HomePublicationsNewsletter ArchiveVolume 19Issue 31Additional Briefs Filed in Vanderbilt Casino Case in Advance of U.S. Supreme Court Oral Argument

Over the past two weeks, a number of briefs have been filed with the U.S. Supreme Court arguing in favor of the Bay Mills Indian Community’s (“Bay Mills Tribe”) right to open a tribal casino in Vanderbilt, Michigan.  The Bay Mills Tribe had opened a casino in Vanderbilt in November, 2010 on land that was approximately 125 miles south of its reservation land located in Michigan’s Upper Peninsula.  The casino was closed following the entry of a preliminary injunction by the U.S. District Court for the Western District of Michigan in March, 2011.  The Bay Mills Tribe then appealed this decision to the Sixth Circuit Court of Appeals, which reversed the decision of the District Court last August.  The State of Michigan has now appealed the Sixth Circuit’s decision to the U.S. Supreme Court and filed its Petitioner’s Brief arguing against the legality of the Vanderbilt casino on August 30, 2013.  Seventeen states have also filed amicus briefs agreeing with the position of the State of Michigan.

The case has attracted national attention due to the significant precedent it could set in the area of Indian gaming in this country. The case will review two issues: (1) whether a federal court has jurisdiction to enjoin activity that violates the Indian Gaming Regulatory Act (“IGRA”) but takes place outside of Indian lands; and (2) whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands.

On October 24, 2013, the Bay Mills Tribe filed its Petitioner’s Brief in the case, arguing, among other things, that tribal sovereign immunity bars the current action by the state of Michigan:

“This is one of the rare cases before this Court that is squarely controlled by settled precedent. Michigan sued the Bay Mills Indian Community by name, seeking severe financial penalties and an injunction against the tribe. This Court has repeatedly held that “an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity...Because Bay Mills did not waive its immunity, and Congress did not abrogate it, the case cannot go forward against the tribe—regardless of the answers to academic questions about whether IGRA or some other statute would otherwise have provided the district court with subject matter jurisdiction. A straightforward application of the doctrine of tribal sovereign immunity thus resolves this case.”  Petitioner’s Brief, p. 1-2.

The Bay Mills Tribe also argues in its Brief that any dispute between the parties should be settled by the process of arbitration set forth in the applicable Tribal-State Gaming Compact, and also that the parcel upon which the Vanderbilt casino is located should be considered “Indian lands” because this land was purchased with funds received from the 1997 Michigan Land Claims Settlement Act, an act of Congress which provided that “[a]ny land acquired with funds from the Land Trust shall be held as Indian lands are held.”  Id, at p. 11.

On October 31, 2013, additional amicus briefs in support of the Bay Mills Tribe were filed on behalf of more than fifty federally recognized Indian tribes and other tribal organizations, including the National Congress of American Indians, the National Indian Gaming Association and the Scholars of American Indian Law.  Notably, an amicus brief was also filed on behalf of the United States in support of the Bay Mills Tribe, which noted that “the United States has a substantial interest in the continued recognition of tribal sovereign immunity from suit, which furthers Congress’s policy of encouraging tribal self-determination and economic development.”  The arguments of the Federal Government, however, focused on issues of jurisdiction and sovereign immunity. U.S. Solicitor General Donald Verilli has also filed a motion asking the Court for permission to participate in this matter’s oral argument.

This case will be heard by the U.S. Supreme Court on Monday, December 2, 2013.  It is anticipated that a decision in this matter will be issued near the end of the Court’s 2013-2014 term.

The docket report for this case can be viewed at the following link: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-515.htm


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