ToCasino.net Online Casino

Another Indian casino, Soaring Eagle Casino and Resort, opened in 2006 on the Saginaw Chippewa Indian Reservation in Mount Pleasant, Mich.(Photo: Al Goldis, AP)

Story Highlights

• Court could give states more leeway to sue American Indian tribes
• Michigan Attorney General's Office contends that Bay Mills Indians can't open casino on land tribe bought
• The Bay Mills Indians bought the land about 100 miles south of present casinos

WASHINGTON — A small, shuttered casino in a tiny Michigan town is at the center of a case coming Monday before the U.S. Supreme Court that could redefine when American Indian tribes can be sued and under what conditions.

A decision — if the court makes one — could affect all sorts of commercial activities that tribes do from casino gambling to payday lending and give state governments more leeway to sue Native American groups.

STORY: N.Y. voters OK non-Indian casinos

As it stands now, the federal government can file suit against a tribe, but states are largely barred from doing so unless a tribe has either agreed to waive its sovereign immunity or had it abrogated by Congress.

But the Michigan Attorney General's Office is arguing that immunity shouldn't stop its suit to block the Bay Mills Indian Community from opening a casino outside tribal lands because the federal government has, so far, declined to act.

Otherwise, the state claims the law seems to set up a contradiction in which federal and state authorities govern Indian casinos on tribal lands but are outside their reach off the reservation.

"The sky will not fall if blanket tribal immunity goes away," state lawyers said last week in the case against the tribe, which in 2010 tried to open a casino in Vanderbilt, Mich., a small town about 50 miles south of the Mackinac Bridge.

However, tribes see it differently with worries that a Supreme Court decision could open them up to a flurry of lawsuits discouraging off-reservation activities.

The implications are so great that the National Congress of American Indians — the oldest tribal rights group, representing hundreds of tribes — asked the U.S. Department of the Interior to settle the case before the court hears it.

But the federal government largely has stayed out of the matter, other than declaring the Vanderbilt property — more than 100 miles from the tribe's Upper Peninsula reservation and two casinos in Brimley — not to be "Indian lands" for casino purposes.

In a court brief, the federal government said other means of settling the argument should be available but counseled against any change to sovereign immunity, a policy that furthers tribal "self determination and economic development."

Without the federal government stepping in, tribes are anxious that the court will accept Michigan's argument — more than a dozen other states are in support of the state's position — and reinterpret the immunity doctrine.

"The state is really asking for a deep intrusion into tribal unity. ... You could be sued for anything," said John Dossett, general counsel for the National Congress of American Indians. "The federal government has really kind of punted on this thing when they shouldn't have."

Tribal sovereignty

Even the NCAI considers Bay Mills' move to be a test case of the law. Using interest from a settlement with the United States, the tribe bought the Vanderbilt land.

The tribe — which has long pursued casino sites in the Lower Peninsula, including in Port Huron, Mich., about 60 miles northeast of Detroit — argued that the land should be available for tribal gambling because it was purchased through the proceeds of a land settlement.

The Bay Mills Indian Community, which operates two casinos in Brimley, Mich., wants to open another in Vanderbilt, Mich., about 100 miles south of its home base.(Photo: Robert F. Bukaty, AP)

Under the settlement, interest was to be used "for improvements on tribal land or the consolidation and enhancement of tribal landholdings through purchase or exchange." Any land bought was to be "held as Indian lands are held."

But the U.S. and Michigan deemed the new property not to be "Indian lands" for the purpose of gambling, a fact that has revealed an apparent contradiction in the law: The relevant law controls gambling on reservations, not off of them.

While no one questions the federal government's authority to bring suit, the state's authority is nonexistent under tribal immunity, the tribe argues.

To that, the state says it's nonsensical to think Congress intended to limit gambling on tribal land but not off reservation.

Michigan Solicitor General John Bursch, who will argue the case, said he knows others suggest the issue could be settled through arbitration or alternative means but that tribal immunity would trump any deal reached those ways, too.

"Sovereign immunity by the tribe would bar our ability to enforce any ruling," he said. "We'd be right back where we started."

Balancing rights

Bursch said it wasn't the state's intention to move into the question of tribal immunity, but that the tribe, in defending itself, raised the issue. Now, it appears to be about the only one remaining.

The court could be asked to draw a delicate balance between self-determination in Indian country and the rights of states to regulate their own territories.

Absent an overt congressional directive, the state said in its most recent brief that it saw is no reason for the court to avoid considering the boundaries of immunity — if only to settle contradictory findings in courts across the USA.

Meanwhile, Bay Mills brings a team with it Monday, including Neal Katyal, a former acting U.S. solicitor general with a long history before the high court. Tribal leaders and lawyers didn't return calls seeking comment.

But in its filings to the court, the tribe has argued that Michigan has no right to sue, that the "doctrine of tribal sovereign immunity bars all claims against an unconsenting tribe, regardless of the character and location of the ... conduct."

"As the court has done repeatedly when asked to narrow tribal immunity, it should reject Michigan's position as contrary to longstanding and well-founded precedents," the tribe's lawyers wrote.