HomePublicationsNewsletter ArchiveVolume 19Issue 33Supreme Court Hears Oral Arguments in Bay Mills Casino Case

On Monday, December 2, 2013, the United States Supreme Court heard oral argument in the case of Michigan v Bay Mills Indian Community, et al, the matter reviewing the Bay Mills Indian Community’s (“Bay Mills Tribe”) right to open a tribal casino in Vanderbilt, Michigan on lands approximately 125 miles south of its reservation in Michigan’s Upper Peninsula.  During the one-hour oral argument period, the Court heard from Michigan Solicitor General John Bursch, on behalf of the State of Michigan; Neal Katyal of the law firm of Hogan Lovells, on behalf of the Bay Mills Tribe; and U.S. Deputy Solicitor General Edward Kneedler, on behalf of the Federal Government, which filed an amicus brief in the case.

This matter arrived at the U.S. Supreme Court after the Vanderbilt casino was closed following the entry of a preliminary injunction by the U.S. District Court for the Western District of Michigan in March, 2011. The Bay Mills Tribe then appealed this decision to the Sixth Circuit Court of Appeals, which reversed the decision of the District Court last August. The State of Michigan then appealed the Sixth Circuit’s decision to the Supreme Court.  In addition to briefs filed by the State of Michigan, the Bay Mills Tribe and the Federal Government,  seventeen states also filed amicus briefs agreeing with the position of the State of Michigan, while additional amicus briefs in support of the Bay Mills Tribe were filed on behalf of more than fifty federally recognized Indian tribes and other tribal organizations, including the National Congress of American Indians, the National Indian Gaming Association and the Scholars of American Indian Law. 

Monday’s oral argument focused on the second question presented in the case - - whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating the Indian Gaming Regulatory Act (“IGRA”) outside of Indian lands.  Solicitor General Bursch argued that the Bay Mills Tribe does not enjoy immunity in such instance for two reasons, "[f]irst, it makes no sense that Congress intended States to have a Federal injunctive remedy for illegal gaming on reservation, but no injunctive remedy if that gaming takes place on land that is subject to the State's exclusive jurisdiction. Second, a tribe should not have greater immunity than foreign nations. There's no dispute that if France opened up an illegal business in Michigan, casino or otherwise, it would have no blanket immunity."  Supreme Court Hearing Transcript, p. 3. 

Mr. Katyal thereafter opened his argument with a lively exchange with Justice Antonin Scalia:

MR. KATYAL: I would like to begin where my friend did not, with the text of the statute. Congress enacted subsection (A)(ii), like the rest of IGRA, to address gaming solely on Indian lands. In fact, Congress used that phrase "on Indian lands" a whopping 24 times in IGRA. By contrast, IGRA says not a word about off-Indian-lands activity.

JUSTICE SCALIA: So you think Congress really wanted the States to have power to stop illegal gambling on Indian lands, but not to have the power to stop illegal gaming on State lands? Is that --is that the law you think Congress wrote? …

Why would anybody want such a disposition?

MR. KATYAL: Two reasons, Your Honor, why I think Congress made the choice they did… Congress in IGRA was reacting to this Court's decision in Cabazon the year earlier, which had ousted State regulatory jurisdiction entirely from on-Indian-lands activity. So it changed the game entirely [and]…[a]ll IGRA did in (A)(ii) is empower compacts. It didn't abrogate immunity by itself directly; it requires the tribe to affirmatively buy into the idea of State law applying on the reservation.”  Id at p. 29-31, 34.

During Mr. Kneeder’s argument, the Justices discussed the unique nature of tribal sovereign immunity, while noting that this decision could indeed have wide-ranging implications in this area, even beyond tribal gaming.

JUSTICE BREYER: You understand Indian policy. This case has tremendous implications if we follow your approach. It seems to me well beyond  anything to do with gaming. My belief is Indian tribes all over the country, operate businesses off the reservation, and businesses all over the country are regulated. And does the State, I guess, in your view does not have the power to enforce the regulation against the Indian tribe.  Id. at p. 55-56.

It is anticipated that the Court will issue a ruling in this matter, which could have a large impact on issues of tribal sovereign immunity and tribal gaming expansion, near the end of its 2013-2014 term.


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