Is a Native American tribe sovereignly immune from a civil suit for damages caused by the off-reservation violations by its police officers of the 'place of religious worship' provisions of the Freedom of Access To Clinic Entrances Act of 1994, 18 U.S.C. § 248(a)(2) (the Access Act)"

QUESTIONS PRESENTED Six members of a reservation-based tribal police force, while in uniform, using a marked vehicle and carrying departmental firearms, during a sabbath service intervened in an off-reservation dispute over the leadership of a church and installed a dissident faction of the congregation. This petition presents two significant questions: , (1) Is a Native American tribe sovereignly immune from a civil suit for damages caused by the off-reservation violations by its police officers of the “place of religious worship” provisions of the Freedom of Access To Clinic Entrances Act of 1994, 18 U.S.C. § 248(a)(2) (“the Access Act”)? (2) Are the “place of religious worship” and civil remedies provisions of ; the Access Act, as applied to a congregational leadership dispute, unenforceable because those provisions violate the Establishment of Religion and Free Exercise of Religion Clauses of the First Amendment to the United States Constitution? The Court of Appeals and the District Court answered the foregoing questions in the affirmative. : The former question was reserved for future resolution in Footnote 8 of Justice Kagan’s opinion for the Court in Michigan v. Bay Mills Indian Community, 572 U.S. 782, 799 (2014): We have never, for example, specifically addressed (nor, so far as we are aware, has Congress) whether immunity should apply in the ordinary way if a tort victim, or other 2 plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct. The argument that such cases would present a “special justification” for abandoning precedent is not before us...(Citation omitted)! As to the latter question, with the exception of the Court of Appeals’ decision in this controversy, no court has held that the “place of religious worship” and civil remedies provisions of the Access Act are unenforceable because they violate the Establishment of Religion and Free Exercise of Religion Clauses of the First Amendment to the United States Constitution. Indeed, the Eleventh Circuit in this case so held even though, in Cheffer v. Reno, 55 F. 3d 1517, 1522-1523 (11% Cir. 1995), it had upheld the abortion clinic provisions of the Access Act against an attack premised upon the Free Exercise of Religion Clause of the First Amendment and the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb-2 to 2000bb-4. The U.S. Department of Justice, swb silentio, declined Petitioners’ invitation to ' The Chief Justice, in his concurring opinion in Upper Skagit Indian Tribe v. Lundgren, ___ U.S. __, , 188 S. Ct. 1649, 1656 (2018), observed: I do not object to the Court’s determination to forgo consideration of the immovable-property rule at this time. But if it turns out that the rule does not extend to tribal assertions of rights in non-trust, non-reservation property, the applicability of sovereign immunity in such circumstances would, in my view, need to be addressed in a future case. See, Michigan v. Bay Mills Indian Community, 572 U.S. 782, 799, n. 8 (2014) (reserving the question ; whether sovereign immunity would apply ifa “plaintiff who has not chosen to deal with a tribe [] has no alternative way to obtain relief for off-reservation commercial conduct”). ; . defend, before the Court of Appeals, the constitutionality of the “place of religious worship” provisions of the Access Act against an “as applied” attack under the Establishment and Free Exercise Of Religion Clauses of the First Amendment to the Constitution. Consequently, the Court of Appeals’ refusal, in this case, to enforce the “place of religious worship” provisions of the Access Act came about without the involvement of the Department of Justice. , The (a) extra-territorial scope of Native American tribal sovereign immunity from civil litigation and (b) constitutionality, as applied, of the “place of religious worship” provisions of the Access Act are significant issues warranting the issuance of a W