Here. Second story in the newscast.
National Native News Podcast; Includes Segment on Bay Mills
Here. Second story in the newscast.
Michigan v. Bay Mills Indian Community
Amy Howe at SCOTUSBlog on Bay Mills
Here, “Opinion details: Victory for Native American tribes . . . for now?”
An excerpt:
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.
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
No Bay Mills This Week
The next SCOTUS opinion release day is the 27th.
IPR: Fletcher Waits for Bay Mills
Here.
Nothing that you didn’t already know from Kate’s post Tuesday.
An excerpt:
He says the result could be that tribes think twice about investing money off the reservation.
“You can’t put it in your mattress,” he says. “But perhaps into overseas banks or something to that effect.”
Fletcher says it’s just one possible outcome. The court could also write a more limited decision. Fletcher says the least-likely outcome would be for the court to rule in favor of the Bay Mills Indian Community, which argues it is immune from lawsuit in this instance.
Ugh! No Bay Mills Decision Again This Week
No news again. Not sure what that means, but likely it means the Court is fractured. But then again, they usually are so that conclusion isn’t helpful.
SCOTUSblog data tells us that Justices Ginsburg and Kagan have not yet written for the December sitting, which is when the Court heard the Bay Mills argument. Usually, to balance workload, each Justice is assigned one opinion per sitting. But the Court heard 11 arguments in December, so at least two Justices will have two assignments. Justice Scalia, we know after today, has written twice for December, so we can say with some limited certainty that he will not be the author of the majority opinion in Bay Mills. In other words, it could be anyone.
I’m hoping for Justice Kagan (see my commentary on the argument). Her questions at oral argument suggested a narrow, statute-based view of the matter, though I am doubtful she would find in favor of the tribe. Justice Ginsburg dissented in Kiowa, and her opinion would likely go against the tribe in this one, too. The question there is how far she would go.
But it’s very possible neither Kagan nor Ginsburg write, which means that anyone could.
Student Commentary on Michigan v. Bay Mills Indian Community
Here, in the Duke Journal of Constitutional Law & Public Policy Sidebar. Titled A Tradition of Sovereignty: Examining Tribal Sovereign Immunity in Bay Mills Indian Community v. Michigan, written by Meredith L. Jewitt.
Fletcher: “Bullshit and the Tribal Client”
I’ll be presenting aspects of a draft paper, “Bullshit and the Tribal Client,” at Federal Indian Bar next week. Here is the abstract:
While it is well established that lawyers may not lie to their clients, it is not well established whether counsel can bullshit their potential and active clients. I do not mean bullshit as a term of abuse, but rather as philosopher Harry Frankfurt meant it. Frankfurt identified politicians and public relations professionals as examples of modern day bullshitters. Politicians and PR professionals care only about reaching their goals, and while that may include telling lies, it definitely includes making statements that no one can possibly know is true or not. All that matters is the outcome. Lawyers are bullshitters, too. And lawyers utilize bullshit for the same reason politicians do – to persuade someone to select them. Politicians want a vote; lawyers want a client. In American Indian law and policy, lawyers are not the only bullshitters – elected tribal officials are politicians, too, and many of them are bullshitters as well.
While there is a lot of bullshit going around, I am mostly (but not entirely) concerned about bullshit from outside counsel, often specialized counsel, directed at tribal clients. This paper is intended to identify areas where counsel employs bullshit when dealing with tribal clients. By counsel I mean both outside counsel and in-house counsel, and by clients I include both in-house counsel and tribal leadership. The relationship between in-house counsel and most, if not quite all, tribal government clients renders tribal clients uniquely vulnerable to bullshit by outside counsel. I offer suggestions, mostly for the benefit of in-house counsel, on how to deal with bullshit from both outside counsel and tribal officials. However, I will be the first to acknowledge that in-house may be placed in a no-win scenario, especially once appellate specialists take control of a case involving tribal interests.
Substantive comments welcome.
On another note, I recommend learning more about and perhaps joining the Tribal In-House Counsel Association.
UCLA American Indian Studies Conference — March 7, 2014
Here. Fletcher et al. papers to be discussed (“Tribal Disruption and Indian Claims“; “(Re)Solving the Tribal No-Forum Conundrum: Michigan v. Bay Mills Indian Community“; and “Tribal Disruption and Labor Relations“), and panel:
Plenary 1: Innovations in Law
- Kristen A. Carpenter, Associate Professor of Law, Co-Director of American Indian Law Program, University of Colorado, Boulder
- Carole E. Goldberg, Vice Chancellor, UCLA Academic Personnel, and Jonathan D. Varat Distinguished Professor of Law, UCLA School of Law
- Matthew L.M. Fletcher, Professor of Law, Director of the Indigenous Law & Policy Center, Michigan State University
- Moderator: Angela R. Riley, Professor, UCLA School of Law, and Director, UCLA American Indian Studies Center
Turtle Talk 
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