Justice Antonin Scalia of the U.S. Supreme Court wants to use the Michigan v. Bay Mills Indian Community case to severely limit tribal sovereignty.
That much was clear from oral arguments before the court on December 2 to a packed courtroom. Members of the general public who wanted to watch the case were turned away because the high court was already filled to capacity with interested parties, including tribal leaders and citizens, lobbyists, lawyers, and politicos, including former U.S. Rep. Dale Kildee (D-Michigan).
The case was petitioned before the Supremes because Michigan wants the tribe’s sovereign immunity to be waived, so that the state can prevent the tribe from re-opening a casino on off-reservation lands the tribe claims have become protected Indian lands under rules of the Indian Gaming Regulatory Act because the tribe purchased the land with money it received under the Michigan Indian Land Claims Act of 1997.
Tribal sovereign immunity is the legal principle that prevents tribes from being sued, much like state federal governments are immune from many lawsuits. If the state can’t sue the tribe in this instance, and it continues to want to quash the tribe’s ability to open an off-reservation casino, it would have to find some other legal way to do so.
Four justices – Scalia, Stephen Breyer, Samuel Alito, and John Roberts – asked questions and raised points that seem to indicate they would like to limit either the tribe’s sovereign immunity or sovereign immunity for all tribes.
Scalia, it was clear from his tone, wants to use the case to limit immunity and sovereignty for all tribes. At one point he asked lawyer Ed Kneedler, arguing on behalf of the U.S. government for the tribe, who gives tribes sovereignty. “This court,” Scalia said, answering his own question. “So I assume that this court could also determine the scope of their sovereignty.”
The U.S. Congress has previously considered and rejected a number of proposals, including ones by former Sen. Slade Gorton (R-Wash.), to limit tribal sovereign immunity. Tribal advocates have long thought that Congress was the place for this battle to be fought, and they were pleased with Gorton’s defeat in this area.
Breyer appears inclined to look to the limits on foreign sovereign immunity for commercial activities to inform the scope of tribal sovereign immunity, despite important differences between tribes and foreign nations.
Justices Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan, and Anthony Kennedy asked questions and raised points indicating that they have problems with at least some of the state’s legal arguments.
“Counsel, before you go on, could you address the jurisdiction question for me?” Sotomayor asked of lawyer John Bursch, representing the state, early on. “I'm not sure why you're here.” She noted the district court expressly did not include the state in the denial for an injunction against the tribe’s off-reservation casino.
Ginsburg also said the case should not be at the court. “[C]an you tell—tell us why Michigan didn't resort to the dispute resolution means that the compact [between Michigan and the tribe] provided?” she asked Bursch. “The compact said if there's a dispute it'll be decided by arbitration. Michigan bypassed that.”
Bursch told the justices that “all roads lead to tribal immunity,” but several tribal and federal interests dispute that notion, saying that Michigan and other states want tribal sovereign immunity limited with the high court so as to limit tribal sovereignty and gaming—and competition to state gaming interests.
Justice Clarence Thomas asked no questions, as is the norm for him.
Before oral arguments, tribal lawyers and lobbyists largely feared that a majority of the court would use the case to limit sovereign immunity and/or Indian gaming for all tribes. Many D.C. based Indian-focused lawyers put pressure on Bay Mills citizens and lawyers to waive the tribe’s immunity to avoid the justices altogether, but Bay Mills would not relent.
Beyond the obvious signs of where Scalia and Sotomayor are leaning, the rest of the oral arguments gave little indication of a final outcome, which is not expected until spring.
Judging from interviews and Facebook postings, some Bay Mills tribal citizens who reviewed a transcript of the arguments were optimistic; others were fearful. Bay Mills tribal lawyers and leaders have not responded to requests for comment on how they feel the proceedings went.
Joseph Webster, a partner with Hobbs Straus who filed an amicus brief supporting Bay Mills on behalf of several other tribes, assessed that the arguments were “intense,” but he saw reasons for optimism.
“[I]t was encouraging that a number of the justices recognized that the state of Michigan has remedies available that do not require a change to the doctrine of tribal sovereign immunity, including the negotiated dispute resolution provision in the [gaming compact between the tribe and state],” Webster said. “Based on the questions, there are reasons to be optimistic that a majority of the justices will agree that any substantial change to the doctrine should be left to Congress, which has repeatedly recognized the importance of sovereign immunity to tribal sovereignty and economic development.”
Regarding Scalia’s views, Webster was judicious. “Justice Scalia appears to have an expansive view with respect to the court's role in recognizing and limiting tribal sovereignty,” he said. “His focus on using changed circumstances to justify modifying the law is certainly surprising in light of his analysis in other non-Indian cases.”
Chris Stearns, a Navajo lawyer with Hobbs Straus, meanwhile, was less hopeful. “I can't think of a real reason for optimism except that we may one day live to see a court with Chief Justice Kagan.”