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Supreme Court rules only Congress can modify tribal immunity

Crowe’s Michael McBride discusses favorable ruling in recent Michigan case involving tribal immunity, which adhered to a precedent set by an Oklahoma case.
by Paula Burkes Modified: June 5, 2014 at 10:00 am •  Published: June 4, 2014

Q&A with Michael McBride III

High court rules only Congress can modify tribal immunity

Q: In Michigan v. Bay Mills Indian Community, decided on May 27, Indian country received a rare and monumental win. Tell us about the case.

A: The Bay Mills Indian Community constructed a casino on land which it bought with federal settlement money and felt Congress had approved as Indian land. The state of Michigan sued Bay Mills in federal court to stop gaming on the land. The district court agreed with Michigan, but the court of appeals reversed. In a 5-4 vote, the Supreme Court held the tribe couldn’t be sued without the consent of the tribe or Congress. The court revisited whether to preserve the doctrine of tribal sovereign immunity and whether to revisit and reverse its 1998 decision in Kiowa Tribe of Oklahoma v. Manufacturing Technologies. In that case, the Supreme Court vacated a series of decisions from Oklahoma that refused to recognize tribal immunity off of Indian country. Last week, the court adhered to precedent and made clear that it’s the prerogative of Congress, not the courts, to modify tribal immunity.

Q: What is the impact of this decision on tribes?

A: A bad outcome could have crippled tribal governments and left tribal treasuries vulnerable to legal assault. Michigan, joined by Oklahoma and other states, asked the court to toss the long-standing doctrine of tribal immunity for off-reservation commercial conduct. Tribal immunity remains protected for now, but the Supreme Court hinted that it might modify the doctrine under other circumstances if a claimant has no remedy available. The Supreme Court also suggested that individual tribal officials who act outside the law could be hauled into court. In Bay Mills, the Supreme Court also took a close, and narrow, look at the Indian Gaming Regulatory Act of 1988 (IGRA) to determine whether it separately waived the tribe’s immunity. While IGRA waives immunity for compact violations “on Indian lands,” the Court found it did not apply on non-Indian land, which was the entire basis of Michigan’s lawsuit.

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by Paula Burkes
A 1981 journalism graduate of Oklahoma State University, Paula Burkes has more than 30 years experience writing and editing award-winning material for newspapers and healthcare, educational and telecommunications institutions in Tulsa, Oklahoma...
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