indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Fredericks Peebles & Morgan LLP
Advertise on Indianz.Com
Home > News > Headlines
Print   Subscribe
Ben Fenner: Conservative justice collides with Indian Country

Filed Under: Law | Opinion
More on: bay mills, ben fenner, immunity, supreme court
   

Attorney Ben Benner dissects oral arguments in Michigan v. Bay Mills Indian Community, a U.S. Supreme Court case that will test the limits of tribal sovereign immunity:
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.

Get the Story:
Ben Fenner: The Uneasy Coexistence of Conservative Justice and Tribal Rights at the Supreme Court (The Native American Times 3/20)


Copyright © Indianz.Com
More headlines...
Stay Connected:

Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Tim Giago: Deaths of Native men in Rapid City remain unsolved (10/20)
Charles 'Chuck' Trimble: Let Crazy Horse's spirit rest in peace (10/20)
Mark Trahant: Races come down to turnout in three key states (10/20)
Native Sun News: Billy Mills wows youth at Black Hills Powwow (10/20)
Cedric Sunray: Tribes abandon traditional aspects of inclusion (10/20)
Dustina Gill: Vote for Rick Weiland to protect our sacred waters (10/20)
Ousted Project Runway contestant reaffirms Puyallup heritage (10/20)
White House Tribal Nations Conference takes place December 3 (10/20)
Bryan Brewer: Park helps Oglala Sioux Tribe protect its culture (10/20)
Robert Porter: Don't let tribal issues fall prey to partisan politics (10/20)
Gabe Galanda: Abramoff's playbook still used in Indian Country (10/20)
Jay Daniels: Let BIA make changes to rights-of-way regulation (10/20)
Mike McBride: Sovereign goodwill at a low in tribal tax dispute (10/20)
Eastern Shawnee Tribe to open resort at ancestral site in Ohio (10/20)
Chukchansi Tribe sends layoff notices to most casino workers (10/20)
Rivals raise nearly $16M to block North Fork Rancheria casino (10/20)
Judge won't let BIA proceed with compact for Pojoaque Pueblo (10/20)
Candidates discuss Menominee Nation's off-reservation casino (10/20)
Opinion: Suckers help Chumash Tribe finance casino expansion (10/20)
Native Sun News: Oglala Sioux Tribe buckles to pressure on park (10/17)
Mark Trahant: Native vote could tip races in Idaho and Colorado (10/17)
Crystal Willcuts: Remembering the beauty that was my mother (10/17)
Blackfeet actress Misty Upham found dead after going missing (10/17)
Citizen Potawatomi Nation sues city over detachment petition (10/17)
Opinion: Politicians relying on Native voters in a close election (10/17)
Poarch Creeks donate another $500K to Democratic candidate (10/17)
Montana to transfer bison from Yellowstone to Fort Peck Tribes (10/17)
Opinion: Listen to Native Americans who oppose racist mascots (10/17)
Charges possible in dispute at Chukchansi Tribe's closed casino (10/17)
Oglala Sioux Tribe might open third casino under new compact (10/17)
Women dominate workforce at Northern Arapaho Tribe's casino (10/17)
Ho-Chunk Nation to shut down poker room after losing lawsuit (10/17)
Blog: What to know about Prop 48 and off-reservation gaming (10/17)
Native Sun News: Native vote plays key role in Senate matchup (10/16)
Dean Chavers: Calling out Ward Churchill and other wannabes (10/16)
Glenn Morris: A sorry spectacle at UN indigenous peoples meet (10/16)
Crosscut to present special award to late activist Billy Frank Jr. (10/16)
Editorial: Our schools can learn from success at tribal colleges (10/16)
Column: Language police want FCC to bar R-word on airwaves (10/16)
Navajo lawyer named chair of Washington gaming commission (10/16)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.