The shuttered Bay Mills Indian Community casino in Vanderbilt, Michigan. Photo © Bay Mills News
The U.S. Supreme Court wrestled with sovereign immunity and procedural issues as it heard Michigan v. Bay Mills Indian Community, an Indian gaming case, on Monday. Tribes are immune from lawsuits without an explicit waiver that could come through an agreement like a Class III gaming compact. It could also happen under a federal law, such as the Indian Gaming Regulatory Act. Neither situation appears to apply to the Bay Mills Indian Community of Michigan, an issue that was raised repeatedly during the one-hour hearing in Washington, D.C. "It seems to me if a tribe wants to open a casino and the state has to -- it has to have a compact with the state. Isn't all the bargaining power on the -- on the side of the state?" Justice Samuel Alito pointed out, according to the transcript of the oral argument. "So the state says, fine, if you want to do that, you have to waive sovereign immunity." Michigan Solicitor General John J. Bursch acknowledged more than once that the tribe did not waive its immunity under the compact even though the agreement provides for arbitration when disputes arise. Instead he argued that state sovereignty trumps tribal sovereignty. "Now, the bigger sovereignty point is that if a foreign country, if France or Haiti came in and opened the same casino, the state would have the full panoply of remedies available to it," Bursch told the court. "And it should have those remedies because any additional immunity you give to the tribe when it's engaging in illegal conduct on lands subject to Michigan's exclusive jurisdiction, you are necessarily taking away from the sovereign authority of the state of Michigan." A second issue was whether Michigan was the proper party to bring the case to the Supreme Court. The federal judge who first heard the lawsuit ordered the Bay Mills Indian Community to shut down its off-reservation casino on a motion that was filed by the Little Traverse Bay Bands of Odawa Indians. "The district court explicitly said in its order granting the injunction that the state hadn't filed an injunction, hadn't intervened and had only filed supporting papers in support of Little Traverse's case,' Justice Sonia Sotomayor said. "I'm a little -- I'm very, very confused as I looked at what the district court said," Sotomayor added. "It explicitly said you weren't part of the order." The tribe argued that the state should have invoked the arbitration provisions in the compact. And the tribe hasn't gotten a chance to prove that the casino is located on land that can be used for gaming even though it's not currently in trust or restricted status. The Obama administration is supporting the tribe. The Department of Justice argued that the tribe has not waived its immunity. A decision in the case is expected in spring 2014. Get the Story:
US Supreme Court hears Bay Mills casino case with implications for tribal gaming, sovereign immunity (MLive 12/2)
Supreme Court takes on Bay Mills casino controversy (Up North Live 12/2)
US Supreme Court seems wary in American Indian casino case (AP 12/2)
Native Americans face casino limits as supreme court weighs Michigan case (The Guardian 12/2)
Supreme Court hears arguments over Michigan's bid to shut tribal casino (The Detroit News 12/3)
High Court hears arguments over tribal immunity in Michigan case (The Detroit Free Press 12/3)
Arguments made in Bay Mills casino case in U.S. Supreme Court (The Petoskey News-Review 12/3) Supreme Court Documents:
Oral Argument Transcript | Order List | Docket Sheet No. 12-515 6th Circuit Decision:
Michigan v. Bay Mills Indian Community (August 15, 2012) Related Stories:
Supreme Court takes up Bay Mills off-reservation gaming case (12/2)
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