Blog Goodwin Gaming June 24, 2013

The Odds of Off-reservation Tribal Gaming: Supreme Court to Hear Bay Mills Case

By Willy Jay

Gaming issues have returned to the Supreme Court’s docket.  This fall, the Court will hear a tribal-gaming dispute that raises complicated jurisdictional issues involving a state’s right to sue an Indian tribe under federal law for allegedly breaching its gaming compact.  The case is significant because it involves a tribe attempting to start a new gaming facility on land far from its reservation that it bought on the open market.  A decision is likely in spring 2014.

The State of Michigan brought the case to the Supreme Court (Michigan v. Bay Mills Indian Community, No. 12-515).  The Bay Mills Indian Community has a tribal-state compact with Michigan, and its tribal gaming ordinance allows it to conduct class III gaming on tribal trust lands where the Indian Gaming Regulatory Act (IGRA) allows it.  The Bay Mills reservation is on Michigan’s Upper Peninsula near the Canadian border.

The Bay Mills Tribe also has a federal land trust, containing monies awarded pursuant to judgments of the Indian Claims Commission.  Federal law provides that land bought using that money “shall be held as Indian lands are held.”

The Bay Mills Tribe now wants to open a casino 125 miles from its reservation, on Michigan’s Lower Peninsula, using land it has bought with money from its land trust.  The Tribe contends that IGRA allows gaming on that type of land even though it is not part of the Tribe’s reservation and has not been taken into trust by the Secretary of the Interior.

Michigan and another tribe, the Little Traverse Bay Bands of Odawa Indians, have sued the Bay Mills Tribe under IGRA, contending that the Tribe has violated its compact with Michigan by seeking to open a gaming facility on non-Indian lands.  The district court entered a preliminary injunction, but the U.S. Court of Appeals for the Sixth Circuit rejected those suits, because the relevant provision of IGRA gives federal courts jurisdiction to enjoin gaming activity that violates a compact only if it is “located on Indian land,” and to the extent Michigan had claims under other federal laws, they were barred by the Bay Mills Tribe’s sovereign immunity.

Michigan filed a petition asking the Supreme Court to review both the interpretation of IGRA and the application of tribal sovereign immunity.  The Supreme Court asked the Solicitor General of the United States to weigh in with the federal government’s views; the SG urged the Court to deny review and opined that the Sixth Circuit got the answers right.

Today the Court rejected the SG’s recommendation and agreed to decide both the IGRA question and the sovereign immunity question.  Briefs will be filed over the summer, and the Court will hear oral argument in the fall, probably after Thanksgiving.  A decision should come before June 2014.