NIGA welcomes ruling in Bay Mills off-reservation gaming case

Friday, May 30, 2014

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

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Tribal interests won a rare victory at the U.S. Supreme Court this week but the National Indian Gaming Association said it will pay close attention to the response from Congress.

The decision in Michigan v. Bay Mills Indian Community confirmed that tribes can't be sued without their consent. The court, however, noted that Congress can waive tribal immunity through statute.

"NIGA is pleased that the doctrine of tribal sovereign immunity remains intact and that the Supreme Court acknowledged our status as sovereigns under the Constitution and through treaties," the organization said on Thursday. "NIGA will monitor Congress' reaction to the Supreme Court's Bay Mills decision."

The issue, in fact, will the subject of a Senate Indian Affairs Committee hearing sometime this summer, NIGA said. But the venue will be a friendly one due to the number of pro-tribal advocates on the committee.

"Congress has repeatedly declined to legislatively weaken tribal sovereign immunity, in fact, in many statutes passed since Kiowa, the Congress has strengthened or acknowledged tribal sovereign immunity and jurisdiction," NIGA said, referring to the 1998 decision in Kiowa Tribe v. Manufacturing Technologies, a key precedent.

The Indian Gaming Regulatory Act, indeed, includes a waiver of tribal immunity. But the court said it only applies to activities that occur on "Indian lands."

The Bay Mills Indian Community of Michigan opened a casino on land that is not in trust or fee status. So the state can't sue for activity that occurs there, the majority concluded.

"Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian self-government," Justice Elena Kagan wrote for the majority.

The court also noted that the state, through the Class III compacting process, could demand a waiver of sovereign immunity to cover the Bay Mills situation.

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

Oral Arguments on the Indianz.Com SoundCloud:
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Relevant Documents:
Oral Argument Transcript | Supreme Court Docket Sheet No. 12-515 | Supreme Court Order List

6th Circuit Decision:
Michigan v. Bay Mills Indian Community (August 15, 2012)