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Changes in sovereign immunity for Native American tribes are the responsibility of the U.S. Congress, not state or federal state courts. With that 5-4 ruling, the U.S. Supreme Court rebuffed the challenge in the Bay Mills case on that issue by the State of Michigan and related briefs filed by attorney generals from a number of states, including Okla- homa. That ruling by the U.S. Supreme Court rebuffed efforts by the State of Michigan to take away that provision set in the U.S. Constitution. Dean Luthey, chair of the GableGotwals Native American Law section, said the decision ensures that tribal immunity will continue even though there might be future at- tempts to change that status. The recent 5-4 Supreme Court decision was im- portant because Chief Justice John Roberts vot- ed with Associate Justice Elena Kagan in the major- ity opinion, he said. The justices used the U.S. vs Wheeler case in making that decision. They went through great lengths to explain tribal rights that Native Americans have enjoyed since that deci- sion in 1978. Powerful people at vari- ous levels, business, gov- ernment and individuals, want sovereign immunity reduced even further or eliminated in what was referred to in the past as assimilation into the cul- ture, Luthey said. Some- one would have to as these assimilators about their stand against sover- eignty. Attempts to limit sov- ereign immunity are far from dead, but is it diffi- cult to say where the next challenges will be made. The law is not stagnant. Stare Decisis — a Latin legal phrase that means stands decided — not withstanding, a princi- ple the courts have long used to describe the precedence of prior decisions also is fluid. “The most sig- nificant thing in the opinion is the majority’s use of the U.S. vs Wheeler case to describe tribal sovereignty and how it operates,” Luthey said. “This is important because many lawyers that work in the area and tribal leaders that deal with relations between the tribes and federal government, as well as state leaders regard that case as the high water mark for tribal sover- eignty. “The Supreme Court in U.S. vs Wheeler went to great lengths to trace the sovereignty issue and ex- plain the special type of sovereignty that tribes enjoy.” Michigan’s State Attor- ney General, supported by briefs from attorney generals from other states, put the thrust of the litigation towards the reexamination of sover- eign immunity as it ap- plied off reservation land and involved tribal com- mercial activity. In the Kiowa case the court made it clear the cause of the parameters of sovereign immunity, if they were to be changed, would be changed by the Congress, not the courts. Similarly, in Bay Mills the majority reaffirmed its commitment to the le- gal principle that if sover- eign immunity were to be abrogated, it should be abrogated by Congress and not federal courts and certainly not state courts, he said. The rea- son for sticking to that rule and not changing the time for off reserva- tion was Stare Decisis — it was already decided. “This stuff is impor- tant,” Luthey said. “You have the resurrection of U.S. vs Wheeler and that is very good because it relates to the future sta- tus of tribes. The court is not backing away from the decision and the overarching principle of sovereignty. The Bay Mills and Ki- owa underscore the decisions that are to be made by Congress. “What the State of Michigan did in the Bay Mills case was to attempt through court action to close a tribal casino because it wasn’t on Indian land. It could have been closed for being in violation of state land because it wasn’t on Indian land.” Several avenues existed for preventing gambling and closing the Bay Mills Casino. Assets could have been seized; players and em- ployees prosecuted and sovereign immunity would not have been an issue. Instead, the State of Michigan picked up the immunity issue to get the Supreme Court to limit it, Luthey said. That was by suing the tribe itself for an injunction that a ca- sino cannot be operated because it was not on In- dian land. Using that approach, the tribe was forced to plead sovereign immu- nity as a defense — and they did. The tribe was justified in using that approach, Luthey said. The states lost and it was a setback for them. It was pointed out the tribes got all that money they wanted. That was the gist of the law- suit. “I regard the Supreme Court ruling as a victo- ry for tribes and for the long-held federal policy for recognized tribes be- cause their sovereignty goes back to treaties made before the Civil War,” he said. “In the Bay Mills Case, the deputy solicitor general of the office of the U.S. Supreme Court, in response to a series of questions by Associate Justice Anton Scalia, that the source of sovereignty is ‘in the U.S. Constitution.’ That’s an important statement by the United States.” « Thursday, July 24, 2014 / REGIONAL REPORT 22 South County Leader By Ralph Schaefer Neighbor News [email protected] Sovereign immunity challenged nixed: U.S. Supreme Court rules that Congress, not courts, should make changes LUTHEY
