Litigation | Opinion

Opinion: Congress unlikely to take away immunity after Bay Mills

Thursday, May 29, 2014

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

Attorney who covered the U.S. Supreme Court decision in Michigan v. Bay Mills Indian Community doesn't think Congress will take any action to address tribal sovereign immunity:

As the case unfolded before the Supreme Court, it looked initially as if it were a fairly small dispute, with Michigan officials – supported by other states – mainly asking the Justices to narrow the concept of tribal immunity. But, as the Justices worked on the case in private, over a span of nearly six months, it mushroomed into a full-scale debate over whether to cast aside altogether the 1998 decision and, with it, the concept of tribal immunity for businesses operated outside of reservation lands.
It was not clear, to outside observers, what was taking the court so long to reach its ruling. The explanation came with the release on Tuesday of the court’s final ruling. The main opinion was written by Justice Elena Kagan with the support of four other Justices. There was one concurring opinion, and three separate dissenting opinions, with the main one of those written by Justice Clarence Thomas.
The end result was that, once again, the majority chose to rely upon Congress to act – if it were inclined to do so – to deal with the scope of tribal immunity. It simply was not the task of the courts, the majority said, to reconsider the core doctrine of tribal immunity or to overrule the 1998 decision that had expanded that concept to businesses not on reservation lands.
If, as seems very likely, such immunity has been a boon to tribal business, the economic livelihood of the tribes is now even further assured, as the chances of Congress moving in to take away the immunity appear remote.

Get the Story:
Lyle Denniston: Constitution Check: Is it time for Indian tribes to stand on their own commercially? (The Constitution Daily 5/29)

More Legal Analysis:
Catherine F. Munson and Mark H. Reeves: SCOTUS affirms in Michigan v. Bay Mills Indian Community (Lexology.Com 5/27)
U.S. Supreme Court decision in Michigan v. Bay Mills Indian Community et al. (Lexology.Com 5/28)
Skip Durocher, Forrest K. Tahdooahnippah and James Nichols: U.S. Supreme Court reaffirms the doctrine of tribal sovereign immunity in Bay Mills decision (Lexology.Com 5/28)
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Supreme Court Decision:
Michigan v. Bay Mills Indian Community (May 27, 2014)