Ben Fenner: Conservative justice collides with Indian Country

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.