Argument preview: A tale of two sovereigns

Markham Erickson is a partner in the Washington office of Steptoe & Johnson LLP.

On December 2, the Supreme Court will hear oral arguments in Michigan v. Bay Mills Indian Community, a case involving fascinating questions of jurisdiction and the doctrine of sovereign immunity for federally recognized Indian governments.  The irony of the fact that the case will be heard on the heels of Thanksgiving will be appreciated by some observers.

The Indian Gaming Regulatory Act regulates gaming by Indian tribes.  Among other things, Section 2710(d)(7)(A)(ii) of IGRA provides that a tribe can engage in Class III gaming (i.e., Las Vegas-style casino gambling) on Indian lands pursuant to a compact between the state and the tribe.

The Bay Mills Indian Community (“Bay Mills”) purchased land using funds established under the Michigan Indian Land Claims Settlement Act.  Bay Mills later opened a Class III gaming facility on that land.  Michigan sued Bay Mills in federal district court to close the gaming facility, arguing – among other things – that the purchased land did not qualify as Indian lands as required by IGRA.  The district court issued a preliminary injunction, ordering the tribe to shutter the gaming facility.

The U.S. Court of Appeals for the Sixth Circuit vacated the ruling and held that the federal court lacked jurisdiction over the case because Michigan’s pleading (necessarily) admits that the Bay Mills facility was not located on Indian lands.  The state also asserted a claim under “federal common law” and two claims under state law, contending that the courts had federal-question jurisdiction over the claims under 28 U.S.C. § 1331.  The Sixth Circuit dismissed these claims based on the tribe’s sovereign immunity.

Michigan claims that a federal court has jurisdiction over its claim under Section 2710(d)(7)(A)(ii) because tribal officials authorized and supervised the gaming that occurred on the lands in question from the tribe’s reservation, which is considered Indian land under IGRA.  The state claims that such authorization and supervision constitute “gaming activity” on Indian lands, even though the facility is not located on Indian lands.

With respect to sovereign immunity, Michigan asks the Court to take a “holistic” approach to this case.  It asserts that it is “immediately apparent” from the IGRA framework as a whole that Congress understood and expected that a state could enforce its gaming laws in federal court against a tribe engaging in off-reservation gaming.

Alternatively, the state asks the Court to adopt a new limitation to the concept of tribal sovereign immunity – specifically, that tribes do not enjoy sovereign immunity when engaging in commercial activity on lands subject to the jurisdiction of the state.

With respect to the state’s interpretation of Section 2710(d)(7)(A)(ii), the tribe first dismisses the state’s argument that the “gaming activity” of supervising occurred on Indian land as falling outside the question presented to the Court.  The tribe also argues that IGRA’s language on its face precludes federal jurisdiction.

The tribe agrees with Michigan that, but for the tribe’s sovereign immunity, the state would have raised a valid claim under federal jurisdiction pursuant to 28 U.S.C. § 1331.  The tribe argues, however, that the Sixth Circuit was correct to hold that tribal sovereignty can only be abrogated in two ways: (1) consent of the tribe or (2) action by Congress to affirmatively abrogate sovereignty.

The tribe asks the Court to reject the state’s invitation to narrow the concept of tribal sovereignty when the tribe has not consented to being sued by the state and Congress has not specifically abrogated it.

Interestingly, and not uncommon in Indian law, a dispute that could and possibly should be resolved before it reaches the Court is likely to have an important say on the jurisprudence over the scope of an Indian tribe’s sovereignty.