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

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!”

Tribal Supreme Court Project Ten Year Report — And Quick Commentary

Here:

TSCT 10 Year Report – FINAL March 2012

This is an important report for tribal leaders and advocates to read. From the introduction:

Now in existence for ten years, the Tribal Supreme Court Project can look back to review the degree to which its work has been effective. From OT01 through OT10, several developments are notable. First and foremost is the win-loss record for Indian tribes before the Court. Figure 1 of the Report is a table of the Indian Law Cases Where Certiorari Was Granted. Overall, the win-loss percentage has remained the same with the Tribes winning only about 25% of their cases. However, under the Rehnquist Court (OT01-OT04), Indian tribes increased their winning percentage to greater than 50%—winning 4, losing 3, and 2 draws in 9 Indian law cases heard on the merits. This winning percentage was a vast improvement from a deplorable winning percentage of 20% in the past. The work of the Tribal Supreme Court Project appeared to be paying major dividends. But in the past six terms of the Roberts Court (OT05-OT10), Indian tribes have witnessed their winning percentage plummet to 0%—losing all 7 cases argued on the merits.

A few comments:

  • The Supreme Court outcomes aren’t the whole story. The TSCP has been very successful in two areas — organizing amicus brief strategy and getting cert denied in several cases — although the Project is just one player in the process (the OSG, the tribal parties, and others are often as or more important). Last Term’s dismissal of the Madison County petition was a major success.
  • Bringing in members of the Supreme Court “Bar” has been critical in limiting the damage to tribal interests. David Fredericks’ work, for example, in Plains Commerce Bank may have changed that case from a potential disaster for tribal jurisdiction purposes to a 5-4 heartbreaker (or, a case that really didn’t decide anything). Names matter to the Supreme Court (well, as does quality of advocacy, too, to be sure). Of course, there’s an arms race and tribal interests are now facing the Ted Olsons and Paul Clements of the world, so in some ways its a wash. In fact, this may be a reason why there have been no additions to the First Thirteen American Indians to argue before the Supreme Court since 2001.
  • The requirements for success in the Supreme Court for tribal interests remain (as they probably always have): (1) the federal government’s participation as a party or an amicus in support of tribal interests and (2) treaty or statutory interpretation cases. The Rehnquist/Roberts Courts are clearly not common law courts, unlike the Warren/Burger Courts, and that heavily disfavors federal Indian common law claims. And more and more, as the federal government’s conflicts within the trust responsibility become almost too large to handle, the effectiveness of the federal government’s support in Supreme Court advocacy as an amicus is waning considerably.
  • Our late, departed friend David Getches was the great scholar on Supreme Court jurisprudence, but he also said (as did Rennard Strickland) that the future of Indian law is in tribal law and in tribal bureaucratic and administrative advocacy. In many ways,  Supreme Court litigation is the reality TV of American Indian law, surreal and wholly unrepresentative of what tribes are doing now.