Sault Tribe Motion to Dismiss Michigan Gaming Suit

Here are the new materials in the case captioned State of Michigan v. Payment (W.D. Mich.):

2015-03-20 Brief in Support of Defendant’s Motion to Dismiss Amended Complaint

2015-03-20 Defendant’s Motion to Dismiss Amended Complaint

71 Michigan Response to Motion to Dismiss

72 Sault Tribe Reply

The state’s amended complaint is here.

State of Michigan Sues Sault Tribe Officials–Amended Complaint with Exhibits

Amended Complaint

2Exhibit A (Letter from DOI)

Exhibit B (letter from Gov. Snyder to Chairman Eitrem)

Exhibit C (Sault Tribe Submission for Mandatory Fee-to-Trust Acquisition)

Exhibit D (Same, for the Sibley Parcel)

Exhibit E (Sault Tribe approval of development agreement with Lansing, MI)

Exhibit F (Comprehensive Development Agreement between Sault Tribe and Lansing)

Previous coverage of the Lansing casino case here.

Updated Materials in Michigan v. Sault Tribe — State Seeks to Sue Tribal Officials

Here are the materials in State of Michigan v. Sault Ste. Marie Tribe of Chippewa Indians (W.D. Mich.):

49 Renewed Motion to Dismiss

53-1 State Motion for Relief

55 State Response to Motion to Dismiss

57 Soo Tribe Reply

58 Soo Tribe Response to Motion for Relief

60 State Reply

63 DCT Order to Adjourn and Reschedule Oral Argument

Sixth Circuit materials are here.


Michigan’s Response to Sault Tribe Renewed Motion to Dismiss

Here are updated materials in State of Michigan v. Sault Ste. Marie Tribe of Chippewa Indians (W.D. Mich.):

53-1 Michigan Motion to Revise DCT Order Dismissing Tribal Officials

55 Michigan Response to Motion to Dismiss

Sault Tribe’s motion is here.

Sault Tribe Renews Motion to Dismiss Michigan’s Lansing Casino Suit in Federal District Court


49 Renewed Motion to Dismiss

This, in light of the State’s withdraw of its cert petition.

Sault Ste. Marie Tribe Cert Opposition Brief


SSM Cert Opp Brief

Filed right before the decision in Michigan v. Bay Mills came out, so it doesn’t take that case’s outcome into consideration.


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.