On May 27, 2014 the Supreme Court issued a ruling on a tribal immunity case, Michigan v. Bay Mills Indian Community. Here is the link to their decision: http://www.scotusblog.com/case-files/cases/michigan-v-bay-mills-indian-community/ .
It was a narrow case with a decision rendered on one specific issue. In a five to four decision the Supreme Court held that Michigan’s lawsuit against the Bay Mills Indian Community to stop a tribal casino operating outside of Indian lands was barred by tribal sovereign immunity.
Its decision appears be limited to the specific facts involved in this case. Tribes that rely on this decision to engage in off-reservation commercial activity now know that they may not be able to rely on the Bay Mills decision for broad immunity, especially if an aggrieved plaintiff has no other remedies available.
The decision reinforces the loophole that states can sue tribes for illegal gaming activity on Indian land but they can’t sue them for the same activity on off-Indian lands. Whether and how this decision applies to principles of tribal sovereignty involving future off-reservation commercial activities remains open, and one area that the Court purposefully left open. Indian Tribes throughout the country did not gain an outright win with the Court’s opinion.
Michigan remains able to deny a license for an off-reservation casino. If the tribe went ahead with the project anyway, Michigan still retains the right to sue tribal officials to stop the gaming activity and, if necessary, invoke its criminal laws. In addition, any state can still seek a waiver to allow lawsuits for off-reservation gaming activity as part of their compact with a tribe regarding on-reservation gaming.
This decision does not speak to the unique Arizona v. Tohono O’odham situation. It’s effect upon current litigation is questionable at best. In other words, this decision does nothing to advance or deny either side’s position on the proposed casino in Glendale. It is still expected that Rep. Trent Franks’ bill, HB 1410, will be voted up or down in the US Senate this summer.
© Joyce Clark, 2014
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