On Tuesday, May 27, the United States Supreme Court issued its
long-awaited decision in Michigan v. Bay Mills Indian
Community, Case No. 12-515. In a split, 5-4 decision with
Justice Kagan writing for the majority, the Court affirmed the
continuing existence and vitality of tribal sovereign immunity,
rejecting the State's efforts to substantially limit or
altogether abrogate the doctrine.
The key takeaway from the majority's opinion is that the
Court continues to recognize tribes' inherent, historical
sovereignty, which includes sovereign immunity, to the extent that
it has not been "unequivocally" abrogated by Congress or
waived by a tribe. See Bay Mills Slip Op. at 7. This
immunity applies to suits arising out of on and off-reservation
conduct and to suits brought by states as well as private
individuals. See id. at 5-6. The Court emphasized that
this holding carries on a long line of cases recognizing and
affirming tribal sovereign immunity, and that tribes and others
have relied on those cases as settled law that should not be
lightly disturbed. Id. at 15-16. If there is to be an
exception to tribal sovereign immunity for off-reservation
commercial conduct, as the State requested, it can come only from
Congress, not from the courts. Id. at 20.
While the overall result in Bay Mills is a good one for
tribes – better than many anticipated, in fact – the
opinions issued by the Court contain some cautionary notes as well.
Justice Kagan's majority opinion expressly noted that Michigan
has a number of options other than a direct lawsuit against the
Community to stop the allegedly unlawful, off-reservation gaming
operation. Id. at 12. Options that she identified included
denial of state gaming licenses, criminal prosecutions under state
law for those participating in allegedly unlawful, off-reservation
gaming, and, perhaps most disconcertingly, lawsuits against tribal
officials seeking to enjoin tribal activities, which Justice Kagan
affirmed are not barred by tribal sovereign
immunity. See id. at 12-13. This last comment is
particularly concerning because Justice Kagan did not indicate that
such suits are limited to claims based on violations of federal
law; it is therefore possible that would-be plaintiffs will use the
Bay Mills decision to contend that they can seek
injunctive relief against tribes, through lawsuits against tribal
officials, for any alleged violation of federal or
state laws.
Justice Kagan also hinted that the Court's analysis might
have proceeded differently if the State had no other available
alternatives to stop the Community's allegedly unlawful
activity, or if a tribe were being sued by someone such as a tort
plaintiff (e.g., someone injured in an off-reservation
traffic accident with a tribal employee or in a slip-and-fall at an
off-reservation, tribally owned facility) who had no other possible
remedy against the Tribe. In our view, this emphasizes the need for
tribes to seriously consider enacting tribal laws providing some
avenue for relief for those allegedly injured by tribal activities.
It is much better to offer a right of action in tribal courts, for
instance, than to run the risk of creating a case that the Supreme
Court might decide exceeds the proper scope of tribal sovereign
immunity.
There is no doubt that the Bay Mills decision represents a victory for tribal interests. But a close reading of Justice Kagan's majority opinion, not to mention the dissenting opinions of the four justices who would severely limit or altogether abolish tribal immunity, shows that Bay Mills is simply one battle in an ongoing war.
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