Fletcher Commentary on the Michigan v. Bay Mills Argument

My read of the transcript is below. Same disclaimers as always — I wasn’t there; cold transcripts are treacherous; and, especially, none of this means anything if it isn’t in the majority opinion.

State’s Main Argument

As has become the norm in Indian law arguments, Justice Sotomayor opened with an initial flurry of questions to State’s counsel, a discussion that went on for some time (page 3 line 25 through page 6 line 20). She wondered why the State was the petitioner here when the district court expressly did not include the State in the denial for an injunction against the Vanderbilt casino (it was a motion by the Little Traverse Bay Bands of Odawa Indians instead), a point made by the National Congress of American Indians. The State’s response was fairly weak — the parties (and it turns out, perhaps, the CA6) merely “assum[ed]” the State and LTBB’s claims were consolidated. Moreover, Justice Sotomayor’s questions delayed the State’s wish to proceed directly to a discussion of tribal immunity by several minutes.

Justice Ginsburg further delayed the State (page 5 line 5 through page 8 line 18) by wanting to know why the State did not choose to invoke the dispute resolution mechanism in the 1993 gaming compact with Bay Mills, especially as Justice Kagan later noted the Court had previously held in C&L Enterprises that an arbitration provision can effectuate a waiver of tribal immunity. From page 8 line 19 to page 9 line 7, the Chief Justice wanted to know why the State raised its own immunity when BMIC sued for a declaratory judgment on the merits of the Vanderbilt casino theory. The State’s blithe(?) response was “all roads lead to tribal immunity.”

Justice Sotomayor finally got the argument into important ground by asking about Ex parte Young, which prompted the State to explain why federalism principles justified the procedural posture of this case (page 9 line 8 through page 12 line 15). First, this initial colloquy:

JUSTICE SOTOMAYOR: All roads lead to one issue, I think. If you had gotten a declaratory judgment, they would have had to stop their gaming activity.

MR. BURSCH: No.

JUSTICE SOTOMAYOR: But you wouldn’t have gotten their property; isn’t that what this suit is about, you trying to take over the –the casino?

MR. BURSCH: No, we don’t want to take over the casino. We want to stop illegal gaming on lands subject to Michigan’s exclusive jurisdiction.

JUSTICE SOTOMAYOR: So why not Ex Parte Young?

The State’s answer is quite silly — and what is getting picked up in the newspapers and perhaps some Justices gaoing all the way back to Kiowa itself — if France or Haiti opened a casino in Michigan then the State would be able to sue those foreign nations to get relief, but for some unexplained reason not Indian tribes (page 10 line 17 through page 17 line 21). I don’t believe the State ever explained why Ex parte Young is insufficient to shut down off-reservation gaming under the tribe’s MILSCA theory. The State wants to win by limiting or modifying Kiowa Tribe, rather than win with Ex parte Young (page 17 lines 15-23):

JUSTICE GINSBURG: But once the Congress didn’t respond, the majority opinion in Kiowa –I don’t know whether it’s “Kiowas” or “Kiowa” –said, you know, this is an unfortunate result, but Congress can do something about it. Well, now Congress hasn’t done anything about it, and you are asking this Court essentially to modify the –that precedent.

MR. BURSCH: I am. I mean, I don’t think you need to modify it.

Justice Alito kicked off another almost morbid series of colloquies that bled into the Tribe’s argument time about whether the State could arrest tribal officials, employees, and casino patrons, and prosecute them on page 18 line 9.

A largely irrelevant point to this case, but perhaps more important to the six tribes (including BMIC) now negotiating with the State over class III gaming, the State made a concession:

JUSTICE ALITO: It seems to me if a tribe wants to open a casino and the State has to –it has to have a compact with the State. Isn’t all the bargaining power on the –on the side of the State? So the State says, fine, if you want to do that, you have to waive sovereign immunity.

MR. BURSCH: Well, we had a compact in place in 1993 that limited their casinos so that this wouldn’t happen.

JUSTICE ALITO: Well, I –but I mean, when will –when will this compact expire?

MR. BURSCH: Right. Let me give you a very practical answer to that question. This compact in 1993 had a 20-year term on it. And so it essentially expired at the end of –of November, just a few days ago, although it has an evergreen clause that allows it to continue while the parties try to negotiate a new compact. And As you would imagine, the very first thing Michigan asked for in its proposed amended compact was to waive tribal sovereign immunity to deal with issues like this. And, unsurprisingly, the tribe said: We’re really not interested in that; we kind of like the way the sovereignty issue is preserved in  the existing compact.

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JUSTICE ALITO: So the compact has expired and there’s –so then how can they operate the casino?

MR. BURSCH: Well, it hasn’t expired. Until the parties –

JUSTICE ALITO: Until they reach a new compact, it continues.

MR. BURSCH: Until they reach a new compact, it continues in effect.

Near the end of the State’s time, Justice Sotomayor redirected the argument at least obliquely to an important issue raised by the National Congress of American Indians — why is the NIGC is sitting this one out? (page 22 line 20 to page 24 line 16). Specifically:

JUSTICE SOTOMAYOR: All right. The issue of what constitutes Indian lands is between the Federal government and the Indians pursuant to the land trust settlement, correct?

