Opinion details: Victory for Native American tribes . . . for now?
Native Americans rarely win at the Court. But win they did today . . . at least on this issue and for now. In Michigan v. Bay Mills Indian Community, the Court divided five to four in an unusual line-up to hold that Michigan’s lawsuit against the tribe, seeking to block the tribe’s establishment of a casino on non-Indian lands, is barred by sovereign immunity. But the majority left open the possibility that the state could still accomplish its goal – shutting down the casino – through other means.
In a five-to-four opinion by Justice Elena Kagan that was joined by the Chief Justice and Justices Kennedy, Breyer, and Sotomayor, the Court began with a survey of Court’s case law dealing with immunity for tribes. “The upshot,” the Court concluded, “is this: Unless Congress has authorized Michigan’s suit, our precedents demand that it be dismissed.” The Court agreed with the state that the Indian Gaming Regulatory Act “partially abrogates tribal sovereign immunity” by allowing a suit to enjoin gaming activity on Indian lands, but the Act does not come into play here because the gaming activity at issue in this case does not occur on Indian lands.
The Court acknowledged the “apparent anomaly” in the law: although states can sue tribes for illegal gaming activity on Indian lands, they cannot sue them for the same activity off Indian lands. “But,” the Court continued, “this Court does not revise legislation . . . just because the text as written creates an apparent anomaly as to some subject it does not address.” And – significantly – even if the state can’t sue a tribe for off-reservation illegal gaming, it still “has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory.” Most state laws will apply to Indians off reservation, for example: Michigan “could, in the first instance, deny a license” for an off-reservation casino; if the tribe went ahead with the project anyway, it could sue tribal officials to stop the gaming activity and, if necessary, invoke its criminal laws. Moreover, states also could seek a waiver to allow lawsuits for off-reservation gaming activity as part of its compact with the tribe regarding on-reservation gaming.
The Court also declined the state’s invitation to revisit its earlier decision in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, holding that tribes have immunity from suit for commercial activities off Indian lands. The Court emphasized, among other things, that it “does not overturn its precedents lightly” – particularly when, as in here, “Congress exercises primary authority in this area and ‘remains free to alter what we have done.’”
Justice Sotomayor wrote a separate, eleven-page concurring opinion to “further detail why both history and comity counsel against limiting Tribes’ sovereign immunity in the manner the principal dissent advances.”
Justice Scalia wrote a separate, one-paragraph dissent to express his view that “Kiowa was wrongly decided”; Scalia also joined the principal dissent, by Justice Thomas (which was also joined by Ginsburg and Alito). In the dissent’s view, the Court in Kiowa “adopted a rule without a reason” and should have reversed course here. Justice Ginsburg also wrote a brief separate dissent to express her view that “the Court has carried beyond the pale the immunity possessed by States of the United States.”