Kevin K. Washburn, head of the Bureau of Indian Affairs, recently weighed in about the U.S. Supreme Court’s recent decision regarding the case in which the state of Michigan sued the Bay Mills tribe over a casino that they had opened on land that had not yet been put into trust.
In an interview with Indian Country Today Washburn, the top federal official tasked with dealing with Indian law, commented on the recent decision, where the high court ruled that tribal sovereignty prevents the state from suing the tribe over its off-reservation casino under the Indian Gaming Regulatory Act.
Washburn told a story from a lawyer he knew that he said illustrated what could have happened if the court had taken another direction. “You know, when I was a kid, some friends and I found a World War II grenade. And we decided we were going to blow it up. So we pulled the pin and we threw it. Nothing happened. It was a dud. Fortunately, no one was hurt, and I think that a lot of Indian Country feels that way about the Bay Mills decision. The Bay Mills Tribe took a risk with sovereign immunity—and fortunately, no one was hurt. Justice Elena Kagan wrote the decision and it was a 5 to 4 decision in favor of tribal sovereignty.”
Washburn noted that Justice Kagan was exposed to Indian law when she was dean of the Harvard Law School and learned about it in numerous contacts with scholars conversant with Indian law. “That had a subtle, but important impact in educating her, I’m sure. Some of the justices on the Supreme Court don’t know anything about Indian tribes except what they read in briefs. She’s had more experience because of her time at Harvard.”
He added, “I feel like we dodged a bullet in the Bay Mills case. The Supreme Court did the right thing and recognized the existence and importance of sovereign immunity, so that’s a good thing. But it makes me nervous to keep testing the limits of tribal sovereignty in this Supreme Court. Sometimes we will lose, as in Carcieri, Patchak, and the tragic Baby Girl case.”
