State Cannot Sue Tribe for Off-Reservation Gaming

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today in Michigan v. Bay Mills Indian Community that a Native American Indian Tribe is immune from a suit by the State of Michigan for off-reservation gaming.  Our oral argument preview is here.

The 5-4 ruling was an unusual split: Justice Kagan wrote for the majority, which included Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor.  Justice Sotomayor filed a separate concurrence.  Justice Thomas wrote a dissent, joined by Justices Scalia, Ginsburg, and Alito.  Justice Scalia filed a separate dissent.

The Court held that tribal sovereign immunity bars Michigan's suit against the Bay Mills Indian Community for opening a casino outside its tribal lands.  The Court ruled that Congress did not abrogate immunity, and the Tribe did not waive it, and that there's no good reason to revisit prior decisions holding that tribes have immunity even when a suit arises from off-reservation commercial activity.