Amy Howe posts an analysis of the U.S. Supreme Court decision in Michigan v. Bay Mills Indian Community:
Native Americans rarely win at the Court. But win they did today . . . at least on this issue and for now. In Michigan v. Bay Mills Indian Community, the Court divided five to four in an unusual line-up to hold that Michigan’s lawsuit against the tribe, seeking to block the tribe’s establishment of a casino on non-Indian lands, is barred by sovereign immunity. But the majority left open the possibility that the state could still accomplish its goal – shutting down the casino – through other means. In a five-to-four opinion by Justice Elena Kagan that was joined by the Chief Justice and Justices Kennedy, Breyer, and Sotomayor, the Court began with a survey of Court’s case law dealing with immunity for tribes. “The upshot,” the Court concluded, “is this: Unless Congress has authorized Michigan’s suit, our precedents demand that it be dismissed.” The Court agreed with the state that the Indian Gaming Regulatory Act “partially abrogates tribal sovereign immunity” by allowing a suit to enjoin gaming activity on Indian lands, but the Act does not come into play here because the gaming activity at issue in this case does not occur on Indian lands. The Court acknowledged the “apparent anomaly” in the law: although states can sue tribes for illegal gaming activity on Indian lands, they cannot sue them for the same activity off Indian lands. “But,” the Court continued, “this Court does not revise legislation . . . just because the text as written creates an apparent anomaly as to some subject it does not address.” And – significantly – even if the state can’t sue a tribe for off-reservation illegal gaming, it still “has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory.” Most state laws will apply to Indians off reservation, for example: Michigan “could, in the first instance, deny a license” for an off-reservation casino; if the tribe went ahead with the project anyway, it could sue tribal officials to stop the gaming activity and, if necessary, invoke its criminal laws. Moreover, states also could seek a waiver to allow lawsuits for off-reservation gaming activity as part of its compact with the tribe regarding on-reservation gaming.Get the Story: