U.S. Supreme Court upholds tribal immunity for Bay Mills casino

State may zero in on individuals

FLINT TWP. — Despite a seemingly supportive U.S. Supreme Court ruling on Tuesday, legal hurdles still remain before Bay Mills Tribe would be allowed to build and operate a casino on land it purchased in 2010 at Dutcher and Lennon roads.

State of Michigan vs. Bay Mills Indian Community challenged the tribe’s right to establish tribal lands outside of the reservation. Bay Mills is located in Brimley in northern Michigan. The original suit stemmed from a casino the tribe opened in 2010 in Vanderbilt but has legal bearing on similar potential land uses in Flint Township and Port Huron.

In a majority 5-4 decision, the Supreme Court ruled that sovereign immunity under the Indian Gaming Regulatory Act (IGRA) protects the tribe from being sued by the state but does not preclude “other legal actions.”

The court cited a long list of precedents barring states from suing a tribe.

“In each case, we said a state must resort to other remedies, even if they would be less efficient,” the Supreme Court determined. “There is a difference between the right to demand compliance with state laws and the means available to enforce them.”

That decision remands the case to district court where Michigan Attorney Bill Schuette intends to pursue it, according to a press release issued by his office Tuesday.

In Schuette’s interpretation, the “U.S. Supreme Court has upheld the State of Michigan’s ability to restrain illegal, off-reservation casinos” … and challenge the “illegal expansion of off-reservation gaming by the Bay Mills Indian Community.”

Schuette appealed a ruling by the U.S. Court of Appeals for the 6th Circuit, that Michigan could not obtain a federal-court injunction against the casino because the tribe had sovereign immunity.

“Today the U.S. Supreme Court affirmed the State’s ability to restrain the illegal expansion of tribal gaming on state lands,” Schuette said. “The 5-4 decision upheld the injunctive power of states to sue tribal leaders to shut down illegal casinos, and reaffirmed the state’s authority to bring criminal charges against anyone engaging in illegal gaming on state lands.”

He cited key excerpts in the Supreme Court opinion, specifically that “unless federal law provides differently, Indians going beyond reservation boundaries are subject to any generally applicable state law.”

That means, according to Schuette, the state can deny a license to Bay Mills for an off-reservation casino or bring suit against tribal officials or employees (rather than the tribe itself) seeking an injunction for gaming without a license.

The opinion further stated that “tribal immunity does not bar such a suit for injunctive relief against individuals, including tribal officers, responsible for unlawful conduct. And to the extent civil remedies proved inadequate, Michigan could resort to its criminal law, prosecuting anyone who maintains — or even frequents — an unlawful gambling establishment.”

Essentially, Michigan has “a panoply of tools,” other than suing the tribe that can “shutter, quickly and permanently, an illegal casino.”

The state will continue its suit to permanently close illegal casinos. Prior state judicial rulings led to the closing in 2010 of a casino Bay Mills built and was operating in Vanderbilt. Legal actions halted further developments in Flint Township and Port Huron.

Flint Township Supervisor Karyn Miller said it is premature for her to comment about the outcome of the long-awaited Supreme Court decision.

“I know what their (Bay Mills) intentions are,” she said “They told us it would take a long time.”

The 28 acres Bay Mills purchased in December 2010 has sat vacant during ongoing litigation. Tribal officials have visited the township and spoke with fire and police officials about working with tribal officials on sovereign soil.

The casino held the promise of above-minimum-wage jobs but also would “change the dynamics of the township forever,” Miller said.

At deadline, Bay Mills officials had not responded to a request for comment.

Supreme Court Justices, Antonin Scalia, Ruth Ginsburg and Clarence Thomas issued dissenting opinions in the case. Justice Samuel Alito also was among dissenters. Scalia noted that he has changed his opinion about one of the precedent cases cited in the majority opinion: Kiowa Tribe of Oklahoma, versus Manufacturing Technology Inc. issued in 1998.

“I am now convinced that Kiowa was wrongly decided, that in the intervening 16 years, has grown more glaringly obvious. … Rather than insist that Congress clean up a mess that I helped make, I would overrule Kiowa and reverse the judgment.”

The ruling majority did not concur. It stated that “reversing Kiowa in these circumstances would scale the heights of presumption. Beyond upending ‘long established principles of tribal sovereign immunity,’ that action would replace Congress’s considered judgment with our contrary opinion.”

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