A faceoff between the state of Michigan and an Upper Peninsula Indian tribe over a proposed casino reached the US Supreme Court. The court is being asked to decide the limits of tribal sovereignty when a tribe attempts to set up a casino or some other business outside a reservation.
Specifically, the issue is whether Michigan and other states can ask a federal court to block a casino that violates their regulations. The Bay Mills tribe says they can’t because Congress never passed a federal law to allow it. It says the Indian Gaming Regulatory Act only covers casinos on tribal land.
Justice Antonin Scalia had some sharp questions on that point.
“You really think Congress would want to regulate gaming on Indian land, but not off Indian land? “ he asked. “Why would anyone do that?”
Bay Mills’ attorney Neal Katyal said the court should not second-guess why Congress does or does not act on an issue.
“There’s lots of different ways to deal with this question,” he said. “The last thing this court should do is change the rules of the game in respect to tribal immunity.”
And some justices were interested in why Michigan didn’t use arbitration allowed by a gaming treaty, or its police authority instead of challenging tribes’ sovereign immunity power in federal court.
“I’m not sure why you’re here,” Justice Sonia Sotomayor said to Michigan Solicitor General Sonia Sotomayer.
Everyone agreed that the now-shuttered casino in Vanderbilt – 100 miles from the official home of the Bay Mills Indian Community – violates Michigan’s gaming laws, and the state could go in and arrest tribal officials, employees, even customers. Bursch says that’s the sort of confrontation Michigan wants to avoid by using the federal court’s civil authority.
“If we absolutely had to, the state would probably have to send in the armed State Police and start arresting people, but we want to avoid that at all costs because we want to be respectful as possible to the tribe.”
Bursch says if the state loses, tribes from anywhere could set up enterprises that violate state laws. He used under-aged drinking, prostitution, and polluting industries as potential examples.
Bursch says that’s why states like Michigan rely on federal courts to resolve these sorts of conflicts.
“It’s really like a zero-sum game,” he said. “Anytime that you give another sovereign the ability to operate illegally on lands that are under the state’s exclusive jurisdiction and not allow the state to have its full array of remedies, you’ve taken away some of that state’s sovereignty, and that’s a very serious thing.”
The case is being widely watched. Seventeen states have joined together to file supporting briefs in the case. So have 65 tribes concerned that immunity for all kinds of off-reservation enterprises is at stake depending on how the Supreme Court rules.
The decision could also affect plans for proposed tribal casinos in Lansing, Flint, and Port Huron.
The court’s decision should come down next year.