Bay Mills wins sovereign immunity case

by May 29, 2014Front Page, NEWS ka-no-he-da0 comments




The tiny Bay Mills Indian Community, located in Brimley, Mich., has won a sovereign immunity case that will have huge ripple effects throughout Indian Country.  The U.S. Supreme Court voted 5-4 to uphold tribal sovereignty in the case of Michigan v. Bay Mills Indian Community.

“Congress and the Supreme Court have long recognized that a state cannot interfere with an Indian tribe’s sovereignty,” Bay Mills officials said in a statement released the day of the decision on Tuesday, May 27.  “We are gratified that the Court reaffirmed that longstanding principle today.  Bay Mills, a federally recognized tribe, depends for its livelihood on revenues from gaming activities conducted in accordance with the Indian Gaming Regulatory Act.  The Court’s decision affords proper deference to Congress’ judgment, and it will ensure that tribes like Bay Mills can continue to fund tribal education and perform other sovereign functions.”

The state of Michigan sued Bay Mills four years ago.  Bay Mills entered into a compact with the state to operate a Class III gaming facility on their land.  The compact prohibited the tribe from opening a casino outside of their territory.  According to the opinion syllabus, “Bay Mills later opened a second casino on land it had purchased through a congressionally-established land trust.  The Tribe claimed it could operate a casino there because the property qualified as Indian land.  Michigan disagreed and sued the Tribe.”

A federal district court issued an injunction to have the casino closed, but the U.S. Court of Appeals for the 6th Circuit vacated that order.

Justice Elena Kagan delivered the concurring opinion of the Court and stated, “Sovereignty implies immunity from lawsuits…the abrogation of immunity in IGRA applies to gaming on, but not off, Indian lands.  We will not rewrite Congress’ handiwork.”

Joining Kagan in concurring were Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, and Sonia Sotomayor.

Justice Clarence Thomas issued the dissenting opinion, “In Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc. 523 U.S. 751 (1998), this Court extended the judge-made doctrine of tribal sovereign immunity to bar suits arising out of an Indian tribe’s commercial activities conducted outside its territory.  That was error.  Such an expansion of tribal immunity is unsupported by any rationale for that doctrine, inconsistent with the limits on tribal sovereignty, and an affront to state sovereignty.”

Joining Thomas in dissenting were Justices Antonin Scalia, Ruth Bader Ginsburg, and Samuel Anthony Alito Jr.

Reaction throughout Indian Country was filled with elation.

USET released a statement, “Today’s decision in Michigan v. Bay Mills Indian Community by the U.S. Supreme Court is quite simply an action by the Supreme Court to uphold existing law as already understood by Indian Country.  This decision is an important affirmation of Tribal inherent sovereignty in general, and of Tribal sovereign immunity in particular, both on and off reservation lands and as applied to a variety of activities.”

USET officials said the decision will be discussed further at its upcoming Semi-Annual Meeting in Bar Harbor, Maine on June 2-4.  “The majority decision identified certain forms of State authority over Tribal officials which will need to be examined closely, and may be of concern down the road.”

NCAI president Brian Cladoosby said in a statement, “This is a good day for tribal governments.  Congratulations to the Bay Mills Indian Community!  We always thought this case was an overreach by the State of Michigan.”

Native American Rights Fund executive director John Echohawk related, “I am pleased that the Court today stood upon the foundational principles of Indian law that we are all familiar with, instead of changing the rules on us all the time.”