indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
Kill The Tobacco Master Settlement Agreement
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:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Muscogee Nation activist dangled from bridge to stop oil ship (7/31)
Native Sun News: Rapid City mayor denies claim of retaliation (7/31)
Ernestine Chasing Hawk: Rapid City mayor's year of retaliation (7/31)
Brandon Ecoffey: Rapid City continues with tradition of racism (7/31)
Clara Caufield: Northern Cheyenne Tribe leaves people in dark (7/31)
Lakota Country Times: Group seeks to boost Pine Ridge tourism (7/31)
Federal murder charges laid for shooting on Crow Reservation (7/31)
Alex White Plume asks court for permission to plant hemp crop (7/31)
Isleta Pueblo welcomes Secretary Sally Jewell for school event (7/31)
Tribes caught off-guard with mandate from Affordable Care Act (7/31)
Commerce Blog: Secretary Pritzker meets with tribes and youth (7/31)
Tribes in Pacific Northwest 'very worried' about future of salmon (7/31)
Alaska to recognize tribal domestic violence protection orders (7/31)
Moapa Band enters $4.3M settlement for power plant pollution (7/31)
Senate Ad-Hoc Committee on Indian Affairs holds first meeting (7/31)
Donald Trump not shy with invoking race when it comes to tribes (7/31)
Aquinnah Wampanoag Tribe sees big future with Class II casino (7/31)
Catawba Nation still waiting for answer on casino land-into-trust (7/31)
Last defendant sentenced in theft case at Yakama Nation casino (7/31)
Senate committee examines costs of substance abuse on tribes (7/30)
Senate Indian Affairs Committee delays vote on land-into-trust (7/30)
BIA allows two more New Mexico gaming deals to go into effect (7/30)
Former workers at Choctaw Nation casino plead guilty to theft (7/30)
Inmate charged with murdering Mississippi Choctaw man in jail (7/30)
Native Sun News: Keystone XL Pipeline protest draws big crowd (7/30)
James Giago Davies: Don't judge anyone's depth of Lakotaness (7/30)
Tara Houska: DC rally puts focus on threats to sacred Oak Flat (7/30)
Sarah Sunshine Manning: Native mother left to die in a jail cell (7/30)
Julian Brave NoiseCat: Native issues you aren't hearing about (7/30)
Peter d'Errico: Seeking action after apology from Pope Francis (7/30)
Suspect in custody over deadly shooting on Crow Reservation (7/30)
Shooting highlights racial tensions on Wind River Reservation (7/30)
Pueblo man goes on trial for brutal murder of Navajo woman (7/30)
Another sentence in Chippewa Cree Tribe corruption scandal (7/30)
Oglala Sioux Tribe on track to complete $16.5M nursing home (7/30)
Quapaw Tribe hosts relatives for annual language conference (7/30)
Former police chief for Swinomish Tribe pleads guilty to theft (7/30)
Winnebago Tribe seeks more time to remove old bank building (7/30)
Opinion: Eastern Cherokee leaders kick reporter out of meeting (7/30)
Indian family in Washington still pursuing casino on trust land (7/30)
Red Lake Nation leader supports sales of liquor at two casinos (7/30)
Mohegan Tribe reports increase in profit from casino enterprise (7/30)
Sen. Barrasso introduces another version of land-into-trust fix (7/29)
Standing Rock Sioux Tribe adopts banishment for drug dealers (7/29)
Native Sun News: Rapid City trial ends with no defense witnesses (7/29)
Lakota Country Times: Youth come to Pine Ridge for 'Exposures' (7/29)
Charles Trimble: Being mixed-race Indian and being proud of it (7/29)
Ivan Star: It's up to all of us to keep the Lakota language alive (7/29)
Congress fails to provide funds to help tribes comply with VAWA (7/29)
Suit alleges tribal leaders received kickbacks from lobbying firm (7/29)
Flandreau Santee Sioux Tribe claims DOJ support for marijuana (7/29)
Community on Crow Reservation on lockdown due to shooting (7/29)
Former Chippewa Cree Tribe chair sentenced in corruption case (7/29)
Hillary Clinton refuses to answer questions about Keystone XL (7/29)
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.