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Washington — A Waterford attorney whose tribal sovereignty case the U.S. Supreme Court heard Monday said he was enouraged by the questions the justices posed during oral arguments.
"The level of the questioning, the tone of the questioning seemed to be favorable to us," James Harrington of Polito & Associates said outside the courtroom.
The case, Lewis v. Clarke, turns on whether a tribal employee can be sued as an individual over actions he took within the scope of his employment when those actions took place outside a sovereign Indian tribe's reservation. It could have implications for the Mashantucket Pequot and Mohegan tribes as well as other tribes across the country and state and federal governments.
Harrington, who represents Brian and Michelle Lewis, a Pennsylvania couple injured in a 2011 collision with a Mohegan Sun limousine, maintains that tribal employees are not immune from claims in such "individual-capacity" suits. William Clarke of Norwich, the driver of the limousine that rear-ended the Lewises' vehicle on Interstate 95 in Norwalk, claims that the Mohegan Tribe's sovereign immunity protects him from suit.
Humbert Polito Jr., Harrington's associate, who also attended Monday's arguments, said he, too, was "heartened" by the justices' line of questioning.
"The best of the arguments raised were those that James had raised in the lower court," Polito said. "He identified them at the beginning of the case and made them in a novel way."
The Lewises sued Clarke in New London Superior Court in 2013, prompting Clarke to file a motion to dismiss, claiming he was immune from suit. After Judge Leeland Cole-Chu denied Clarke's motion, the Connecticut Supreme Court took up the case.
In March 2016, the Connecticut Supreme Court overturned Cole-Chu's ruling.
Harrington's co-counsel, Eric Miller of the Perkins Coie firm's Seattle office, argued before the justices Monday, as did Ann O'Connell, an assistant to the U.S. solicitor general, whose office believes the Connecticut Supreme Court's decision should be reversed.
Neal Katyal of the Washington, D.C., firm Hogan Lovells, argued for Clarke and the Mohegan Tribe. Katyal is a former acting U.S. solicitor general.
"In an individual-capacity action against a government employee, the plaintiff seeks relief from the employee personally," Miller told the justices at the outset of his argument. "The judgment is not enforceable against the government. For that reason, such an action does not implicate sovereign immunity."
The Supreme Court has applied the principle to individual-capacity actions against federal and state employees and "it applies equally when the defendant is an employee of an Indian tribe," Miller said.
Clarke's position, Miller said, is that plaintiffs, like the Lewises, who had no connection to an Indian tribe and who were injured as a result of a tribal employee's negligence in carrying on a commercial activity miles from a reservation "should have no remedy except whatever the tribe chooses to provide in tribal court."
"That position represents an extraordinary and unwarranted expansion of tribal sovereignty," Miller said.
Justice Ruth Bader Ginsburg asked Miller what would happen if the limousine driver had been an employee of a foreign embassy.
Miller said that such a suit would not be barred by sovereign immunity since the foreign government could be sued directly.
He said the Supreme Court faced "a lot of novel, difficult issues" in the case and that if it resolved them, "It would be the first court to do so."
O'Connell argued that the Lewises' action is "a personal-capacity suit against an individual" and that tribal sovereignty "is therefore not implicated."
Justice Samuel Alito asked O'Connell whether "there's any argument in favor of sovereign immunity for Mr. Clarke under the facts of this case?"
O'Connell said no.
At one point, Chief Justice John Roberts said the court has suggested several times that it has "some uneasiness with the doctrine of applying sovereign immunity to tribal entities at all."
"Does the government have a position on that?" he asked.
O'Connell said the government considers tribal sovereignty to be a "settled issue" under federal law.
"The Mohegan Tribe is asking for the same protections from suit that every other sovereign enjoys," Katyal said. "If Clarke were a federal employee, a foreign employee or a Connecticut state one, this suit would be barred. There's no reason the rule should be different for tribes."
Seven of the sitting justices asked questions. Justice Clarence Thomas was silent.
Harrington said the justices could send the case back to the Connecticut Supreme Court or even remand the case to state Superior Court, in which event, he said, "We'd have to start from scratch."
The merits of the Lewises' claim for damages never have been heard.