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.”
Kagan wrote that “Michigan could bring suit against tribal officials or employees (rather than the Tribe itself) seeking an injunction for, say, gambling without a license… And to the extent civil remedies proved inadequate, Michigan could resort to its criminal law, prosecuting anyone who maintains—or even frequents—an unlawful gambling establishment.”
Kagan noted, too, that states can choose to add waivers of immunity to compacts with tribes made under IGRA, if they wish to sue a tribe for participating in off-reservation gaming.
“Michigan contends that these alternative remedies may be more intrusive on, or less respectful of, tribal sovereignty than the suit it wants to bring,” Kagan added in a footnote. “Bay Mills, which presumably is better positioned to address that question, emphatically disagrees. And the law supports Bay Mills’ position: Dispensing with the immunity of a sovereign for fear of pursuing available remedies against its officers or other individuals would upend all known principles of sovereign immunity.”
In her concluding opinion, Kagan once again noted the importance of Congress in federal-tribal dealings. “If Congress had authorized this suit, Bay Mills would have no valid grounds to object,” she wrote. “But Congress has not done so: The abrogation of immunity in IGRA applies to gaming on, but not off, Indian lands. We will not rewrite Congress’s handiwork.”
Upon issuance of the opinion, speculation in Indian country soon turned to whether tribes should be more aggressive in pursuing legal arguments that could strengthen their sovereignty at John Roberts’ Supreme Court.
“The court’s decision is an important victory for all of Indian country,” said Joseph Webster, a partner with Hobbs Straus who filed an amicus brief supporting Bay Mills on behalf of several other tribes. “However, the fact that the decision was 5-4 is a reminder that tribal rights remain threatened. Litigation is inherently uncertain, and tribal leaders must weigh the risks of a negative decision in deciding whether and how to litigate a particular dispute, including whether to seek Supreme Court review.”
“Yes, tribes should be bold,” said Joe Valandra, former chief of staff at the National Indian Gaming Commission. “Perhaps that is the lesson from Bay Mills, when the stakes are highest, bold action may be the answer.
“Most tribes are poor and are located in very tough areas for meaningful economic development,” Valandra added, noting that he was one of the people initially calling for caution. “How could anyone tell those tribes to not be bold in doing what it takes to provide for essential needs and the preservation of culture?”