SUPREME COURT to Hear Argruments Into TRIBAL SOVEREIGN IMMUNITY

Here is an opportunity for those harmed by their tribes, and tribal councils to ramp up their communication.  Ask the BIA, The JUSTICe DEPARTMENT to stand up for YOUR RIGHTS too.

The United States Supreme Court announced that it will hear arguments in the case of Michigan v. Bay Mills Indian Community on December 2, 2013.  The parties will address two questions in the case: (1) Whether a federal court has jurisdiction to enjoin activity that violates IGRA but takes place outside of Indian lands; and (2) Whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands.

A negative outcome in this case will adversely impact tribal sovereignty.  Sovereign immunity is a critical legal doctrine that protects all governments, including tribal governments, from potentially endless lawsuits that would deplete tribal treasuries and cripple governmental functions.

Proposed Action

Tribes are calling on the United States (the National Indian Gaming Commission, the U.S. Department of the Interior, and the U.S. Department of Justice) to take action under existing federal authority that could moot the case and prevent a negative Supreme Court decision.  In particular, the U.S. Department of the Interior could issue a final agency decision on the land status of the Vanderbilt casino, permitting the status of the land to be determined on its legal merits in Federal Court, thereby removing the issue of tribal sovereign immunity from the pending U.S. Supreme Court decision. To date, the Government has refused to intervene. 

Tribes are also asked to not to file individual briefs in the Bay Mills case but rather to sign on to a single united amicus brief that is being developed by the Tribal Supreme Court Project.  NIGA has joined the Tribal Supreme Court Project brief and is encouraging NIGA member tribes to join as well. 

Case Background

The Bay Mills Indian Community purchased land in Vanderbilt, Michigan in August of 2010 with proceeds from a trust fund established pursuant to the Michigan Indian Land Claims Act of 1997.  The Tribe then opened a gaming facility on the land on November 3, 2010.  Bay Mills takes the legal position that any lands purchased with MILCSA trust funds are lands eligible for tribal gaming under Section 20 of IGRA.

The State of Michigan filed suit in federal court in December of 2010, originally claiming that the Tribe violated the terms of the gaming compact and IGRA.  The Little Traverse Bay Bands of Odawa Indians joined the lawsuit.  While not directly settling the Indian lands question, the district court issued an opinion that the Vanderbilt land would "likely" not qualify as Indian lands under IGRA, and it issued an injunction enjoining Bay Mills from operating its casino on the Vanderbilt property.  The facility has remained closed since March 2011.

Bay Mills, asserting sovereign immunity, filed an appeal.  The Court of Appeals for the Sixth Circuit reversed - again without addressing the Indian lands question. The Sixth Circuit held that federal courts lack subject matter jurisdiction under IGRA over an allegation that the Tribe's casino is not on Indian lands, and that the other claims brought by the State are barred by the doctrine of tribal sovereign immunity.

With regard to the Indian lands question, both the Solicitor of the U.S. Department of the Interior and the National Indian Gaming Commission have issued legal opinions that the Vanderbilt site does not qualify as "Indian lands" under the IGRA.  However, neither agency has formalized the Indian lands decision, which would constitute final agency action. 

As a result, the status of the Bay Mills' Vanderbilt land is in legal limbo, BUT the appeals in the underlying case move forward to the dangerous territory of the U.S. Supreme Court. Since 2005, with John Roberts as Chief Justice, tribal governments have a record of 1 win and 9 losses in the 10 Indian law cases heard by the Roberts Court. 

As noted above, the case is scheduled for oral argument before the Supreme Court on December 2, 2013 and attorneys general from seventeen different states have joined the State of Michigan.

The State of Michigan and the various state attorneys general are using this case to directly attack tribal sovereign immunity and insert the authority of states to regulate Indian gaming under IGRA. Michigan has asked the Court to examine "IGRA as a whole" to find Congressional intent to waive tribal sovereign immunity.  In the alternative, Michigan asks the Court to overrule Santa Clara Pueblo and apply a lesser standard when considering whether federal laws (such as IGRA) abrogate tribal sovereign immunity.  Finally, Michigan is asking the Court to recognize that tribal sovereign immunity is a "common law doctrine" created by the Supreme Court and subject to adjustment by the Court.

If you have any questions regarding this alert please contact Danielle Her Many Horses, Deputy Director with any questions you have regarding this alert.