My read of the transcript is below. Same disclaimers as always — I wasn’t there; cold transcripts are treacherous; and, especially, none of this means anything if it isn’t in the majority opinion.

State’s Main Argument

As has become the norm in Indian law arguments, Justice Sotomayor opened with an initial flurry of questions to State’s counsel, a discussion that went on for some time (page 3 line 25 through page 6 line 20). She wondered why the State was the petitioner here when the district court expressly did not include the State in the denial for an injunction against the Vanderbilt casino (it was a motion by the Little Traverse Bay Bands of Odawa Indians instead), a point made by the National Congress of American Indians. The State’s response was fairly weak — the parties (and it turns out, perhaps, the CA6) merely “assum[ed]” the State and LTBB’s claims were consolidated. Moreover, Justice Sotomayor’s questions delayed the State’s wish to proceed directly to a discussion of tribal immunity by several minutes.

Justice Ginsburg further delayed the State (page 5 line 5 through page 8 line 18) by wanting to know why the State did not choose to invoke the dispute resolution mechanism in the 1993 gaming compact with Bay Mills, especially as Justice Kagan later noted the Court had previously held in C&L Enterprises that an arbitration provision can effectuate a waiver of tribal immunity. From page 8 line 19 to page 9 line 7, the Chief Justice wanted to know why the State raised its own immunity when BMIC sued for a declaratory judgment on the merits of the Vanderbilt casino theory. The State’s blithe(?) response was “all roads lead to tribal immunity.”

Justice Sotomayor finally got the argument into important ground by asking about Ex parte Young, which prompted the State to explain why federalism principles justified the procedural posture of this case (page 9 line 8 through page 12 line 15). First, this initial colloquy:

JUSTICE SOTOMAYOR: All roads lead to one issue, I think. If you had gotten a declaratory judgment, they would have had to stop their gaming activity.

MR. BURSCH: No.

JUSTICE SOTOMAYOR: But you wouldn’t have gotten their property; isn’t that what this suit is about, you trying to take over the –the casino?

MR. BURSCH: No, we don’t want to take over the casino. We want to stop illegal gaming on lands subject to Michigan’s exclusive jurisdiction.

JUSTICE SOTOMAYOR: So why not Ex Parte Young?

The State’s answer is quite silly — and what is getting picked up in the newspapers and perhaps some Justices gaoing all the way back to Kiowa itself — if France or Haiti opened a casino in Michigan then the State would be able to sue those foreign nations to get relief, but for some unexplained reason not Indian tribes (page 10 line 17 through page 17 line 21). I don’t believe the State ever explained why Ex parte Young is insufficient to shut down off-reservation gaming under the tribe’s MILSCA theory. The State wants to win by limiting or modifying Kiowa Tribe, rather than win with Ex parte Young (page 17 lines 15-23):

JUSTICE GINSBURG: But once the Congress didn’t respond, the majority opinion in Kiowa –I don’t know whether it’s “Kiowas” or “Kiowa” –said, you know, this is an unfortunate result, but Congress can do something about it. Well, now Congress hasn’t done anything about it, and you are asking this Court essentially to modify the –that precedent.

MR. BURSCH: I am. I mean, I don’t think you need to modify it.

Justice Alito kicked off another almost morbid series of colloquies that bled into the Tribe’s argument time about whether the State could arrest tribal officials, employees, and casino patrons, and prosecute them on page 18 line 9.

A largely irrelevant point to this case, but perhaps more important to the six tribes (including BMIC) now negotiating with the State over class III gaming, the State made a concession:

JUSTICE ALITO: It seems to me if a tribe wants to open a casino and the State has to –it has to have a compact with the State. Isn’t all the bargaining power on the –on the side of the State? So the State says, fine, if you want to do that, you have to waive sovereign immunity.

MR. BURSCH: Well, we had a compact in place in 1993 that limited their casinos so that this wouldn’t happen.

JUSTICE ALITO: Well, I –but I mean, when will –when will this compact expire?

MR. BURSCH: Right. Let me give you a very practical answer to that question. This compact in 1993 had a 20-year term on it. And so it essentially expired at the end of –of November, just a few days ago, although it has an evergreen clause that allows it to continue while the parties try to negotiate a new compact. And As you would imagine, the very first thing Michigan asked for in its proposed amended compact was to waive tribal sovereign immunity to deal with issues like this. And, unsurprisingly, the tribe said: We’re really not interested in that; we kind of like the way the sovereignty issue is preserved in  the existing compact.

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JUSTICE ALITO: So the compact has expired and there’s –so then how can they operate the casino?

MR. BURSCH: Well, it hasn’t expired. Until the parties –

JUSTICE ALITO: Until they reach a new compact, it continues.

MR. BURSCH: Until they reach a new compact, it continues in effect.

Near the end of the State’s time, Justice Sotomayor redirected the argument at least obliquely to an important issue raised by the National Congress of American Indians — why is the NIGC is sitting this one out? (page 22 line 20 to page 24 line 16). Specifically:

JUSTICE SOTOMAYOR: All right. The issue of what constitutes Indian lands is between the Federal government and the Indians pursuant to the land trust settlement, correct?

MR. BURSCH: I disagree with that because –

JUSTICE SOTOMAYOR: Well, I know you do and I know why you do. But –but what defines the lands is the settlement trust, correct?

MR. BURSCH: Federal court interpretation of the Michigan Indian Land Claims Settlement Act, yes, would determine the status of these lands. The reason why it’s not just between the tribe and the Federal government is because Michigan has a huge interest in having lands that aren’t currently under its exclusive sovereign jurisdiction be determined to be  Indian lands –

One wishes Justice Sotomayor had been more direct in her questioning on this point, but the point was made.

Tribe’s Argument Continue reading →