Wednesday, May 28, 2014

Supreme Court Upholds Tribal Sovereign Immunity in Michigan v. Bay Mills

Yesterday in a stunning victory for Indian tribes, the Supreme Court of the United States issued its opinion in Michigan v. Bay Mills Indian Community, reaffirming the doctrine of tribal sovereign immunity.  In a 5-to-4 decision, Justice Kagan, joined by Chief Justice Roberts, Justices Kennedy, Breyer and Sotomayor, upheld the lower court’s decision that that Indian tribal governments possess sovereign immunity against lawsuits, including lawsuits brought by state governments, and reaffirmed the principle that it is for Congress, not the Court, to determine the circumstances where Indian tribes should be subject to suit.  In an unexpected development, Chief Justice Roberts provided the crucial fifth vote to secure this legal victory, having not voted in favor of tribal interests in a single case since he joined the Court in 2005.

The lawsuit had its origin in a dispute between the State of Michigan and the Bay Mills Indian Community over whether a particular location constituted Indian lands eligible for gaming under the Indian Gaming Regulatory Act, but then turned into a much larger legal battle over the rights of all Indian tribes across the country.

“This is a good day for tribal governments,” said NCAI President Brian Cladoosby and Chairman of the Swinomish Tribe.  “Congratulations to the Bay Mills Indian Community!  We always thought this case was an overreach by the State of Michigan.  Tribal and state governments work together and find common ground all the time.  All governments are working to create jobs, educate our children, provide public safety and protect our environment.  We find agreement on thousands of issues, but every now and then we disagree.  When that happens, we have to negotiate solutions on a government-to-government basis.  That takes leadership, and we can’t take each other to court.  The Supreme Court agrees.”

Upon learning of the decision and the fact that Chief Justice Roberts voted in favor of tribal interests, NARF’s Executive Director John Echohawk’s initial response was a simple “WOW!”  After a sigh of relief, he stated:  “I am pleased that the Court today stood upon the foundational principles of Indian law that we are all familiar with, instead of changing the rules on us all the time.  The victory in this case is attributed to the hard work and dedication of the tribal leaders and attorneys for Bay Mills, as well as the on-going efforts of the Tribal Supreme Court Project.”

In parts of the opinion aside from the main holding, the Supreme Court found that the states can use other remedies to address issues off-reservation, including negotiations, permit enforcement, and lawsuits against tribal officials in their individual capacities.  A dissent written by Justice Thomas strongly disagreed with the holding, stating that sovereign immunity is a judicially created doctrine and could be modified by the Supreme Court.  However the majority emphasized that tribal sovereignty is an inherent right of Indian tribes recognized in a string of Supreme Court decisions from the founding of the United States.

NCAI and NARF filed an amicus brief before the argument, and would like to thank all of the tribal leaders and attorneys who participated in the efforts on this case.