Opinion: Supreme Court poses threat to immunity in casino case

The Bay Mills Indian Community case places the doctrine of tribal sovereign immunity directly in the crosshairs of a U.S. Supreme Court that has time and again proven to be unfriendly towards tribes and tribal sovereignty and has demonstrated a strong desire to eat away at the doctrine should the right case come along (Bay Mills appears to fit the bill). For example, in the last three Supreme Court cases dealing with tribal sovereign immunity, several justices have openly disparaged the doctrine, questioning its relevance and utility. Opponents of tribal sovereignty in general -- and the tribal sovereign immunity doctrine in particular -- smell blood in the water, evidenced by the fact that attorneys general from 16 other states have filed briefs in support of the State of Michigan.

Given the facts and legal arguments in the Bay Mills case and the Supreme Court’s seeming eagerness to hack away at tribal sovereign immunity, it comes as no surprise that a growing number of tribes and national Native American advocacy organizations are working feverishly to find a last-minute solution to keep the Court from hearing the case. Some held out hope that the Bay Mills Indian Community – perhaps recognizing the far-reaching impacts that a detrimental ruling could have on all tribes – would change its tune at this late stage and in limited fashion waive its immunity in the case, thus removing the question from the Court’s consideration. However, Bay Mills recently reaffirmed its commitment to having its day in court. Others – notably the National Congress of American Indians and the Native American Rights Fund – have implored the NIGC to reconsider its previous decision and assert jurisdiction over the Bay Mills Indian Community casino, thus rescuing the case from a ruling by the Supreme Court. All signs are that this is extremely unlikely.

Barring any eleventh-hour, unforeseen developments, the Supreme Court will hear the Bay Mills case on December 2nd, with a ruling expected in April 2014. There appears to be broad consensus among federal Indian law scholars that the case likely will be a loser for tribal sovereign immunity. The only question remaining is how big of one.