In the closely watched case of Michigan v. Bay Mills Indian Community, the U.S. Supreme Court recently ruled 5-4 that Native American Indian tribes have tribal sovereign immunity and therefore cannot be sued. The National Indian Gaming Association, however, said it will closely watch the response from Congress, since the court said Congress can waive tribal immunity through statute.
In a statement, NIGA Chairman Ernest Stevens said: “NIGA is pleased that the doctrine of tribal sovereign immunity remains intact and that the Supreme Court acknowledged our status as sovereigns under the Constitution and through treaties. NIGA will monitor Congress’ reaction to the Supreme Court’s Bay Mills decision.”
The Bay Mills tribe opened an off-reservation casino on land that is not in trust or fee status; the Indian Gaming Regulatory Act only covers land that is held by a tribe. As a result, the Supreme Court majority ruled the state cannot sue Bay Mills for commercial activities that take place on its land. Writing for the majority, Justice Elena Kagan stated, “Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian self-government.”
NIGA agreed, stating, “Congress has repeatedly declined to legislatively weaken tribal sovereign immunity, in fact, in many statutes passed since Kiowa, the Congress has strengthened or acknowledged tribal sovereign immunity and jurisdiction.” Kiowa Tribe v. Manufacturing Technologies was a precedent-setting case from 1998.
The Supreme Court also noted that the state could demand a waiver of sovereign immunity to address the Bay Mills situation through its Class III compact. The decision also allows other remedies to fight off-reservation casinos, including suits by the states targeting individual tribal officials and casino executives.
The Senate Indian Affairs Committee will hold a hearing on the subject this summer.
