Bids for Limitless Off-Reservation Casinos Turns Into Tragic Supreme Court Showdown

Homer A. Mandoka & Dennis V. Kequom
September 25, 2013

Indian country is all too familiar with the perils of taking cases before the U.S. Supreme Court. Even under the best legal circumstances, the high court has repeatedly handed down staggering losses that impact the most sacred issues to Indian country. That is why we are so concerned about a recent case the Supreme Court has decided to review that could severely limit tribal sovereignty for all of Indian country.

The case is Michigan vs. Bay Mills Indian Community which originated in late 2010 when the Bay Mills Tribe opened an off-reservation casino in Vanderbilt, Michigan, about 125 miles south of its reservation without proper approvals from federal and state governments. The Bay Mills Tribe, and its sister tribe Sault Ste. Marie, have argued in federal court that the Michigan Indian Land Claims Settlement Act of 1997 allows them to buy land anywhere in the United States to build a casino, so long as the land was purchased with land claim settlement trust funds. The two tribes assert they are not restricted by geography or quantity of casinos.

Both tribes have pursued federal litigation despite the fact that both the National Indian Gaming Commission and the Department of the Interior issued separate legal opinions concluding that Bay Mills claims are completely without merit.

The U.S. Supreme Court granted review of the Bay Mills case after the 6th Circuit Court of Appeals sided with the Tribe’s assertion that sovereign immunity prevents the State of Michigan from suing to close an illegal off-reservation casino. While we believe the State had the ability to close the casino under state law, Michigan’s attorney general felt the need to seek relief from the Supreme Court since no federal entity would step in and close the illegal Vanderbilt casino. We think it is safe to assume the Supreme Court did not grant review to affirm the lower court ruling.

All the Michigan gaming compacts contain a provision which states that no tribe shall pursue off-reservation gaming unless there is a written agreement between all the state’s federally recognized tribes to share in the revenue. In March, a federal district court judge ruled that this provision is legally binding on all Michigan tribes – putting both the Sault Tribe and Bay Mills in violation of the compact.

Now, the Bay Mills case presents two questions to the Supreme Court; whether federal courts have jurisdiction to enjoin activity that violates IGRA but takes place outside of Indian lands, and whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands. Given the Court’s recent decisions, we are deeply concerned the Court will cut away at the sacred doctrine of tribal sovereign immunity.

Off-reservation gaming has already created a strong backlash from Congress. It is unfortunate that some tribes who seek to build casinos far from their reservations are willing to risk the inherent sovereign rights of all tribes. Once again, Indian country finds itself before the Supreme Court in a case that should have never been considered in the first place.

Homer A. Mandoka is the chairman of the Nottawaseppi Huron Band of Potawatomi; Dennis V. Kequom is the chief of the Saginaw Chippewa Indian Tribe.