Jefferson Keel/John Echohawk: Supreme Court takes up gaming

With this background, we recently read the State of Michigan’s opening brief in Michigan v. Bay Mills Indian Community–a case granted review by the Court even though the United States had filed a brief recommending that cert be denied. Although this litigation should be about the merits of Bay Mills’ claims under the Michigan Indian Land Claims Settlement Act to conduct gaming on lands acquired with settlement funds—it is not. In its current posture before the Court, the State of Michigan is using this case to mount a full frontal attack on tribal sovereign immunity and the authority of states to regulate “gaming activity” under the Indian Gaming Regulatory Act (IGRA).

First, Michigan asks the Court to examine “IGRA as a whole” to find Congressional intent to waive of tribal sovereign immunity or, in the alternative, to overrule Santa Clara Pueblo and apply a “less strict standard” when considering whether legislation such as IGRA abrogates tribal sovereign immunity. Second, if the statutory arguments are not successful, Michigan asks the Court to recognize that tribal sovereign immunity “is a federal common law doctrine” created by this Court and subject to adjustment by this Court. Thus, according to Michigan, the Court should narrowly read Kiowa as a “contract-based ruling” and (at the extreme) hold that a tribe’s immunity is limited to its on-reservation governmental functions.