Turtle Talk: Commentary on arguments in Bay Mills casino case

As has become the norm in Indian law arguments, Justice Sotomayor opened with an initial flurry of questions to State’s counsel, a discussion that went on for some time (page 3 line 25 through page 6 line 20). She wondered why the State was the petitioner here when the district court expressly did not include the State in the denial for an injunction against the Vanderbilt casino (it was a motion by the Little Traverse Bay Bands of Odawa Indians instead), a point made by the National Congress of American Indians. The State’s response was fairly weak — the parties (and it turns out, perhaps, the CA6) merely “assum[ed]” the State and LTBB’s claims were consolidated. Moreover, Justice Sotomayor’s questions delayed the State’s wish to proceed directly to a discussion of tribal immunity by several minutes.

Justice Ginsburg further delayed the State (page 5 line 5 through page 8 line 18) by wanting to know why the State did not choose to invoke the dispute resolution mechanism in the 1993 gaming compact with Bay Mills, especially as Justice Kagan later noted the Court had previously held in C&L Enterprises that an arbitration provision can effectuate a waiver of tribal immunity. From page 8 line 19 to page 9 line 7, the Chief Justice wanted to know why the State raised its own immunity when BMIC sued for a declaratory judgment on the merits of the Vanderbilt casino theory. The State’s blithe(?) response was “all roads lead to tribal immunity.”

Justice Sotomayor finally got the argument into important ground by asking about Ex parte Young, which prompted the State to explain why federalism principles justified the procedural posture of this case.