Casino Spat Could Expose Tribes to Suits by States

     WASHINGTON (CN) – In a move that could expose Indian tribes across the country to lawsuits from state authorities, the Supreme Court agreed Monday to assess plans for a new Indian casino in Michigan.
     Little Traverse Bay Bands of Odawa Indians and Michigan have fought for about two years to prevent the Bay Mills Indian Community from building a small casino in Vanderbilt, an approximately 1.13 square mile village with an estimated population of 562 people.
     Little Traverse feared that the 84-slot machine operation would cause their much larger casino in the city of Petoskey, population 5,670, to lose millions in revenue.
     “The state sued on the more prosaic theory that the Vanderbilt casino is unlawful,” the 6th Circuit summarized last year while vacating a federal judge’s injunction.
     In the lower courts, Little Traverse contended that the Vanderbilt casino would not be built on Indian lands, in violation of a compact between the state of Michigan and Indian tribes.
     But this argument also defeated the tribe’s argument for federal court jurisdiction over the case, the 6th Circuit noted.
     “If the Vanderbilt casino is not located on Indian lands, there is no jurisdiction for the plaintiffs’ claims; if the casino is located on Indian lands, its operation does not violate the compact, which means the claims are meritless,” the 13-page appellate opinion stated.
     Although Indian tribes typically enjoy immunity from lawsuits, Michigan insisted that Bay Mills waived its immunity in its tribal gaming ordinance.
     Unconvinced, the 6th Circuit described that position as an example of “tendentious, junk drawer arguments.”
     The appellate court described how such immunity could be circumvented.
     “Notably, they can ask the United States to sue Bay Mills, since tribes are not immune from suits brought by the federal government,” the opinion stated. “And nothing in our decision casts doubt on the state’s ability to apply non-discriminatory laws against Indians who go beyond the boundaries of Indian country, so long as there is no federal law to the contrary.”
     In addition, it invited the Supreme Court to consider whether a state may bring claims against tribal officers in their official capacity.
     “In fact, the state has already amended its complaint to name various Bay Mills tribal officers as defendants,” the opinion stated. “But those officers are not present in this appeal, and they are not named on the injunction. We express no opinion as to whether, or under what circumstances, those officers may be sued.”
     The Supreme Court took the bait on Monday, granting Michigan’s petition for a writ of certeriori.
     Kurt Perron, the tribal chairman for the Bay Mills Indian Community, said he was “deeply concerned by the U.S. Supreme Court’s decision to review this case as it is in any case where it appears the Court may examine the doctrine of tribal sovereign immunity.
     “We remain confident that the nation’s highest court will agree with our position,” Perron added.
     Michigan Attorney General Bill Schuette, on the other hand, hailed the decision.
     “Today’s ruling sets the stage for an important discussion about the states’ ability to halt the unrestrained expansion of off-reservation tribal casino gambling,” Schuette said in a statement. “We look forward to making our case before the nation’s highest court this fall.”
     Little Traverse is now listed as a respondent alongside Bay Mills, its former legal adversary. It did not immediately respond to a request for comment.

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