In 2010, the Bay Mills Indian Community, a tribe in Michigan, opened a casino outside of its reservation in the small rural town of Vanderbilt. It did so without placing the land in question into trust by the federal government, a prerequisite to gaming. The state of Michigan sued the Bay Mills Indian Community, but the tribe held that the Michigan suit didn’t have merit because of its tribal sovereignty immunity. Tribes have immunity from lawsuits unless they otherwise consent. Michigan v. Bay Mills Indian Community eventually made its way to the Supreme Court, which—to the surprise of many observers—ruled in the tribe’s favor.
In its 5-4 decision, the high court essentially answered two big questions that both favored the Bay Mills Indian Community. It found that the federal statute known as the Indian Gaming Regulatory Act (IGRA) didn’t allow Michigan to file a lawsuit against the tribe in this case. Additionally, the Supreme Court refused to go back on its own precedent of sovereign immunity when off the reservation.
To help us make sense of what can easily be described as a victory for tribal sovereign immunity, I spoke with Matthew Fletcher, a law professor at Michigan State University’s College of Law.
This seems like a big change of course for the Supreme Court. Can you explain why this is such a big win for tribal sovereign immunity?
The Supreme Court has been incredibly hostile to tribal interests for the last 25 years. During oral arguments, it seemed almost a given that the court was going to rule against the tribe—the only question was how bad it was going to be. [Part of the reason] this is a win is that had the Supreme Court decided that tribes are not immune from suit when they go off reservation for whatever reason, it would have completely upended a huge swatch of federal Indian law. Tribes would have probably taken money out of bank accounts, off the reservation, and put it in the Cayman Islands—anything to get away from having their assets confiscated by states and federal courts. No doubt in my mind that [if the ruling had been different] tribes would be subject to all kinds of frivolous lawsuits. For those reasons, it’s the biggest win, probably, in the last 25 years for Indian tribes.
Is this Supreme Court ruling the last word on this case, or will we see more about this soon?
For the Bay Mills Indian tribe and the state of Michigan, the decision doesn’t end their dispute over this casino. They’ll still be litigating, probably for the next five years, over everything the Supreme Court left open. The state can still sue the tribe’s governmental officials and perhaps its employees—although that’s a grey area. The state has threatened to use criminal prosecution for anyone who engages in casino operations at the Vanderbilt location. It’s currently closed, but if it reopens the state says they might go in and arrest everyone.
Why did this get all the way to the Supreme Court?
I’m actually currently writing a law article about how the facts are so crazy in this case and the personalities are so outrageous that the court granted this case for those reasons. Nobody really knew what to do. Nobody has ever had the audacity to just buy a chunk of land anywhere in the state and open a casino on it. Nobody’s ever tried that. And for that reason, the state of Michigan and the United States, which also has a say in all of this, were calling each other trying to figure out who was going to bring suit, whether they were going to bring shotguns. Ultimately, Michigan decided it was going to sue the tribe itself thinking that IGRA waived immunity, but it didn’t. And [Michigan] had, for several years now, a lawsuit against tribal officials that has been stayed pending the outcome of the Supreme Court case. Why this case got to the Supreme Court is, I think, almost hilarious. It should never have gotten there. First of all, Michigan and the tribes have a long history of sitting down and negotiating before high stakes litigation gets very far. I think this decision has to do with stubbornness from both the attorney general’s office and state of Michigan, which is very conservative, and the Bay Mill tribal leadership, which is very sovereignty oriented. Neither side wanted to back down. What happened is worthy of a book, but it’s almost a joke. You can’t even make these facts up.
The Sault Ste. Marie Tribe of Chippewa Indians is also trying to open a casino off the reservation in Michigan. What does this ruling mean for that endeavor, and the court case that emerged from it?
The tribe wants to open a casino in Lansing, which would be a much more lucrative market than Vanderbilt. Frankly, Bay Mills was using its Vanderbilt casino as a test case to come further downstate for a better gaming market. The Sault Ste. Marie Tribe of Chippewa’s argument is similar to Bay Mills’ argument, but it’s made the decision to go through the process to put the land into trust. Michigan’s claim here is even more ridiculous—it was asking the court to stop the tribe from even asking the Department of Interior to take the land into trust. That was a strange argument so early in the process. So the Sault Ste. Marie Tribe of Chippewa will have to go back to the Department of Interior, and there will be much more litigation in that vein.
And what about other pending or potential lawsuits?
Other cases that are affected are actually raised and discussed in the majority and dissenting opinions in the Bay Mills case. There are pending cases or types of cases that the court is telling the Indian tribes to watch out for. Those cases involve people who go on the reservation and have a slip and fall through the negligence of the tribes. A lot of tribes—and it surprises me how many—refuse to entertain lawsuits in tribal, state or federal courts for their tort victims. I think that’s a huge mistake. And the Supreme Court basically said that if the tribes don’t provide an adequate venue for people who come on the reservation and have an accident based on the tribe’s negligence, then the Supreme Court is going to take another look at this doctrine. The other thing that tribes should be aware of has to do with tribal payday lending. Some of the justices highlighted payday lending as something they’re looking very carefully at. And if they get a case where a tribe refuses to provide an adequate forum to resolve disputes related to payday lending, the court is going to reconsider the Bay Mills decision.