Three opinions came down today, none of which were the Bay Mills decision. We did get Justice Ginsberg’s opinion (EPA v. EME Homer City) from the December sitting, however. The other two opinions were from the February sitting and both authored by Justice Sotomayor. The previous discussion about what this may or may not mean is here.
There are no more opinion release days scheduled for this week.
Here is the petition:
Better pdf here: Michigan v Bay Mills Cert Petition
1. Whether a federal court has jurisdiction to enjoin activity that violates IGRA but takes place outside of Indian lands.
2. Whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside Indian lands.
Sixth Circuit materials here.
My earlier views on why this petition isn’t going anywhere are here. I would add now that since Bay Mills, as I understand it, hasn’t re-opened the casino, and since the State filed an amended complaint way back when, there doesn’t seem to be much pressure to grant this particular petition. Also, if this is really an IGRA fight over an allegedly illegal casino, it’s really the federal government’s fight. In fact, NIGC already referred the matter to the federal prosecutors … a while back. Michigan is trumping up an alleged compact violation that might not even exist. There might be a compact violation, or not, but the State in its petition doesn’t even point to which provision in the compact BMIC is violating (maybe they did, but I didn’t see it).
Bay Mills has a reservation located on tribal land in the Upper Peninsula’s Chippewa County on the eastern end of Lake Superior.
In 2010, the tribe used earnings from a land settlement trust to purchase 40 acres of land in Vanderbilt, a tiny town just north of Gaylord that’s located more than 100 miles south of the tribe’s main reservation.
The Michigan Indian Land Claims Settlement Act says that land acquired with funds from a land trust “shall be held as Indian lands are held.” So Bay Mills used that language as legal authority to open a small casino in November 2010 in Vanderbilt. Continue reading
Well, maybe, but it probably doesn’t matter because of State of Michigan’s amended complaint below.
Yesterday the Sixth Circuit held the Indian tribal immunity survives the enactment of the Indian Gaming Regulatory Act for cases in which a non-federal party with standing sues the tribe for alleged violations of the Act. The court criticized the Tenth Circuit’s holding Mescalero Apache Tribe v. New Mexico (PDF) that IGRA does waive tribal immunity:
Mescalero offers virtually no analysis in support of its contrary reading of § 2710(d)(7)(A)(ii)—a point which the State, to its credit, concedes here; and to the extent the opinion does offer any analysis, it mistakenly cites waiver cases rather than abrogation ones. We agree with the Eleventh Circuit, therefore, that Mescalero’s reasoning is “muddled” rather than persuasive.
The CA6 cited the CA11, also critical of the Tenth Circuit’s holding. In Florida v. Seminole Tribe (PDF), the court also criticized the Mescalero holding:
As an initial matter, we find that Mescalero provides no support for the State’s argument. The Mescalero panel, in discussing section 2710(d)(7)(A)(ii), claimed that a majority of courts agree that “IGRA [abrogated] tribal sovereign immunity in the narrow category of cases where compliance with IGRA’s provisions is at issue and where only declaratory or injunctive relief is sought.” 131 F.3d at 1385. In actuality, however, the cases that the panel cited in support of its claim addressed an entirely different matter, to wit: whether a tribe voluntarily waives its own sovereign immunity by engaging in gaming under IGRA. See infra part II.A.2 (discussing tribal waiver of immunity). In light of this absence of supporting authority, we find the Mescalero panel’s claim difficult to credit.
So one circuit has held that IGRA waives tribal immunity, and two circuits expressly disagree with the first circuit. Circuit split, right? Get ready for Michigan v. Bay Mills Indian Community in the Supreme Court?
Well, probably not. If the Tenth Circuit’s decision is so patently wrong (and mind you, it didn’t have the benefit of any other cases upon which to rely), it probably doesn’t matter. If confronted with the same question again, one could predict the Tenth Circuit going the other way. This is why the Supreme Court doesn’t take questions of first impression very often. They like to let things percolate in the lower courts. Whether IGRA waives tribal immunity is still percolating. The Tenth Circuit is looking like an obvious outlier decision that won’t be repeated. I’d guess, if anyone made the effort, that a Supreme Court cert petition would be denied.
A written statement from Bay Mills Chair Kurt Perron says the tribe ultimately plans legal victory, and to move forward with its “planned developments.” The tribe did not immediate elaborate on the statement’s meaning.
If Bay Mills is ultimately victorious, the tribe would likely be allowed to build casinos anywhere it wants, without state approval, as long as it buys the land with a specific pool of funds.
“Probably the biggest implication (of today’s ruling) in the long run is just to highlight exactly how difficult it is to shut down a casino opened by an Indian tribe under these circumstances,” says Matthew Fletcher, of MSU’s Indigenous Law Center.
The Vanderbilt Casino is widely regarded as a test site for its Upper Peninsula owner. The tribe has expressed interest in building in Port Huron, and perhaps elsewhere.
It’s not clear what implications this case might have for another Upper Peninsula tribe’s plans to build a casino in downtown Lansing.
Here are those materials:
Here is the State’s amended complaint.