Peter d'Errico: Challenges to tribal immunity far from accidental

While we wait for the U.S. Supreme Court opinion in the case of Michigan v. Bay Mills Indian Community, it is worthwhile to review the history and context of the key issue: i.e., whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating the Indian Gaming Regulatory Act outside of Indian lands.

A good way to do that review is to read an article in the American University Law Review from August 2013: "It Wasn't An Accident: The Tribal Sovereign Immunity Story," by Professor William Wood. Prof. Wood takes his title from a phrase in a 1998 Supreme Court decision—Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., where the court said the doctrine of tribal sovereign immunity "developed almost by accident."

Though the Supreme Court upheld tribal immunity in the Kiowa case, its opinion went out of the way to explore "considerations [that] might suggest a need to abrogate tribal immunity." As Prof. Wood shows, these "considerations" prompted a number of courts—state and federal—to attack tribal immunity in a variety of subsequent cases. The current appeal by Michigan in its lawsuit against the Bay Mills Indian Community is the latest and perhaps most dangerous of the challenges to the doctrine of tribal immunity.

Before we explore why Prof. Wood says the doctrine of tribal immunity is not an "accident," we may note that the Supreme Court's critique of tribal immunity was also not "accidental."