Does Michigan v. Bay Mills Create a Circuit Split with Mescalero v. New Mexico over Whether IGRA Waives Tribal Immunity?

Well, maybe, but it probably doesn’t matter because of State of Michigan’s amended complaint below.

Yesterday the Sixth Circuit held the Indian tribal immunity survives the enactment of the Indian Gaming Regulatory Act for cases in which a non-federal party with standing sues the tribe for alleged violations of the Act. The court criticized the Tenth Circuit’s holding Mescalero Apache Tribe v. New Mexico (PDF) that IGRA does waive tribal immunity:

Mescalero offers virtually no analysis in support of its contrary reading of § 2710(d)(7)(A)(ii)—a point which the State, to its credit, concedes here; and to the extent the opinion does offer any analysis, it mistakenly cites waiver cases rather than abrogation ones. We agree with the Eleventh Circuit, therefore, that Mescalero’s reasoning is “muddled” rather than persuasive.

The CA6 cited the CA11, also critical of the Tenth Circuit’s holding. In Florida v. Seminole Tribe (PDF), the court also criticized the Mescalero holding:

As an initial matter, we find that Mescalero provides no support for the State’s argument. The Mescalero panel, in discussing section 2710(d)(7)(A)(ii), claimed that a majority of courts agree that “IGRA [abrogated] tribal sovereign immunity in the narrow category of cases where compliance with IGRA’s provisions is at issue and where only declaratory or injunctive relief is sought.” 131 F.3d at 1385. In actuality, however, the cases that the panel cited in support of its claim addressed an entirely different matter, to wit: whether a tribe voluntarily waives its own sovereign immunity by engaging in gaming under IGRA. See infra part II.A.2 (discussing tribal waiver of immunity). In light of this absence of supporting authority, we find the Mescalero panel’s claim difficult to credit.

So one circuit has held that IGRA waives tribal immunity, and two circuits expressly disagree with the first circuit. Circuit split, right? Get ready for Michigan v. Bay Mills Indian Community in the Supreme Court?

Well, probably not. If the Tenth Circuit’s decision is so patently wrong (and mind you, it didn’t have the benefit of any other cases upon which to rely), it probably doesn’t matter. If confronted with the same question again, one could predict the Tenth Circuit going the other way. This is why the Supreme Court doesn’t take questions of first impression very often. They like to let things percolate in the lower courts. Whether IGRA waives tribal immunity is still percolating. The Tenth Circuit is looking like an obvious outlier decision that won’t be repeated. I’d guess, if anyone made the effort, that a Supreme Court cert petition would be denied.