Opinion

Opinion: Strengthening sovereignty by addressing immunity

Tuesday, June 24, 2014

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

Ryan Seelau and Ian Record of the Native Nations Institute discuss what tribes can do to ensure the U.S. Supreme Court victory in Michigan v. Bay Mills Indian Community isn't short-lived:

So while Native nations can collectively breathe a sigh of relief with the Bay Mills opinion, a critical question remains: how can they keep this legal victory from being a short-lived one? Perhaps the most important outcome of this case is that it has given Native nations much-needed additional time to better protect tribal sovereign immunity and bolster tribal sovereignty -- by strengthening their governance systems.
This starts with Native nations assessing their own policies and procedures in order to prepare themselves for the inevitable day when tribal sovereign immunity is challenged once again. To this end, Native nations should consider developing comprehensive statutes that allow for remedies in all conceivable circumstances. The goal here would be to stave off or neutralize any forthcoming litigation by creating tribal causes of actions, procedures, and remedies in contexts that otherwise would end up in federal court. If sovereign immunity is not available for Native nations to fall back on to someday, this would not only include tort and contract cases, but also actions related to federal and/or state statutes that may prospectively apply to tribes.
In addition, Native nations should identify and pursue ways to confine risk by defining remedies. Native nations can then update insurance policies to reflect their new positions of risk. Beyond that, however, Native nations should determine which of their assets are only being protected through the use of tribal sovereign immunity, and then establish new and different ways to protect such assets. For example, Native nations should review all of their trust accounts and other economic and real property holdings to determine if they might be subject to litigation in a possible future without tribal sovereign immunity. In such a circumstance, investing in a top-notch trust attorney to help protect the tribal treasury and assets would be wise.

Get the Story:
Ryan Seelau & Ian Record: The Bay Mills Case: An Opportunity for Native Nations (Indian Country Today 6/24)

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