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
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:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Supreme Court deals setback to tribes in labor sovereignty dispute (6/27)
Shinnecock Nation hits the end of the line with ancestral land claim (6/27)
Supreme Court won't hear Pauma Band compact negotiation case (6/27)
Native Sun News: Rebuilding the Lakota Nation through education (6/27)
Clara Caufield: Out fishing on the Upper Boulder River in Montana (6/27)
Anonymous: Fighting back against victimization in Indian Country (6/27)
Andre Cramblit: Fond memories of growing up with Muhammad Ali (6/27)
Linda Greenhouse: Supreme Court goes silent in high-profile case (6/27)
Omaha Tribe cooperates with federal investigation into payments (6/27)
Northwest tribes take a stand against oil terminal in Washington (6/27)
Indigenous Digital Archive Project wins grant for online database (6/27)
Donald Trump fares poorly against Hillary Clinton in national poll (6/27)
Kootenai Tribe hopes to lure Canadian customers back to casino (6/27)
Tribes rest easy as Supreme Court wraps up a surprising session (6/24)
Tribes in northern California take action to protect salmon runs (6/24)
Aaron Payment re-elected as chairman of Sault Ste. Marie Tribe (6/24)
Gun Lake Tribe hosts annual Sweet Grass Moon Powwow in July (6/24)
Native Sun News: First Native hockey referee 'Butchy' passes on (6/24)
Delphine Red Shirt: Lakota people denied voting rights on our land (6/24)
Ruth Hopkins: Saving sacred Bear Butte from a massive biker bar (6/24)
Terese Mailhot: Becoming a better ally after the Orlando shooting (6/24)
April Youpee-Roll: Elizabeth Warren owes more to Indian Country (6/24)
Another land-into-trust fix reportedly being drafted in the Senate (6/24)
Federal charges filed in kidnapping of girl on Fort Peck Reservation (6/24)
Non-Indian charged for trespassing at Nambe Pueblo in New Mexico (6/24)
St. Croix Chippewa Tribe warned not to launch marijuana operation (6/24)
Eastern Shawnee Tribe breaks ground on $34M expansion at casino (6/24)
Non-Indian gaming firm loses challenge to law for new tribal casino (6/24)
Grand Ronde Tribes to finish demolition work at site of old racetrack (6/24)
Supreme Court deadlocks in closely-watched tribal jurisdiction case (6/23)
Matthew Fletcher: 'Huge win' for Mississippi Choctaw court system (6/23)
Native American Basketball Invitational draws top talent to Arizona (6/23)
Cheyenne River Sioux Tribe almost done with long-awaited theater (6/23)
Susanville Rancheria thanks lawmakers for help with land-into-trust (6/23)
Senate Committee on Indian Affairs schedules hearing on three bills (6/23)
Supreme Court backs affirmative action policy in long-running case (6/23)
Native Sun News: Senate committee takes on Indian Health Service (6/23)
Mark Trahant: A Republican plan to terminate Indian Health Service (6/23)
James Giago Davies: Welfare for corporations but nothing for tribes (6/23)
Peter d'Errico: Justice Clarence Thomas critiques federal Indian law (6/23)
Two charged for beating and setting woman from Crow Tribe on fire (6/23)
White House defends fracking regulation imposed on Indian lands (6/23)
Mescalero Apache woman hosts fundraiser for Miss United States (6/23)
Standing Rock Sioux Tribe to collect sales tax on entire reservation (6/23)
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.