The opening brief in Michigan v. Bay Mills Indian Community (No. 12-515) is due August 30 (that’s today!!!), and the case may shape up to be a blockbuster for Indian country. This is the Turtle Talk political science preview — forget the law, what are the politics? 🙂

The questions presented involve federal court jurisdiction over state suits alleging violations of the Indian Gaming Regulatory Act and, if there is federal court jurisdiction, whether IGRA abrogates tribal immunity.

To be frank, the case looks like a difficult case for the Bay Mills Indian Community to win, like most cases that reach the Supreme Court. Many of the facts do not favor the tribe. Most notably, the tribe opened a casino on fee lands located about 100 miles away from their reservation on the doorstep of the Little Traverse Bay Bands of Odawa Indians. And, as the SCT said in City of Sherrill, a process exists for tribes to utilize when it wants to assert sovereign rights on fee lands — 25 U.S.C. § 465. It’s too late for that now, but that’s the usual process. What Bay Mills is doing probably appears to be another end-around play to the Supreme Court.

The law doesn’t appear to favor the tribe, either. The Department of Interior opined that the casino was illegal, rejecting the tribe’s theory that the land, which the tribe states it purchased with Michigan Indian Land Claim Settlement Act funds, was casino-eligible. The National Indian Gaming Commission concurred, but gave the tribe an opening by denying that it had jurisdiction to shut down the casino because it is not located on Indian lands.

The State of Michigan, and initially the Little Traverse Bay Bands, sued under the theory that the casino violated IGRA. This gave the tribe yet more room, it turns out, because, as the Sixth Circuit held, if the casino isn’t located on Indian lands, then IGRA doesn’t apply, and doesn’t give federal courts jurisdiction to review the legality of the casino. The Sixth Circuit also held that the tribe is immune from the State’s suit. It is my understanding that LTBB has since dropped out of the litigation.

Given the posture of the State’s questions presented, there are numerous potential outcomes, most of them bad for the tribe, and a few of them quite possibly catastrophic for Indian country.

Outcome #1 — The Supreme Court affirms the Sixth Circuit, holding that IGRA does not authorize the State’s suit, and does not reach the immunity question.

This is the best possible outcome for the tribe and for Indian country. However, the Supreme Court reverses in 70 percent of its cases generally, and tribal interests are 1-for-10 in the Roberts Court. Still, tribal interests’ best chances for winning in the Roberts Court is in statutory interpretation cases. The major problem for the tribe here is the fact that the Supreme Court might do anything it can to avoid a result like the one the Sixth Circuit reached, which created what looks like a jurisdictional loophole for the tribe to game in a gray area where no one can touch them, a result the Court could see as absurd.

Ironically, the biggest beneficiary to this outcome is likely to be the Bay Mills’ closest competitor, the Sault Ste. Marie Tribe, who has a pending CA6 case on similar questions and a Lansing casino proposal on the table.

Outcome #2 — The Supreme Court reverses the CA6 on the jurisdiction question but affirms on the tribal immunity question.

This is another good outcome for the tribe and especially for Indian country. But even the majority in Kiowa Tribe called upon Congress to correct the rule of tribal immunity, which Justice Stevens called “strikingly anomalous.”

There is some hope here; namely, that the State amended its federal court complaint to add individual tribal officers. The SCT could recognize federal court jurisdiction and remand for what could be a suit on the merits of Bay Mills’ Vanderbilt casino. This would be an outcome analogous to the Court’s decision in Citizen Potawatomi way back in 1991.

But so much turnover on the SCT since Kiowa and Potawatomi. Only Justices Kennedy and Scalia remain from the Potawatomi decision, and only Kennedy, Scalia, and Ginsburg remain from the Kiowa majority (Thomas and Breyer dissented in Kiowa). It’s a whole new ball game.

Outcome #3 — The Supreme Court reverses on both questions and holds that IGRA abrogates the tribe’s immunity.

