Bay Mills Opinion First Impressions — Dodging the Biggest Bullet Since Worcester

The Bay Mills Indian Community and the rest of Indian country dodged a very large bullet aimed by the State of Michigan at a core principle of inherent tribal sovereignty and tribal governance with today’s opinion by Justice Kagan. The stakes were incredibly high for tribal interests, and may remain so for the foreseeable future as more sovereign immunity cases work their way through the pipeline. In fact, Justice Kagan pointed out that several possible fact patterns that might justify serious reconsideration (“special justification”) are not before the Court:

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. The argument that such cases would present a “special justification” for abandoning precedent is not before us. Arizona v. Rumsey, 467 U. S. 203, 212 (1984).

Slip op. at 16 n. 8.

Turning away from the statutory and common law immunity analyses for a moment, it remains to be seen what Bay Mills has won here. Justice Kagan’s opening paragraph concludes with this phrase:

Michigan must therefore resort to other mechanisms, including legal actions against the responsible individuals, to resolve this dispute.

Slip op. at 1.

Later, she elaborates on the mechanisms Michigan might employ to defeat the underlying issue here — whether Bay Mills can open an off-reservation casino on lands acquired under the Michigan Indian Land Claims Settlement Act. Michigan has many advantages, it would appear, stemming from the tribe’s movement off the reservation:

And the resulting world, when considered functionally,is not nearly so “enigma[tic]” as  Michigan suggests. Reply Brief 1. True enough, a State lacks the ability to sue a tribe for illegal gaming when that activity occurs off the reservation. But a State, on its own lands, has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory. Unless federal law provides differently, “Indians going beyond reservation boundaries” are subject to any generally applicable state law. See Wagnon v. Prairie Band Potawatomi Nation, 546 U. S. 95, 113 (2005) (quoting Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973)). So, for example, Michigan could, in the first instance, deny a license to Bay Mills for an off-reservation casino. See Mich. Comp. Laws Ann. §§432.206–432.206a (West 2001). And if Bay Mills went ahead anyway, Michigan could bring suit against tribal officials or employees (rather than the Tribe itself) seeking an injunction for, say, gambling without a license. See §432.220; see also §600.3801(1)(a) (West 2013) (designating illegal gambling facilities as public nuisances). As this Court has stated before, analogizing to Ex parte Young, 209 U. S. 123 (1908), tribal immunity does not bar such a suit for injunctive relief against individuals, including tribal officers, responsible for unlawful conduct. See Santa Clara Pueblo, 436 U. S., at 59. And to the extent civil remedies proved inadequate, Michigan could resort to its criminal law, prosecuting anyone who maintains—or even frequents—an unlawful gambling establishment.See Mich. Comp. Laws Ann. §§432.218 (West 2001),750.303, 750.309 (West 2004). In short (and contrary to the dissent’s unsupported assertion, see post, at 11), the panoply of tools Michigan can use to enforce its law on its own lands—no less than the suit it could bring on Indian lands under §2710(d)(7)(A)(ii)—can shutter, quickly and permanently, an illegal casino.

Slip op. at 12-13.

I count several state law mechanisms; however, all are untested. Michigan has teed up a suit against tribal officials for injunctive relief. I guess we move there next, unless BMIC pays up and settles for a large percentage of off-reservation gaming revenues.

Also, the majority highlights two mechanisms expressly endorsed by counsel for the tribe at oral argument that I imagine most tribal leaders, perhaps even Bay Mills’, are not happy about: suing tribal officials for injunctive relief and utilizing state criminal laws. In this respect, the opinion (from the perspective of tribal interests) is tainted.

In the end, perhaps the biggest winner will be the Sault Ste. Marie Tribe of Chippewa Indians, which is making similar arguments as Bay Mills in favor of a Lansing MI casino, but has a somewhat stronger argument under the terms of the Michigan Indian Land Claims Settlement Act. Expect to see a denial of Michigan’s cert petition in the fall.

Finally, an most importantly, this is a lesson to Indian country on what kinds of cases are winnable, if not all the time (see Adoptive Couple) — statutory interpretation cases. Cases with common law aspects that can be argued as statutory interpretation cases like Bay Mills should be argued that way if at all possible.

 

 

SCOTUS Affirms in Michigan v. Bay Mills Indian Community

More details ASAP.

Opinion here. (PDF)

Federal Court Dismisses FTCA Claim against US for Failure to Stop Drunk Driving Death on the Rosebud

Here are the materials in Sorace v. United States (D.S.D.):

8 US Motion to Dismiss

14 Sorace Opposition

15 US Reply

18 DCT Order

SCOTUS Denies Village of Hobart v. Oneida Indian Nation

Order list here.

Cert petition here. Cert opp briefs here.

Lower court materials here.

NNABA Survey Deadline — May 30

 

WWW.NATIVEAMERICANBAR.ORG

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A Message from Nextions – “We’re almost there!”

Hi, NNABA Members and Native American Attorneys:

NNABA’s ground-breaking study is closing on May 30.  Please take time out during the next week to complete the study and be a part of history!  We need 500 responses, and we are almost there.

Please read the message below from NNABA’s research firm, Nextions.

Thanks so much for your participation in the study, and have a wonderful week.

