A faceoff between the state of Michigan and an Upper Peninsula Indian tribe over a proposed casino reached the U.S. Supreme Court Monday. The arguments were about whether tribes are immune from lawsuits for enterprises that take place off of reservation land.
Everyone agreed that the now-shuttered casino in Vanderbilt, 100 miles from the official home of the Bay Mills Indian Community, violates Michigan’s gaming laws. They agreed the state could go in and arrest tribal officials, employees, even customers. That was an issue that seemed to intrigue the justices of the Supreme Court – why didn’t the state simply use its police authority to shut down an illegal casino, instead of filing a federal lawsuit?
John Bursch, Michigan’s solicitor general, argued the case before the Supreme Court.
“If we absolutely had to, the state would probably have to send in the armed State Police and start arresting people, but we want to avoid that at all costs because we want to be respectful as possible to the tribe.”
Bursch says that’s why states like Michigan rely on federal courts to resolve these sorts of conflicts.
“It’s really like a zero-sum game,” he says. “Anytime that you give another sovereign the ability to operate illegally on lands that are under the state’s exclusive jurisdiction and not allow the state to have its full array of remedies, you’ve taken away some of that state’s sovereignty, and that’s a very serious thing.”
Bursch says supporting the tribe in this case would make it harder for states to enforce not only gaming laws, but health, safety and environmental regulations when they are violated by off-reservation tribal enterprises.
The justices questioned the Bay Mills tribe’s attorney about why Congress would pass a law, the Indian Gaming Regulatory Act, to regulate casinos on reservations, but not off them. The response was there are other avenues to resolving disputes between tribes and states, and, regardless, it’s not up to the court to second-guess Congress.
The case is being widely watched. Seventeen states have joined together to file supporting briefs in the case, as have 65 tribes concerned that immunity for all kinds of off-reservation enterprises is at stake depending on how the Supreme Court rules.
The decision could also affect plans for proposed tribal casinos in Lansing, Flint, and Port Huron.
The court’s decision should come down next year.