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Opinion analysis: Michigan draws a bottom pair, but Indian Country does not have a straight flush

In a five-to-four decision yesterday, the Supreme Court held that Michigan’s lawsuit against the Bay Mills Indian Community to enjoin a tribal casino operating outside of Indian lands was barred by tribal sovereign immunity.  Justice Kagan wrote the opinion for a non-ideological majority that included Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor.  Justice Sotomayor filed a concurring opinion.  Justice Thomas penned a dissenting opinion joined by Justices Scalia, Ginsburg, and Alito.  Justices Scalia and Ginsburg each filed a separate dissenting opinion.

The Indian Gaming Regulatory Act regulates gaming by Indian tribes.  Among other things, Section 2710(d)(7)(A)(ii) of IGRA provides that a tribe can engage in Class III gaming (i.e., Las Vegas-style casino gambling) on Indian lands pursuant to a compact between the state and the tribe.

Bay Mills purchased lands bought with funds established under the Michigan Indian Land Claims Settlement Act.  Bay Mills later opened a Class III gaming facility on those lands.  Michigan sued Bay Mills in federal district court to close the gaming facility by claiming, among other things, that IGRA requires Class III gaming to be conducted on Indian lands and the purchased lands did not qualify as Indian lands.  The district court entered a preliminary injunction against Bay Mills, ordering the tribe to shutter the gaming facility.

The U.S. Court of Appeals for the Sixth Circuit vacated the ruling and held that the federal court lacked jurisdiction over the case because Michigan’s pleading (necessarily) admits that the Bay Mills facility was not located on Indian lands.  The state also pleaded a claim under “federal common law” and two claims under state law.  For these claims, the state asserted federal-question jurisdiction under 28 U.S.C. § 1331.  The Sixth Circuit dismissed these claims based on Bay Mills’s sovereign immunity.

Michigan essentially proffered three theories to overturn the Sixth Circuit.  First, Michigan argued that IGRA should be interpreted to allow the suit because the Bay Mills tribal officials authorized and supervised the gaming that occurred on the lands in question from the tribe’s reservation, which is considered Indian land under IGRA.  The state claims that such authorization and supervision constitutes “gaming activity” on Indian lands, even though the facility is not located on Indian lands.

Second, the state argued that the Court should adopt a “holistic method” of interpreting IGRA, which would allow a state to sue a tribe for illegal gaming whether the gaming occurred on or off Indian lands.

Finally, the state argued that the Court should revisit its holding in Kiowa Tribe of Oklahoma v. Manufacturing Technologies and rule that tribes “have no immunity for illegal commercial activity” outside of Indian lands.

In its decision, the Court easily dispenses with Michigan’s first two theories of statutory interpretation, and the dissent does not take issue with the majority’s conclusions.

With regard to Michigan’s request that the Court reverse the Kiowa precedent, it is here that the majority and minority have placed their bets.

The majority makes several points in declining the invitation to reverse Kiowa.  It frames Kiowa relative to a long line of jurisprudence that supports the doctrine of tribal sovereign immunity.  The decision notes the importance of stare decisis and the fact that parties have subsequently relied on Kiowa.  It re-affirms the Court’s decision in Kiowa to decline to draw distinctions in tribal sovereign immunity depending on whether the activity in question is commercial or occurs on Indian lands.  Finally, it notes that Congress has plenary authority over the affairs of Indian tribes and that Congress could have waived tribal sovereign immunity after Kiowa, but it instead elected to let the Kiowa decision stand.

In declining to overturn Kiowa, the Court makes two significant points.  First, the Court notes that Michigan has several alternative remedies available to it relative to the operation of an illegally operating casino on lands subject to state jurisdiction (e.g., Michigan can sue individual tribal members or arrest patrons of the illegal casino).

Second, in footnote 8 of the decision, the Court writes, “We need not consider whether the situation would be different if no alternative remedies were available.  We have never for example, specifically addressed (nor, so far as we are aware, has Congress) whether immunity should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct.”  Justice Kagan implies that such cases might present the Court with a “special justification” to narrow Kiowa.  This footnote, plus the court’s overall reasoning, puts observers on notice that its decision may be limited to the specific facts involved in this case.  Tribes that rely on this decision to engage in off-reservation commercial activity are on notice that they may not be able to rely on Bay Mills for broad immunity, especially if an aggrieved plaintiff has no other remedies available to her.

The dissent would have overruled Kiowa as a bad decision whose justification has not withstood the test of time.  Justice Thomas, writing for the dissent, argues that the judge-made doctrine of tribal sovereign immunity should be interpreted narrowly.  In keeping with Justice Thomas’s prior writings on the subject, he implies that immunity should apply only where it is fundamental to protecting tribal government or regulating a tribe’s internal affairs.  The application of immunity to off-reservation, commercial activities do not protect either, in the view of Justice Thomas and the dissent.

The dissent and the concurring opinion of Justice Sotomayor also trade arguments over the principle of comity and the equities, or lack thereof, relative to tribal and state governments.  The dissent concludes that principles of comity favor Michigan, while Justice Sotomayor argues that those principles favor the Bay Mills.

Finally, the dissent takes issue with the majority’s characterization of Congress’s approval of the Kiowa precedent.  The dissent would not read any significance into Congress’s failure to overturn Kiowa by statute.

In the end, whether and how this decision applies to principles of tribal sovereignty involving future off-reservation commercial activities remains an open question, and one that the Court intentionally leaves open.  Outside of the facts specific to this case, Indian Country probably did not draw a straight flush with the Court’s opinion.


Recommended Citation: Markham Erickson, Opinion analysis: Michigan draws a bottom pair, but Indian Country does not have a straight flush, SCOTUSblog (May. 28, 2014, 10:37 AM),