January 17, 2017

The Uneasy Coexistence of Conservative Justice and Tribal Rights at the Supreme Court

— A Justice-by-Justice, Courtside view of the Bay Mills argument —

Many people outside of Indian Country are unaware that something big is brewing at the Supreme Court for Indian tribes.  And, perhaps surprisingly, the conservative justices appear poised to uphold tribes’ ability to develop their economies and support their communities.

Michigan v. Bay Mills Indian Community, argued last December, is ostensibly about Bay Mills’ rights under federal law to open a casino on lands it owns in the State of Michigan.  The State of Michigan’s position in this case is that, not only can the Tribe not open the casino, it cannot leave its reservation and engage in commercial activity as a government.  In other words, Michigan (and at least the 17 other states that signed on in support of Michigan’s position) seek to confine tribal immunity from suit to on-reservation activity.[1]

Justice Alito’s conservative tendencies, if not his respect for tribal sovereign immunity, could turn the Court to reject eliminating that immunity in the off-reservation commercial context.  His questioning in Bay Mills exhibited concerns with usurping Congressional power, held to be plenary in the field of tribal relations since the founding of this Country.  This judicial conservatism, which he shares with Justice Roberts, may align these Justices with the more liberal wing, which has historically been the Court’s strongest and most active proponent of tribal rights.  

The strongest proponent of tribal interests during the Bay Mills questioning was Justice Kagan.  One more lucid moment was her colloquy with Justice Scalia in the middle of the State’s rebuttal argument.  Justice Kagan pointed out to the State’s attorney that it would be strange for the Supreme Court in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. (the 1997 case that upheld tribal sovereignty in the off-reservation, commercial context) to drop a broad hint and invite Congress to revisit tribal sovereignty for off-reservation conduct and then, 15 years later, say Congress didn’t take our hint and so we’ll step in now.  Justice Scalia retorted that maybe the Court learned something in 15 years.  Justice Kegan replied that, yes, maybe we learned that Congress does not want to change tribal sovereignty.   For a self-described deferential court, this argument should carry the day—the Court left this to Congress; Congress has in fact upheld tribal sovereignty for off-reservation, commercial conduct; and the Court should defer to the will of Congress.  However, it is evident that the current Court is not deferential and will overturn well-established law (such as the Voting Rights Act) which it feels is outdated.  Thus, if it questions the continuing need of tribal sovereignty in the commercial context (and Justices Scalia and Thomas are obviously hostile to the tribal rights that have been confirmed by the Court over the years) it will find a way to modify Kiowa to allow at least an Indian gaming exception. 

This was Justice Kennedy’s position during Bay Mills—he openly questioned whether tribal sovereignty should continue to apply to gaming.   It is unclear whether he will play a pivotal role in this case, especially when the State is asking the Court to modify the Kiowa decision which he authored.    

One concern arising frequently during argument was whether the state had means other than suing the Tribe available to it.  This concern—and the fact that the State does have other relief available—may help turn a majority away from a further erosion of tribal sovereign rights in its Bay Mills decision (which is expected out this spring). 

This appeared to be Justice Alito’s concern.  For much of the State’s presentation, he was leaning in and trying to understand one point: whether the State had other relief available.  He asked the state whether it could arrest patrons or workers or seize the gaming machines.  The state replied it could but what it was attempting here (i.e. to sue the Tribe) was far less intrusive.  Justice Kagan addressed the State directly on this point, saying that the other avenues of relief available to it (including arresting patrons or workers or conditioning the grant of state licensing to stop the casino) are not as intrusive as unilaterally abrogating tribal sovereignty.

If this is what was bothering Justice Alito—the fact that making new common law which drastically alters the legal landscape is extreme (forget about the effect on tribes) especially when there are other avenues of relief available to the State— then it appears he may be moderate in his approach to deciding this case.  Justice Alito also notes that any gaming compact lays out the relief available to the State in this context and, in negotiating, the State has unequal bargaining power and can demand a waiver.

 Justice Roberts did not speak much during argument. The few questions he had went to other avenues of relief available to the State and thus he appeared to echo Justice Alito’s concerns.

Many Justices (notably Justice Scalia, Justice Kagan, Justice Kennedy and Justice Ginsburg) questioned the foundation of the Tribe’s argument—that only Congress can alter tribal sovereign immunity—and offered ways which the Court could cut back (if not eliminate) tribal sovereignty.  Underlying this position is the erroneous belief that tribal sovereignty is, as Justice Ginsburg stated, a “doctrine” which was “made” by the Court.

Justice Breyer was not concerned with the origins of tribal sovereignty.  His view is that the law is the law, whether court made or naturally endowed by way of tribes’ relationship to (and absence at the signing of) the United States Constitution.  His statement from the bench was that if, on balance, the Tribe and State offer equally strong arguments, the Court is obligated to follow precedent and uphold Kiowa and its recognition that tribal sovereignty applies off reservation in the commercial context.  It may be that, all things being equal in this battle of the sovereigns, the Court abides by this sound judicial policy of restraint and respects the rule of law.   


Ben Fenner is an Indian Law lawyer working in DC practicing with the firm Fredericks Peebles & Morgan for the last seven years.  He was in the courtroom at the US Supreme Court last December during the Michigan v. Bay Mills argument (the case that could erode tribal sovereignty for activity conducted off the reservation).