Challenge of Off-Reservation Tribal Casino Goes to Supreme Court

Gale Courey Toensing
7/3/13

 

The U.S. Supreme Court will decide whether a state can challenge a tribe’s right to open a casino in a case involving a three-year old conflict over an off reservation tribal casino in northern Michigan.

The Bay Mills Indian Community has been locked in litigation filed by the State of Michigan and Little Traverse Band of Odawa Indians since 2010 when it opened a small new casino with 84 slot machines in Vanderbilt, Michigan, on off-reservation land without state or federal approvals. (Related story: Little Traverse, Michigan State Lawsuits Seek Bay Mills Casino Shut Down)

In its June 24 order list, the Supreme Court agreed to hear oral arguments in Michigan v. Bay Mills Indian Community during its next session in the fall. The case arrived at the high court after more than two years in lower courts. Both the state and Little Traverse argued in their federal lawsuits that Bay Mills violated various provisions of the tribal-state compact and the Indian Gaming Regulatory Act, including requirements that gaming is to be conducted on “Indian land” acquired before October 1988; land that is held in trust by the federal government or approved under a regulatory exception; or land that is restricted from alienation and over which an Indian tribe exercises governmental power.

In March 2011, the district court entered a preliminary injunction ordering Bay Mills to stop its gaming operation at Vanderbilt. Bay Mills appealed that ruling to the 6th Circuit Court of Appeals which held in August 2012 “that the district court lacked jurisdiction over some of the plaintiffs’ claims, and that Bay Mills’ sovereign immunity bars the others, at least in the configuration in which the suit comes to us now.” The 6th Circuit vacated the injunction last August and Michigan filed its petition for review with the high court last October.

The high court will not rule on the issue of whether the casino on off reservation land is legal; it will decide whether the state, represented by Attorney General Bill Schuette, has the legal standing to challenge a tribe’s right to open the casino. “The case is narrowly focused on the state’s ability to sue under the tribal-state compact — not the merits of the casino question itself,” Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University said on his blog.

The state’s petition presents two questions: “1. Whether a federal court has jurisdiction over a state’s claim brought under [the Indian Gaming Regulatory Act] seeking to enjoin gaming by an Indian tribe, where the state alleges that the gaming is not located on “Indian lands” within the meaning of the Indian Gaming Regulatory Act. 2. Whether [a section of the Indian Gaming Regulatory Act] abrogates an Indian tribe’s sovereign immunity with respect to a state’s claim that the tribe is gaming illegally, where the state alleges that the gaming is not located on Indian lands.”

The case, therefore, has broader implications both for Bay Mills, which hopes to open additional casinos on off reservation lands, for the Sault St. Marie Tribe of Chippewa Indians, which is embroiled in controversy over plans to build the Kewadin Casino in Lansing, Michigan, and potentially on other issues of tribal sovereignty.

The Bay Mills Indian Community says that the Vanderbilt property is part of the tribe’s independent territory purchased with money from a land settlement with the federal government. The tribe issued a press release in response to the news that the Supremes will review the appeals court ruling. “The Bay Mills Indian Community is deeply concerned by the U.S. Supreme Court’s decision to review this case as it is in any case where it appears the Court may examine the doctrine of tribal sovereign immunity,” Bay Mills Tribal Chairman Kurt Perron said. “We remain confident that the nation’s highest Court will agree with our position.” Perron said the tribe will prepare its arguments to convince the Supreme Court that the appeals court was correct in vacating the injunction against the Vanderbilt casino.

The Michigan attorney general announced the high court’s decision to take up the review on his website. "Today's ruling sets the stage for an important discussion about the states' ability to halt the unrestrained expansion of off-reservation tribal casino gambling," Schuette said. "We look forward to making our case before the nation's highest court this fall."

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