The U.S. Supreme Court recently ruled that the state of Michigan could not sue the Bay Mills Indian Community for operating a casino on land that the tribe believed was trust land because of sovereign immunity.
However, some tribal attorneys worry that dissenting opinions by some justices, including the liberal Ruth Bader Ginsburg and conservative Clarence Thomas might be a red flag for future problems down the road.
The high court ruling confirmed an earlier ruling that tribes have sovereign immunity from lawsuits, as states and the federal government do.
The tribe was operating a commercial facility on land that it purchased but had not yet converted into trust land. The state sued following the logic that the tribe could be sued for a commercial operation that was off the reservation.
Ginsburg and Thomas joined in a dissent that said, “In Kiowa Tribe of Okla. v. Manufacturing Technologies Inc., this court extended the judgment doctrine of tribal sovereign immunity to bar suits arising out of an Indian tribe’s commercial activities conducted outside its territory,” and added, “That was error. Such an expansion of tribal immunity is unsupported by any rationale for that doctrine, inconsistent with the limits on tribal sovereignty, and an affront to state sovereignty. That decision, wrong to begin with, has only worsened with the passage of time.”
The dissenting opinion asserted that Congress and not the courts should decide this issue. The attorneys opined that the state sued not because it cared about the tribe operating a casino, but because it wanted to try to limit tribal sovereignty.
Other states are also trying to test the limits of tribal sovereignty, including in Oklahoma, where the city of Shawnee wants a tribe to collect sales tax in a tribal-owned and operated store.
