SCOTUS Petition for Cert in Lewis v. Clarke

Download Petition for Writ of Certiorari (PDF)

Link to briefs previously posted here.

Question Presented: Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.

Connecticut SCT Affirms Tribal Immunity from Tort Suit; Rejects Ninth Circuit’s Maxwell Rule on Official Immunity

Here are the materials in Lewis v. Clarke (Conn.):

Ct SCT Opinion

Appellant Brief

Appellee Brief

Reply

Connecticut Appellate Court Decides Wrongful Death/Worker’s Comp Case Involving Mohegan Sun Casino

Here is the opinion in Lubrano v. Mohegan Sun Casino (Conn. App.):

Lubrano v Mohegan Sun Casino

An excerpt:

The defendants, Mohegan Sun Casino and Safety National Casualty Corporation, appeal from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner for the second district (commissioner) denying the defendants’ request to review their claim challenging the allocation of certain third party settlement proceeds between the plaintiff, Joseph Lubrano, and his wife, Jill Lubrano. On appeal, the defendants claim that (1) the board improperly affirmed the commissioner’s finding that the  [6] workers’ compensation commission (commission) lacked jurisdiction to review the amount of a spouse’s recovery from a third party claim for loss of consortium when determining the appropriate moratorium due to the defendants, (2) “the commissioner erred in finding, and the board erred in affirming, that the [defendants] had waived reimbursement of workers’ compensation benefits paid” and (3) “the commissioner erred in finding, and the board erred in affirming, that the [defendants’] moratorium was only $2,190,056.3.” We affirm the decision of the board.

Connecticut Trial Court Quashes Subpoena of Mohegan and Mashantucket Pequot Tribal Representatives

Here is the order in Davis v. Senibaldi (Conn. Sup. Ct.):

Crowder Subpoena Memo

The tribes and tribal reps are third parties to a dram shop action, and the court held that sovereign immunity required the quashing on the subpoena.

Mohegan Sun Officials Assuage Financial Community

From the New London Day via Pechanga:

The Mohegan Tribal Gaming Authority reduces stipends to tribal members when changes like the current economic downturn warrant it, casino officials told the financial community today.

Mohegan Sun also has a stable management team that is continuing to work to improve the product it offers patrons, despite the effects of the recession.

Casino officials made the comments this morning during a Webcast presentation at the Bank of America Merrill Lynch 2009 credit conference in New York City. Participants in the Webcast included a broad range of members of the financial industry.

The tribe’s Mohegan Sun casino is one “you could put anywhere and it would be a category killer and a market leader,” said Mitchell Etess, the casino’s president and chief executive officer.

Continue reading

Mohegan Tribe Per Caps under Scrutiny by Lenders

From the Day:

Times were flush when the Mohegans sought the U.S. Bureau of Indian Affairs’ approval of the tribe’s plan for distributing gaming revenues.

After ensuring that the plan provided adequate funding for tribal government and economic development, among other things, the deputy commissioner of Indian Affairs signed off on the plan on July 16, 2001. It calls for 40 to 50 percent of the tribe’s net gaming revenues from Mohegan Sun to be distributed to the tribe’s adult members on a quarterly basis.

More recently, on Jan. 4, 2008, the office of the secretary of the Department of the Interior approved a Gaming Revenue Allocation Plan submitted by the Mashantucket Pequots. Under the plan, up to 30 percent of the net gaming revenues generated by Foxwoods Resort Casino (including MGM Grand at Foxwoods, which opened in May 2008) are to be distributed to tribal adults “to help advance their personal health, safety and welfare.”

The plans, which the BIA requires of tribes that choose to make so-called per capita payments to members, have come under scrutiny in recent weeks, particularly in the case of the Mashantucket Pequots, who are seeking to restructure a debt load of more than $2 billion. Gaming industry analysts and the Mashantuckets’ creditors are more interested than ever in how the tribe distributes its gaming revenue.

The creditors were alarmed in late August when Mashantucket Chairman Michael Thomas, addressing tribal members about the “dire financial times” facing the tribe, vowed to protect funding for tribal government and per capita “incentive” payments from further cuts. The pledge, which many within and without Indian Country considered irresponsible, cost Thomas his chairmanship. Placed on administrative leave and facing a tribal council vote to expel him from the council, Thomas announced he would not seek re-election Nov. 1.
“He’s not that relevant at the moment,” Jane Pedreira, a gaming analyst with Rye, N.Y.-based Clear Sights Research, said last week.

With Thomas out of the picture, the investment world is keen to learn about the tribe’s funding of its tribal operations and the payouts its members receive. If they’re having trouble finding such information, “it’s not for our lack of looking,” one investor said.

Plans’ percentage breakdowns

Copies of the revenue-allocation plans, which The Day obtained from the BIA through a federal Freedom of Information Act request, detail the percentage breakdown of the tribes’ allocation of their net gaming revenues. The Mohegans’ 10-page plan specifies that 30 to 40 percent of the tribe’s revenue is to be dedicated to tribal-government operations and programs, including investments and education; 5 to 15 percent to the general welfare of tribal members, including investments, health, housing, social services and youth services programs; and 10 to 20 percent to economic development, both gaming and non-gaming related. Continue reading

Student Article on Authority of Indian Tribes to Tax Athletes and Performers

Here is an interesting piece called “The Power of Indian Tribes to Tax the Income of Professional Athletes and Entertainers Who Perform in Indian Country,” a student note in the Connecticut Law Review.

Here is the abstract:

Athletes and entertainers represent some of the highest paid individuals in the United States today. Historically, these individuals perform in various states throughout the country and pay state income taxes to each state they earn income in. With the recent rise of athletic and entertainment venues in Indian Country, more athletes and entertainers are earning income in Indian Country. For example, the Mohegan Tribe owns and operates the Mohegan Sun Arena on its reservation in Connecticut and the Arena annually hosts hundreds of professional athletic and entertainment events. Because the Mohegan Sun Arena is located in Connecticut, athletes and entertainers who perform at the Arena and receive compensation are currently subject to Connecticut’s state income tax. However, as a federally-recognized Tribe, the Mohegan Tribe possesses the power to tax, including the power to tax non-member Indians doing business on the Mohegan Reservation. Although the Mohegan Tribe does not currently levy an income tax on the athletes and entertainers who perform at the Mohegan Sun Arena, the prospect of double taxation raises the question of which sovereign is really the proper taxing entity — the State or the Tribe? This Note proposes an equitable tax framework that resolves this double taxation quandary.

Connecticut Court Dismisses Dram Shop Action against Mohegans

Maybe another one to watch involving the state law question of whether tribal businesses are immune from Dram Shop actions. The case is Vanstaen-Holland v. Lavigne.

vanstaen-holland-v-lavigne-trial-court-order