Against Tribal Employee

The case stems from a dispute between William Clarke (that's William Clarke with an e, not William Clark the explorer) and Brian and Michelle Lewis, who were all in a car accident in Connecticut. Clarke was driving a limousine as part of his job with the Mohegan Tribal Gaming Authority at the time, while the Lewises were his passengers. Clarke rear ended another vehicle and the Lewises later sued for their injuries. But, Clarke claimed, he was shielded from suit by the tribe's sovereign immunity, as an employee of a native tribe.

It was an argument that the Connecticut Supreme Court agreed with. Though native tribes have a unique relationship with the U.S. government -- sovereign, but not entirely independent -- one of the core aspects of that relationship is "the common-law immunity from suit traditionally enjoyed by sovereign powers," the Supreme Court wrote in 1986, subject to limitations imposed by the federal government.

That extends to employees acting within the scope of their employment, the Connecticut court explained. This remains true even when an employee is sued in his individual capacity and the tribe itself is not a party to the suit.

That position, the Lewises' lawyer Eric Miller argued before the Supreme Court yesterday, would "represent an extraordinary and unwarranted expansion of tribal immunity." It would leave plaintiffs with no remedy but tribal court when injured by "a tribal employee's negligence in carrying on a commercial activity miles away from a reservation."

On the Trail of Tribal Sovereignty

The question of sovereign immunity soon turned to questions about tribal sovereignty itself. Justice Ginsburg wondered how tribal sovereignty compared to sovereignty generally. How would, for example, this case unfold if Clarke had been a driver for a foreign embassy?

How should the Court draw lines between suits against individuals and sovereigns, some justices wanted to know. Why shouldn't they treat this suit similarly to a suit against, say, a state-created agency like the Port Authority, Justices Alito and Kagan wondered, looking at who would pay the judgment to see if sovereign immunity applied?

Former Solicitor General Neal Katyal, arguing for Clarke, urged the Court to support broad immunity from tort liability. "If Clarke were a federal employee," he said, "a foreign employee, or a Connecticut State one, this suit would be barred. There's no reason for the rule to be different for tribes."

And finally, Chief Justice Roberts questioned sovereign immunity for tribes altogether. The Supreme Court has "suggested several times that there is some uneasiness with the doctrine of applying sovereign immunity to tribal entities at all," he told Ann O'Connell, assistant U.S. solicitor general, who argued for the government.

"Does the government have a position on that?" he asked. The issue of sovereign immunity, she said, is settled law.

We'll have to wait and see how this particular trip into of native sovereign immunity plays out, however. Given the wide-ranging questions and the tangled issues involved, no clear consensus emerged during the arguments.

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