US Supreme Court To Hear Case With Implications on Tribal Sovereign Immunity

Misuse of tribal immunity, in some cases where tribes use it as a club to beat the weak and helpless, could send a shockwave through Indian Country.

A small, shuttered casino in a tiny northern Michigan town is at the center of a case coming before the U.S. Supreme Court today that could redefine when American Indian tribes can be sued and under what conditions. A far-reaching decision — if the court makes one — could impact all sorts of commercial activities taken by tribes: from casino gambling to payday lending, and give state governments more leeway to sue American Indian groups.

As it stands now, the federal government can file suit against a tribe, but states are largely barred from doing so unless a tribe either has agreed to waive its sovereign immunity or had it abrogated by Congress. But the Michigan attorney general’s office is arguing that immunity shouldn’t stop its suit to block the Bay Mills tribe from opening a casino outside of tribal lands, since the federal government has so far declined to act. Otherwise, the state claims, the law seems to set up a contradiction in which Indian casinos are governed by federal and state authorities on tribal lands, but are outside their reach off-reservation. “The sky will not fall if blanket tribal immunity goes away,” state lawyers said last week in the case against the tribe, which in 2010 tried to open a casino in Vanderbilt, a small town about 50 miles south of the Mackinac Bridge.

Tribes see it far differently, however, with worries that a Supreme Court decision could open them up to a flurry of lawsuits discouraging off-reservation activities, including tribal law enforcement and cross-governmental agreements.

The implications are so great that the National Congress of American Indians — the oldest of tribal rights groups, representing hundreds of tribes — asked the U.S. Interior Department to settle the case before the court hears it. 

 But the federal government has largely stayed out of it, other than declaring the Vanderbilt property — more than 100 miles from the tribe’s Upper Peninsula reservation — to not be “Indian lands” for casino purposes. In a court brief, the federal government said there should be other means of settling the argument but counseled against any change to sovereign immunity, a policy that furthers tribal “self determination and economic development.”

 Without the federal government stepping in, tribes are anxious the court will accept Michigan’s argument — more than a dozen other states are in support of the state’s position — and reinterpret the immunity doctrine. “The state is really asking for a deep intrusion into tribal unity. ... You could be sued for anything,” said John Dossett, the NCAI’s general counsel. “The federal government has really kind of punted on this thing when they shouldn’t have.” Even the NCAI considers Bay Mills’ move to be a “test case” of the law.

Using interest from a settlement with the U.S., the tribe bought the Vanderbilt land more than 100 miles from its reservation in Brimley, in the Upper Peninsula. The tribe — which has long pursued casino sites in the Lower Peninsula, including in Port Huron — argued that the land should be available for tribal gambling since it was purchased through the proceeds of a land settlement. Under the settlement, interest was to be used “for improvements on tribal land or the consolidation and enhancement of tribal landholdings through purchase or exchange.” Any land bought was to be “held as Indian lands are held.”

But the U.S. and Michigan deemed the new property to not be “Indian lands” for the purpose of gambling, a fact that has revealed an apparent contradiction in the law: The relevant law controls gambling on reservations, not off them. While no one questions the federal government’s authority to bring suit, the state’s authority — the tribe argues — is nonexistent under tribal immunity. To that, the state says its nonsensical to think Congress intended to limit gambling on tribal land but not off-reservation.

State Solicitor General John Bursch, who will argue the case, knows others suggest the issue could be settled through arbitration or alternative means, but that tribal immunity would trump any deal reached those ways, too. “Sovereign immunity by the tribe would bar our ability to enforce any ruling,” he said. “We’d be right back where we started.”  

Bursch said it wasn’t the state’s intention to move into the question of tribal immunity, but that the tribe, in defending itself, raised the issue. Now, it appears to be about the only one remaining. The court could be asked to draw a delicate balance between self-determination in Indian country and the rights of states to regulate their own territories. Absent an overt congressional directive, the state said in its most recent brief, there is no reason for the court to avoid considering the boundaries of immunity — if only to settle contradictory findings in courts across the U.S. Bay Mills, meanwhile, brings a strong team with it today led by Neal Katyal, a former acting U.S. solicitor general with a long history before the high court.