Opinion: Preparing for outcomes in Supreme Court casino case

The Supreme Court finds that the Indian Gaming Regulatory Act (IGRA) does not explicitly abrogate sovereign immunity, but instead finds that sovereign immunity was implicitly abrogated by Congress or waived by the Bay Mills Indian Community.

In this scenario, the Supreme Court breaks from its long-held precedent that tribal sovereign immunity can be waived only when a tribe explicitly does so, or when Congress explicitly abrogates it. In essence, the Supreme Court would create a new common law test to determine whether a statute or a tribe implicitly waives sovereign immunity. For example, the Court might argue that when reading IGRA in its entirety, it’s clear that the intent of Congress was to eliminate sovereign immunity for all cases that grow out of gaming regardless of whether they did so explicitly or not. Or, alternatively, the Supreme Court might hold that the Bay Mills Indian Community’s actions – opening a gaming facility – is sufficient to indicate that it waived sovereign immunity in the context of gaming.

Just as in Potential Outcome #2, the Supreme Court could distinguish between commercial activities and governmental activities, and it could distinguish between off-reservation activities and on-reservation activities. For instance, if the Supreme Court went down this path, it’s more likely it would find a waiver of immunity in cases where tribal actions occur off-reservation and when those actions involve commercial activities – regardless of the language of relevant Congressional statutes.