Tribal sovereignty at issue in US Supreme Court case out of Michigan

Dec 2, 2013

The United States Supreme Court will hear today in a fight over a tribal casino in a small, northern

US Supreme Court building
US Supreme Court building
Credit Wikimedia

Michigan town. But there’s more than a casino at stake. The case revolves around the sovereign right of tribal governments to be immune from lawsuits.

The Bay Mills tribe wants to open a casino more than 100 miles from its reservation in Chippewa County in the eastern Upper Peninsula. The state of Michigan says it can’t, and sued in federal court to stop it.

“The big picture thing is the state wants to stop illegal gaming,” says Michigan Solicitor General John Bursch, who will argue the state’s side of case. "The Bay Mills tribe has set up a new casino in Vanderbilt, off of its reservation, and, under federal law, we don’t think this qualifies as Indian lands.”

Much more at stake than one casino

Bursch says the tribe is testing the legal waters. If the Vanderbilt casino is upheld, the Bay Mills tribe could open casinos on property it owns in Port Huron and Flint Township. Those are more lucrative markets than the eastern UP.

But the Supreme Court case is not specifically about the casino. It’s about whether the state can go to federal court to block a casino that’s on land that’s owned by a tribe, but not on a government-recognized reservation.

The Bay Mills tribe, through its spokeswoman, would not agree to an interview for this story. But in its legal filings, the tribe says it has immunity from the lawsuit because of the way the federal Indian gaming law is written.

“What they’ve done is claim the state of Michigan has no authority to sue them – nobody can sue them and shut down their casino operations,” says Matthew Fletcher, director of the Indigenous Law Center at the Michigan State University School of Law.

The tribe is arguing that Congress never made specific provisions for states to sue Indian tribes in cases like this.

"If France came over and they opened an illegal casino in Lansing, Michigan, there's no question that we could go to court to stop that."

The state’s response was to challenge some long-held legal assumptions about the immunity of tribal governments from lawsuits. And that’s the critical issue in this case.

John Bursch says if an activity takes place off a reservation, the tribe should not have immunity.

“If France came over and they opened an illegal casino in Lansing, Michigan, there’s no question that we could go to court to stop that,” he says. “So it’s going to result in treating tribal businesses, potentially, the same way that we would treat businesses by another state or a foreign country.”

But a lot of tribes say Michigan is reaching too far.

“Tribes around the country are concerned that the state of Michigan appears to have launched a full-on frontal attack on the notion of tribal sovereign immunity, or tribal immunity,” says John Wernet, the legal counsel for the Sault Sainte Marie Tribe of Chippewa Indians.

Court's decision could have far-reaching consequences

The Sault tribe operates five casinos in northern Michigan and would like to open a sixth in Lansing. The Supreme Court’s decision in this case could affect those plans. But Wernet says the implications reach further than just casino gaming.

“The sovereign immunity of the tribe is as important to the tribe as the state’s sovereign immunity is to the state,” he says. “Like the states, the tribes are governments with responsibilities to their citizens.” 

Indian tribes operate lots of businesses off their reservations. In large part that’s because their power to tax is very limited, and there are few assets to tax on a reservation anyway. So casinos and other businesses are how tribes generate revenue to provide police, fire, schools, and other services. In some cases, the revenue is also income for tribal members. 

And many of those business arrangements rely on the tribes negotiating deals that guarantee some degree of immunity from legal judgments, says MSU law professor Matthew Fletcher.

“The tribes have children’s trust funds, they have land trust funds, they have elder trust funds, they have governmental trust funds, all protected by sovereign immunity, and the Bay Mills case could potentially open those up.”

But John Bursch, the solicitor general, says if Bay Mills wins, the state could be left with some harsh and difficult choices. 

“Michigan has another option,” he says. “We can send in the State Police and start arresting people. But that’s something we’re trying to avoid at all costs.”

Seventeen other states have filed briefs supporting Michigan’s position. Sixty five tribes and the National Congress of American Indians are asking the Supreme Court to reject the state’s arguments in the case.