By David Page
The Daily Record Newswire
OKLAHOMA CITY — A U.S. Supreme Court ruling in a Michigan case is a major victory for tribal sovereign immunity, said D. Michael McBride III, director of the Indian Law and Gaming Practice Group for Crowe & Dunlevy.
In late May, a divided Supreme Court ruled that Michigan can’t block the opening of an off-reservation Indian casino because the state’s legal challenge is barred by tribal sovereign immunity.
The case – Michigan v. Bay Mills Indian Community – is important because during the last several decades Indian law cases before the Supreme Court have not gone well for the tribes, McBride said.
“The court had to revisit whether to preserve the doctrine of tribal sovereign immunity and whether to revisit and reverse its prior decision in Kiowa Tribe of Oklahoma v. Manufacturing Technologies,” McBride said.
The 1998 Kiowa ruling vacated a series of decisions from the Oklahoma Supreme Court that refused to recognize tribal immunity off tribal land.
While McBride was not involved in the Michigan case, he wrote a friend-of-the-court brief in the Kiowa case for the Seminole Nation and the Muscogee (Creek) Nation.
“It is a victory that the Supreme Court continues to support tribal immunity and tribal government against litigation,” he said.
While the Michigan case was a victory, it was close — a 5-4 decision — with a not-so-usual alignment of the justices.
The Supreme Court ruled that the state could not close the Bay Mills Indian Community casino about 90 miles from the tribe’s reservation. Michigan said the tribe opened the casino without permission of the federal government and in violation of a state compact. The tribe purchased land for the casino with money from a settlement with the federal government over allegations that it had not been properly compensated for land ceded in 1800s treaties.
Oklahoma was among 16 other states that submitted briefs in the case in support of Michigan.
Writing for the majority, Justice Elena Kagan said the federal Indian Gaming Regulatory Act only allows a state to bring lawsuits challenging casinos operating on Indian lands, according to an Associated Press report. But the Bay Mills casino was opened outside the tribe’s reservation, Kagan said, placing it outside the law’s coverage.
Since the casino does not fall under federal gaming laws, Kagan said it is subject to the ordinary tribal immunity that extends to off-reservation commercial activities. Kagan said it doesn’t matter that the casino was authorized, licensed and operated from the tribe’s reservation.
Kagan said Michigan officials have other options for dealing with the casino, including bringing a lawsuit against individual tribal officials or even prosecuting tribal members under criminal laws. She was joined in her opinion by Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer and Sonia Sotomayor.
Sotomayor wrote a concurring opinion detailing the history and comity against tribal sovereignty immunity, McBride said.
“One thing that jumped out at me is that Justice Sotomayor has a sympathetic and concurring opinion favoring the tribe,” McBride said. “It appears that Justice Sotomayor is emerging as a champion of tribal sovereignty.”
McBride said Kagan wrote the majority opinion with wit and flair, using gaming diction, including “that argument comes up snake eyes” and “to overcome these reasons for this court to stand pat, Michigan would need an ace up its sleeve.”
Four justices would have overruled the Kiowa ruling, McBride said. That would have eliminated tribal immunity for off-reservation commercial activity.
Justice Clarence Thomas said he disagreed with the court’s 1998 case extending tribal sovereign immunity to bar lawsuits arising from an Indian tribe’s commercial activities outside its territory, according to AP. In the 16 years since that decision, “tribal commerce has proliferated and the inequities engendered by unwarranted tribal immunity have multiplied,” Thomas wrote.
Thomas was joined in dissent by Justices Antonin Scalia, Ruth Bader Ginsburg and Samuel Alito.
Scalia also wrote a separate dissent to say that he had agreed with the court’s 1998 decision, but is now convinced that is was wrongly decided. Scalia said he would overrule that case “rather than insist that Congress clean up a mess that I helped make.”
Basically, the four dissenting justices said Kiowa was a mistake and the Supreme Court should overrule it, McBride said.
Even the majority opinion foreshadows trouble for tribes in other areas, particularity in individual tort claims and personal injury, he said.
The majority of the justices also acknowledged the ability of states to seek injunctive relief against tribal officials and to pursue criminal prosecution against gamers on tribally owned property not considered Indian lands, McBride said.
