Lewis and Clarke Get Their Day in Court

As the Supreme Court prepares to reconvene next week, the justices agreed to hear eight new cases on Thursday.

The U.S. Supreme Court courtroom.
The U.S. Supreme Court courtroom. (Jonathan Ernst / Reuters)

After a five-year legal voyage, Lewis and Clarke have arrived at the U.S. Supreme Court.

The justices said Thursday they would hear their case and seven others in the upcoming term, which starts next week. The eight-justice Court has largely avoided taking on any blockbuster cases since the death of Antonin Scalia in February. But some of the disputes it’s agreed to hear could have far-reaching outcomes.

Lewis v. Clarke, which will likely become famous for its name alone, may also have major implications for Native American tribes. The dispute began in 2011 when William Clarke, a limousine driver who works for the Mohegan Tribal Gaming Authority, crashed into Brian and Michelle Lewis’s car in Norwalk, Connecticut. He was transporting patrons from the Mohegan Sun Casino at the time.

The Lewises initially filed a personal-injury lawsuit against both Clarke and the Mohegan tribe itself. Typically, this would be a lost cause. Native American tribes, like the states, the federal government, and foreign powers, are protected in U.S. courts by sovereign immunity. Generally speaking, this legal doctrine shields tribes and governments—as well as their employees when carrying out official business—from lawsuits unless those governments waive the immunity for themselves.

In an attempt to circumvent this, the Lewises dropped their claims against the tribe and amended their lawsuit to target Clarke in his individual capacity. Clarke invoked sovereign immunity to dismiss the lawsuit anyways. The trial court refused, but the Connecticut Supreme Court sided with him, ruling that he was shielded because he was acting as a tribal employee when the crash occurred.

Allowing that decision to stand “will leave many persons who have been injured by tribal employees without any remedy at all,” the Lewises told the justices in their petition. Clarke disagrees. In his reply to their petition, he argued the Lewises should have sued him in the Mohegan tribe’s Gaming Disputes Court, which hears claims against tribal employees, instead of trying to undermine tribal sovereign immunity in state courts.

At risk, Clarke warns, is a central pillar of the Mohegan tribe’s right to self-government. “If sanctioned, it will result in a stampede away from the Mohegan tribal courts,” Clarke told the justices in his reply. “A functioning court system is a critical aspect of sovereignty; reducing the efficacy of the Mohegan court system undermines the Tribe’s sovereignty.”

Another case accepted by the Court on Thursday could also indirectly affect a high-profile Native American issue. Lee v. Tam revolves around the Slants, a rock group based in Portland, Oregon, and their efforts to copyright their own name. The Slants’ members, who are all Asian Americans, say the name is intended to reclaim and undermine a deeply offensive ethnic slur.

When founder Simon Tam attempted to trademark the band’s name in 2011, the Patent and Trademark Office denied the request, citing a clause in federal trademark law that prohibits the office from registering trademarks that “may disparage … persons, living or dead.” Tam sued on First Amendment grounds, arguing the disparagement clause violated his right to free speech. The Federal Circuit Court of Appeals agreed and struck it down.

If the Supreme Court upholds that decision, the largest beneficiary could be the Washington Redskins football team. In 2014, the PTO cancelled six of their trademarks, some of which dated back to the 1960s, for disparaging Native Americans. The team sued on First Amendment grounds, but a federal district court sided with the PTO and upheld the disparagement clause. Their appeal is currently pending before the Fourth Circuit.

The other six cases address a wide variety of legal questions. McClane v. EEOC focuses on the level of deference by federal courts when reviewing Equal Employment Opportunity Commission subpoenas. In Endrew F. v. Douglas County School District, the Court will consider the scope of a federal law that reimburses school districts for educating children with disabilities. Nelson v. Colorado weighs how a Colorado statute reimburses defendants who are proven innocent. Expressions Hair Designs v. Schneiderman challenges New York’s credit-card surcharge fee under the First Amendment. Goodyear Tire v. Haegar will resolve a circuit split over attorney-misconduct fees and sanctions. And Lynch v. Dimayo will determine if the definition of “crime of violence” is unconstitutionally vague in a federal deportation statute.

Overall, the year ahead will be relatively quieter than in years past for the short-handed Court. The eight justices have already agreed to hear high-profile cases on the Fair Housing Act, state funding of religious organizations, and death sentences for defendants with mental illnesses in the upcoming term. But neither hot-button political battles nor blockbuster constitutional debates can be found on its docket this term—a clear sign of the even split between its conservative and liberal wings.