Sincerely,

Mary Smith

NNABA President

 

Message from Nextions

If you have not already done so, now is the time to contribute your perspectives to this groundbreaking study on the experiences of Native American attorneys in the US. Your voice is necessary to make sure that our collective experiences are accurately described and understood. Without this research – and your voice in it – we cannot effectively advocate for increasing Native American attorneys’ access to and advancement in the legal profession. So, if you have not taken the survey already, please do so. If you have already taken the survey, reach out to your network and encourage other Native American attorneys to do the same. The survey can be taken at the link below and will be closing on Friday, May 30th, 2014.

http://www.surveymethods.com/EndUser.aspx?7F5B372E7834232D78
Research is a powerful tool through which we can advocate for change that we need. Here is a link to a recent study we did on the impact of implicit bias that you may find interesting: http://www.nextions.com/wp-content/files_mf/13972237592014040114WritteninBlackandWhiteYPS.pdf.

Mahalo,

The Nextions Team
www.nextions.com

For more information contact 480-727-0420 or visit www.nativeamericanbar.org

Tenth Circuit Rejects Tribal Carriers Challenge to FCC Funding Cuts

Here are the materials relevant to tribal carriers in the matter captioned in re FCC 11-161:

CA10 Opinion

Tribal Carriers Principal Brief

Federal Response to Tribal Carriers

Tribal Carriers Reply Brief

 

Shoshone-Bannock Tribes v. FMC Corp. — Tribal Appellate Court Finds Jurisdiction over Nonmember Phosphate Plant — Opinion Now Available

Here:

FMC – Opinion Order Findings of Fact and Conclusions of Law (2014)

35-3 Tribal Appellate Court Decision June 2012 Part 1

35-4 Tribal Appellate Court Decision June 2012 Part 2

Prior post here.

NAICJA Training: Holistic Approach to Civil and Criminal Legal Assistance in Tribal Justice Systems — May 27-28, 2014

Here:

NAICJA Training Event in Marysville WA-Remaining Space

Description:

This training, which NAICJA developed with a BJA grant, will highlight successful models that illustrate that various components of a justice system (e.g., codes, court rules, court procedures, legal assistance, corrections, probation, etc.) must be considered as a whole rather than as stand-alone services. The goal of this training is to bring together teams of  tribal justice stakeholders from various communities in order to examine and strategize on how criminal and civil legal assistance and access to these services can be provided and  improved through a collaborative, holistic approach. The training will also highlight the Tulalip Tribe’s justice system and the Salish and Kootenai’s Office of Public Defense, and key players from various components of the justice system will serve as panelists. Each jurisdictional team will ideally consist of a tribal judge, prosecutor, tribal attorney general, public defender/legal aid advocate, probation officer, and/or a tribal leader working with the same tribe. Individuals without a jurisdictional team are also encouraged to attend.

The training is free, but invitees must cover the cost of their travel, food, and lodging.  Please contact Nikki Borchardt Campbell if you would like to register, nikki@naicja.org. NAICJA will continue registering attendees on a first come, first serve basis until all the remaining space is filled. Hotel accommodations are available at the Tulalip Resort and Casino for $139 per night, plus tax. Call 1-866-716-7162 for reservations. Participants must identify themselves with being with the National American Indian Court Judges Association.

Tenth Circuit Briefs in Becker v. Ute Indian Tribe — Former Employee Contract Claims

Here:

Becker Opening Brief

Ute Brief

Becker Reply Brief

Lower court materials here.

Proposed Part 83 Changes to Federal Acknowledgment Process

Proposed Rule here:

2014-05-22 Proposed Rule 25 CFR 83

Related materials:

Comparison Chart 05-22-14

Frequently Asked Questions on Proposed 25 CFR 83

Summary of Comments and Responses on Part 83 Discussion Draft

Press release here:

Interior Proposes Reform of Federal Acknowledgment Regulations

Proposed rule would address “broken” process

Washington, D.C. — Secretary of the Interior Sally Jewell and Assistant Secretary-Indian Affairs Kevin K. Washburn today announced publication of proposed regulations that would reform the 35-year old process by which the Department of the Interior officially recognizes Indian tribes. Federal acknowledgment establishes the U.S. Government as the trustee for Tribal lands and resources and makes Tribal members and governments eligible for federal budget assistance and program services.

“President Obama believes that reforming the federal acknowledgment process will strengthen our important trust relationship with Indian tribes. Acknowledgment by the Department of the Interior confirms the existence of a nation-to-nation relationship between an Indian Tribe and the United States,” said Secretary Jewell. “Through this Administration’s outreach initiatives, tribal leaders have told us that the current process can be inconsistent, cost millions of dollars and take decades to complete. Our proposed rule maintains the rigorous integrity needed, but allows that process to be conducted in a timely, efficient and transparent manner.”

The existing regulations, known as “the Part 83 process”, were originally adopted in 1978 and were updated only once 20 years ago. Prior to that, Interior had addressed requests for Tribal acknowledgment on a case-by-case basis. While the 1978 regulations established a structured process for federal acknowledgment, these regulations have been widely criticized as being too time-consuming, sometimes arbitrary and generally “broken.”

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