This would be a pretty bad outcome for the Bay Mills Indian Community, and a loss for Indian country, but a loss less devastating than number 4 below. Here, the Court’s decision can be limited to the unusual facts of the matter — Bay Mills going off-reservation to open up a casino on fee land. Even then, the tribe could still win on its MILCSA theory. But the Court has a bad habit of speaking way beyond the facts of its cases and who knows what the dicta is going to say here?

The Supreme Court’s immunity decisions support the notion that tribal immunity should be strongest in cases closer to the internal relations of tribal governance than to off-reservation, commercial conduct. The origins of tribal immunity, and the most robust modern immunity decisions, involve internal tribal governance. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (tribal membership); Parks v. Ross, 52 U.S. 362 (1850) (damages claim against Cherokee Principal Chief arising from Cherokee Removal). The hardest cases involve tribal commercial activities and off-reservation activities. C&L Enterprises Co., Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001) (finding waiver in construction contract for commercial building); Kiowa Tribe, 523 U.S. 751 (affirming immunity in off-reservation commercial contract breach claim). The Bay Mills immunity defense arises from an off-reservation, commercial activity, rendering the claim weaker than a purely internal governance case.

Outcome #4 — The Supreme Court reverses on both questions and holds that it will not longer recognize tribal sovereign immunity in any instance.

This is the potential catastrophe. Each and every time the Supreme Court hears a tribal sovereign immunity case, the possibility exists the Court will simply abrogate tribal immunity. One must not forget that tribal immunity is a creature of the federal courts, and is not expressly recognized by Congress, the United States Constitution, or Indian treaties. Nothing, but nothing, stops the Supreme Court from reversing itself on tribal immunity. Fifteen years has passed since the Supreme Court asked Congress to solve the tribal immunity issue, Congress has done nothing.

Of course, as Congress no doubt recognizes, tribal immunity protects tribal assets like children’s and elder’s trust funds, land trusts, tribal government core functions like housing, health care, education, fire and police, medical, and a plethora of other desperately needed government services. Without immunity, each and every time a tribe is sued, the entire future of the tribe is up for grabs. There absolutely will be a huge run on tribal coffers from plaintiffs’ attorneys around the country looking to tap into tribal assets. Think Saul Goodman on Walter White’s meth.

Moreover, signs point to the Supreme Court carefully scrutinizing tribal sovereign immunity very carefully in the last few years. Remember, the conservative Justices like Chief Justice Roberts are in this thing for the long haul, and they can wait for the right vehicle to come along as a means to reach fairly dramatic decisions. A case like this one — where a tribe hides behind immunity to engage in an activity that even its trustee, the Interior Dept., says is illegal — could be that vehicle.

Outcome #5 — The tribe waives its immunity, mooting the second question presented, and litigates on the jurisdictional question alone.

This is another negative outcome for the tribe but a gigantic win for Indian country much akin to the Oneida waiver of immunity in the Madison County taxation case a few years back. The real question is whether the waiver would be effective, or whether the Supreme Court would decide the immunity question anyway, aka number 6 below.

Outcome #6 — The tribe waives its immunity, but the Supreme Court decides the immunity question anyway.

In my view, which is as an outsider looking in, this is an unlikely outcome, given that the Court is not in the business of deciding cases not before them. The release of a criminal from prison moots direct and habeas appeals before the Court, so why not here? Well, the exception to mootness is when a type of case is prone to repetition but evades review. If every tribe reaching the Supreme Court in an immunity case waives its immunity, then the Court will never hear another immunity case. For tribal interests, that’s probably just fine. But it may antagonize the Court.

Even so, I would strongly recommend waiving immunity unless a tribe is before the Supreme Court on something directly implicating its internal governance. Assuming the Court is looking for a vehicle, waiving immunity now doesn’t hurt. Getting immunity off the table is such an enormous benefit to Bay Mills — it makes the case about statutory interpretation instead of a judge-made common law doctrine that nobody likes. Definitely worth a try.