Supreme Court backs Bay Mills in off-reservation gaming case

The shuttered Bay Mills Indian Community casino in Vanderbilt, Michigan. Photo © Bay Mills News

In a rare victory for tribal interests, the U.S. Supreme Court today ruled that the Bay Mills Indian Community can't be sued by the state of Michigan due to sovereign immunity.

The deeply divided court relied on the plain language in the Indian Gaming Regulatory Act in ruling for the tribe. The law does not waive immunity for activities that do not occur "on Indian lands" -- the off-reservation site at issue is located on fee land.

"We hold that immunity protects Bay Mills from this legal action," Justice Elena Kagan wrote for the majority. "Congress has not abrogated tribal sovereign immunity from a state’s suit to enjoin gaming off a reservation or other Indian lands."

"Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian self-government," Kagan wrote later, referring to the plain text of IGRA.

The decision also speaks to a larger legal and philosophical dispute that goes beyond IGRA. In refusing to overturn precedents involving tribal immunity, the majority clearly rejected the notion that tribal sovereignty is somehow weakened when "commercial" activities, such as gaming, are involved.

"We ruled that way for a single, simple reason: because it is fundamentally Congress’s job, not ours, to determine whether or how to limit tribal immunity," Kagan wrote. "The special brand of sovereignty the tribes retain—both its nature and its extent—rests in the hands of Congress."

Kagan's views, however, were only shared by four other justices. Although the five votes were enough to bring victory for Bay Mills, the dissent underscores the contested and controversial nature of tribal immunity.

Justice Antonin Scalia, Justice Clarence Thomas and Justice Ruth Bader Ginsburg all authored dissents. The mix partially explains why the court took so long to issue its decision -- oral arguments were heard on December 2, 2013, and the case was one of the oldest on the docket as of this morning.

"What it tells us is that the court is struggling," Richard Guest, an attorney with the Native American Rights Fund accurately predicted when he spoke to tribal leaders at a National Congress of American Indians conference in Washington, D.C., in March.

Guest and other tribal advocates were worried that the court would overturn its immunity precedents, namely the 1998 decision in Kiowa Tribe v. Manufacturing Technologies. That fear came to pass but Scalia, in a very short dissent, said he would have done just that.

"Rather than insist that Congress clean up a mess that I helped make, I would overrule Kiowa," Scalia wrote, referring to his agreement with the 1998 ruling that he now says was "wrongly decided."

Thomas was more expansive in his dissent. In addition to arguing that tribal immunity should be only valid in the tribe's own court system, he said the Bay Mills Indian Community doesn't deserve to have its sovereignty respected in the U.S. courts.

"At bottom, comity is about one sovereign respecting the dignity of another," Thomas wrote. "But permitting immunity for a tribe’s off-reservation acts represents a substantial affront to a different set of sovereigns -- the states, whose sovereignty is guaranteed by the Constitution."

Ginsburg joined Thomas in his dissent so she too came down against tribal immunity. But she wrote separately to express her disagreement with the 1998 Kiowa decision -- she sat on the court at the time, just like Scalia.

"[T]his court’s declaration of an immunity thus absolute was and remains exorbitant," Ginsburg wrote.

However, Ginsburg believes the same principle should extend to state immunity. She referenced the 1996 decision in Seminole Tribe v. Florida in which the court held that the Seminole Tribe can't sue Florida for refusing to negotiate a Class III gaming compact.

"Neither brand of immoderate, judicially confirmed immunity, I anticipate, will have staying power," Ginsburg wrote in her discussion of tribal and state sovereignty. Tribes have been asking Congress, unsuccessfully, to address the 1996 ruling.

The majority opinion and the three dissents were accompanied by a concurring opinion from Justice Sonia Sotomayor. She was extremely supportive of tribal interests and dismissed the arguments advanced by Thomas.

"If tribes cannot sue states for commercial activities on tribal lands, the converse should also be true," Sotomayor wrote. "Any other result would fail to respect the dignity of Indian tribes."

With the ruling finally in hand, state authorities across the nation are at a critical juncture in their campaign to erode tribal immunity. Having lost the case, Michigan Attorney General Bill Schuette is now likely to lose another off-reservation gaming dispute involving the Sault Ste. Marie Tribe of Chippewa Indians.

The 6th Circuit Court of Appeals sided with the tribe and held that the suit was barred by sovereign immunity. But the case was put on hold in order for Schuette to appeal to the Supreme Court.

Schuette's petition is due June 16, according to the Supreme Court's docket sheet. It's possible that he might withdraw it because Bay Mills didn't go his way.

Alabama Attorney General Luther Strange faces another defeat in his campaign against the Poarch Band of Creek Indians. He's trying to sue the tribe for gaming activities that occur on the reservation despite what seems to be clearly settled law.

Separately, the tribe is facing two dram shop lawsuits from private citizens. Although the cases are very different from the Strange's challenge, it's possible that the Supreme Court's ruling might affect how the Alabama court system treats the tribe's immunity.

Over in Oklahoma, Attorney General Scott Pruitt sued the Kialegee Tribal Town for trying to build a casino on an Indian allotment. That case has been on hold for more than a year but it will move forward now that the Supreme Court has ruled in Bay Mills.

"Winning this is big," Ho-Chunk Inc. President and CEO Lance Morgan, said today. "I teach that sovereign immunity is critical to expansion of our rights, otherwise states will attack us into to dust."

Ho-Chunk Inc is the economic development corporation of the Winnebago Tribe of Nebraska. Ho-Chunk Inc. owns Indianz.Com.

Today's case is Michigan v. Bay Mills Indian Community.

Supreme Court Decision:
Michigan v. Bay Mills Indian Community (May 27, 2014)