Bay Mills Beats Michigan; Tribal Sovereign Immunity Upheld
Tribal sovereign immunity trumps Michigan’s desire to sue the Bay Mills Indian Community over an irksome off-reservation casino that’s been non-operational almost since the day it opened in 2010.
So ruled the U.S. Supreme Court May 27 in a 5 - 4 decision in a case that a plethora of national and legal tribal law experts had warned the tribe from the Eastern Upper Peninsula of Michigan not to take to the high court.
The overarching concern coming from tribal gurus was that tribal sovereign immunity – and thus, tribal sovereignty as a whole – could have been limited for all tribes given a negative Supreme Court ruling. Another immediate concern was that a loss at the court might have prevented many tribes from negotiating positive tribal-state gaming compacts under the Indian Gaming Regulatory Act (IGRA).
But Bay Mills leaders said their legal theory – that the tribe should be able to open an off-reservation casino about 125 miles from its reservation because it had used money garnered from a trust settlement to do so – was worth the risk.
Pan-tribal fears were alleviated and Bay Mills was vindicated by Justice Elena Kagan, writing for the majority, joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Anthony Kennedy and Stephen Breyer.
“Michigan’s suit against Bay Mills is barred by tribal sovereign immunity,” Kagan wrote, in upholding an important tenet of tribal sovereignty. Dissents came from Justices Ruth Bader Ginsburg, Antonin Scalia, Samuel Alito and Clarence Thomas.
Kagan noted that the “plain terms” of IGRA, which Michigan previously entered into a compact with the tribe for the tribe to be able to establish gaming, “do not authorize this suit.” She also said that for tribal sovereign immunity to be limited for the tribe, as Michigan wanted, Congress must do it, not the court, as the court has previously ruled that it cannot do so in a case such as this.
“[W]e (the Supreme Court) declined in Kiowa to make any exception [for waiving tribal sovereign immunity] for suits arising from a tribe’s commercial activities, even when they take place off Indian lands,” Kagan wrote.
It remains to be seen whether Bay Mills will re-open the shuttered casino, and if so whether Michigan will try to get it closed on other grounds. The tribe said in a statement that its citizens are “gratified” by the ruling and that the court’s decision will allow the tribe to “continue to fund tribal education and perform other sovereign functions.”
Still, there is reason for Bay Mills to proceed with restraint. Kagan cautioned that Michigan does not need to have tribal sovereign immunity struck down to be able to shut down an off-reservation casino that it deems illegal.
“True enough, a State lacks the ability to sue a tribe for illegal gaming when that activity occurs off the reservation,” Kagan wrote. “But a State, on its own lands, has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory. Unless federal law provides differently, ‘Indians going beyond reservation boundaries’ are subject to any generally applicable state law.”
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