Supreme Court justices will hear Michigan v Bay Mills Indian Community in December after three years of legal wrangling over the tribe’s operation of a casino with 34 slot machines, 125 miles south of its reservation.
The tribe has not attempted to have its property in Michigan’s Lower Peninsula placed in federal trust for a casino as required under the Indian Gaming Regulatory Act (IGRA).
Instead, it claims jurisdiction under the Michigan Indian Land Claims Settlement Act (MILCSA).
In a lawsuit joined by Attorneys Generals in 17 other states, Michigan contends the at least temporarily-shuttered casino constitutes illegal off-reservation gambling.
“If state sovereignty means anything, it must include the ability to stop illegal conduct on lands under state jurisdiction,” Michigan Attorney General Bill Schuette said in a brief filed with the court last month.
“If Bay Mills is allowed to break the law by opening casinos outside Indian lands, tribes that follow the law will be unfairly disadvantaged by illegal, competing casinos, or even encouraged to engage in the same unlawful behavior.”
Tribes throughout the country are alarmed at the court case.
Many doubt the merits of Bay Mills’ legal argument and most are critical of the wisdom of allowing the matter to reach a Supreme Court notorious for its anti-Indian rulings.
Justices will focus on the state’s ability to sue under the tribal-state compact and not the merits of the casino, said Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University.
“With the doctrine of tribal sovereign immunity and the authority of states under IGRA on the table, this case has become high-stakes litigation for Indian tribes across the country,” Native American Rights Fund executive director John Echohawk said in a letter to the website Turtle Talk.
The letter was co-signed by Jefferson Keel, president of the National Congress of American Indians, who with Echohawk noted the Supreme Court under Chief Justice John Roberts has ruled against tribes in nine out of ten cases.
The court announced it would hear the case despite a U.S. Solicitor General opinion that the tribe was immune from the state’s lawsuit.
James Nye, a government affairs consultant for several Michigan tribes, said the high court could give states power to enforce IGRA violations off Indian lands. It also could limit tribal sovereignty against similar lawsuits.
“Almost certainly there will be very negative consequences for all of Indian country if the court was to side with the state of Michigan,” Nye said.
“It’s either going to be a nominal impact to tribal sovereignty immunity [or] a complete devastation of the tribal sovereign immunity doctrine.”
Bay Mills leadership is aware of the danger.
“The Bay Mills Indian Community is deeply concerned by the U.S. Supreme Court’s decision to review this case as it is in any case where it appears the court may examine the doctrine of tribal sovereign immunity,” Bay Mills tribal chairman Kurt Perron said.
“We remain confident that the nation’s highest court will agree with our position.”
Citizens of the 1,400-member tribe in what was at times an emotional meeting last week voted 2-1 to proceed with the case rather than vacate the legal action. Tribal leadership urged the decision.
“Everybody who follows Indian law is always concerned when the Supreme Court takes a case,” said Bay Mills tribal citizen Bryan Newland, a former legal counsel with the Department of Interior.
“But I also think the tribe has the law on its side when it comes to jurisdiction and sovereign immunity, which are questions presented to the court.
“The court’s track record on Indian law speaks for itself,” Newland said. “But I sincerely hope they uphold the law.”
A Capitol Hill lobbyist who requested anonymity disagrees.
“Bay Mills is out of control on this,” the lobbyist said. “They’re going to get whacked. They know they’re going to get whacked. Indian country is frightened by this case.”
Bay Mills operates two casinos on its reservation in the Upper Peninsula’s Chippewa County, generating some $30m a year in slot revenue. But the tribe has repeatedly attempted to locate casinos in more populous regions of the state.
The Sault Ste. Marie Tribe of Chippewa Indians is attempting the use the same land claims process to open a casino in Lansing, Michigan’s state capital.
U.S. District Court Judge Paul Maloney ordered the Vanderbilt casino closed in early 2011 while the matter worked its way through the legal system. The 6th Circuit U.S. Court of Appeals overturned the decision in August of last year. The tribe has voluntarily kept the casino closed.
Michigan tribes operating 23 casinos are largely opposed to the off-reservation efforts by Bay Mills and Sault Ste. Marie.
“The legal theory … would allow the Bay Mills and Sault Ste. Marie to buy land anywhere in the continental United States and open as many casinos as they choose. It’s a ridiculous theory,” Nye said.
“Congress would not support that. No court of law will support that. There couldn’t be a worse set of facts to put before the Supreme Court.
“This case is on the leadership of Bay Mills and Sault Ste. Marie. Make no mistake about it. They have their names on it. They are going to have to live with the outcome. It’s their fault.”
