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.