Keeping a Close Eye on Michigan v. Bay Mills Indian Community (Jefferson Keel and John Echohawk):

Since it was established in 2001, the National Congress of American Indians and the Native American Rights Fund have jointly coordinated the work of the Tribal Supreme Court Project.  The Project was established by tribal leaders in response to a series of devastating losses for Indian tribes before the Supreme Court of the United States.  As you may recall, tribes were losing 3 out of every 4 Indian law cases argued before the Court and resulted in decisions significantly eroding the doctrine of inherent tribal sovereignty.  Our work has focused on coordinating tribal resources throughout Indian country and bringing the best legal minds to the table to develop litigation strategies to put forward the strongest legal arguments when litigation could not be avoided.  But our message to tribes became and remains:  “Stay away from the Supreme Court!”

During its early years, the Project experienced relative success with tribes increasing their winning percentage to greater than 50%—winning 4, losing 3, and 2 draws in the 9 Indian law cases heard by the Rehnquist Court.  But since 2005, with the installment of John Roberts as Chief Justice, the retirement of Justices O’Connor, Souter and Stevens, the tribes winning percentage has plummeted to 10%—with 1 win and 9 losses in the 10 Indian law cases heard by the Roberts Court.  And neither Chief Justice Roberts nor Justice Alito has voted in favor of tribal interests in a single case!

With this background, we recently read the State of Michigan’s opening brief in Michigan v. Bay Mills Indian Community–a case granted review by the Court even though the United States had filed a brief recommending that cert be denied.  Although this litigation should be about the merits of Bay Mills’ claims under the Michigan Indian Land Claims Settlement Act to conduct gaming on lands acquired with settlement funds—it is not.   In its current posture before the Court, the State of Michigan is using this case to mount a full frontal attack on tribal sovereign immunity and the authority of states to regulate “gaming activity” under the Indian Gaming Regulatory Act (IGRA).

First, Michigan asks the Court to examine “IGRA as a whole” to find Congressional intent to  waive of tribal sovereign immunity or, in the alternative, to overrule Santa Clara Pueblo and apply a “less strict standard” when considering whether legislation such as IGRA abrogates tribal sovereign immunity.  Second, if the statutory arguments are not successful, Michigan asks the Court to recognize that tribal sovereign immunity “is a federal common law doctrine” created by this Court and subject to adjustment by this Court.  Thus, according to Michigan, the Court should narrowly read Kiowa as a “contract-based ruling” and (at the extreme) hold that a tribe’s immunity is limited to its on-reservation governmental functions.

With the doctrine of tribal sovereign immunity and the authority of states under IGRA on the table, this case has become high-stakes litigation for Indian tribes across the country.  Although Bay Mills and other tribes have solid legal arguments to make to the Court, the optics and politics of this case do not bode well for a good outcome.  The last time the doctrine of tribal sovereign immunity was before the Court was in Madison County v. Oneida Indian Nation of New York back in 2010.  Madison County, the State of New York and other local governments had filed briefs taking aggressive approaches similar to the State of Michigan. Their positions were supported by a number of other states, local governments and non-Indian property rights organizations as amicus parties.  In response to similar concerns expressed here, the Oneida Indian Nation passed a resolution which irrevocably waived its sovereign immunity and resulted in the Court vacating and remanding the case to the lower courts for further proceedings on the merits.  Although that result may be difficult to replicate, our hope is that the on-going efforts by the Bay Mills Indian Community to find an alternative resolution to this case, or at least change the posture of this case before the Court, will bear fruit.

To repeat our message to all tribes:  “Stay away from the Supreme Court!”