MR. BURSCH: I disagree with that because –

JUSTICE SOTOMAYOR: Well, I know you do and I know why you do. But –but what defines the lands is the settlement trust, correct?

MR. BURSCH: Federal court interpretation of the Michigan Indian Land Claims Settlement Act, yes, would determine the status of these lands. The reason why it’s not just between the tribe and the Federal government is because Michigan has a huge interest in having lands that aren’t currently under its exclusive sovereign jurisdiction be determined to be  Indian lands –

One wishes Justice Sotomayor had been more direct in her questioning on this point, but the point was made.

Tribe’s Argument

Justice Scalia immediately interrupted Mr. Katyal to ask about the apparent absurdity that the State would have remedies “on Indian lands” but not “on state lands” (page 29 line 17 through page 32 line 4). The answer turned on Puyallup Tribe and whether Congress knew (or should have known) tribes retained immunity from suit off the reservation — they did, it would seem:

JUSTICE SCALIA: Well, you think that rule would apply even when at the time the statute in question was enacted there was no belief that there was tribal immunity on State lands?

MR. KATYAL: Well, Your Honor, I know my friend on the other side has said that. That is just flatly wrong. Puyallup in 1977, Your Honor, precisely said that it involved both on-and off-reservation activity, it was commercial activity, it was fishing, and this Court said that tribal immunity protected against that. So I do think-

JUSTICE SCALIA: I thought that was just on reservation. You think that was off  reservation as well?

MR. KATYAL: It is. At page 167, Your Honor, it says that the injunction was both on and off reservation. And then in Kiowa at page 754 this Court made clear that that’s how it read-

JUSTICE SCALIA: Kiowa was later, of course.

MR. KATYAL: Of course, but I think that Congress in enacting IGRA in 1988 certainly was under the same set of assumptions as this Court in –in the Kiowa –

JUSTICE SCALIA: You think they read Puyallup that closely?

MR. KATYAL: I think it’s several places in Puyallup and certainly that’s what this Court in  Kiowa said.

JUSTICE SCALIA: I see.

Justice Ginsburg returned to the question about the State prosecuting tribal employees and casino patrons, which leads to a lively discussion (page 32 line 5 through page 33 line 17). It seems to me the answer is a good one but probably not for the reasons BMIC is arguing. A state prosecution would allow the defendant (and the tribe) to make the argument about the casino on the merits without state immunity standing in the way; in state court at first but then perhaps in federal court either through SCT plenary review or on habeas.

Where the Tribe might be in trouble is whether Justice Alito asked the question the other Michigan tribes have been asking about BMIC’s (and Soo Tribe’s) legal theory — where is the limiting principle? (page 43 line 18 through page 44 line 2)

JUSTICE ALITO: Yes. So if your –if your client or another tribe just decided to go into the gaming business all over the country and began opening casinos in places that clearly are not Indian lands, you still would have sovereign immunity.

MR. KATYAL: Right. There would be tribal immunity for that. Just as if the blatant casino on Indian lands opened a casino –a tribe opened a casino without a compact, the State  would not have an A2 injunctive remedy. And that’s why there is no anomaly.

United States’ Argument

Ed Kneedler argued for the United States here, and the argument was a delight for law professors like me.

The initial pressure faced from the Court came from the Chief Justice, who asked by the NIGC and Interior hadn’t done anything to shut down the Vanderbilt casino despite noting the casino was illegal (page 54 line 14 to page 55 line 1). The government’s answer:

MR. KNEEDLER: First of all, by –the casino is promptly closed. Whether it would have been a prudent exercise of federal criminal prosecutorial authority or Civil Action under 1955, is committed to the ordinary prosecutorial discretion of the United States Government.

Another question directly raised during the government’s argument was whether the Supreme Court would be in the right if it chooses to limit tribal immunity as a matter of common law 15 years after it pleaded with Congress to do it instead. For Justices Scalia and Breyer the answer resides in the authority of the Court; the government appears to disagree (page 55 line 8 through :

JUSTICE SCALIA: Who made these Indian tribe sovereign, was it Congress?

MR. KNEEDLER: The Constitution.

JUSTICE SCALIA: I mean, you are appealing to, you know, other branches’ determination. Who decided that Indian tribes are sovereign?

MR. KNEEDLER: The Constitution –

JUSTICE SCALIA: Who pronounced them to be sovereign?

MR. KNEEDLER: This Court.

JUSTICE SCALIA: This Court.

MR. KNEEDLER: But –

JUSTICE SCALIA: So I assume that this Court could also determine the scope of their sovereignty.

MR. KNEEDLER: But this Court didn’t do it as a matter of common law. It did it by looking at the Constitution. We have treaties with Indian tribes, we have the —

JUSTICE SCALIA: We do virtually nothing as a matter of common law. We do virtually everything on the basis of the Constitution or statutes. I don’t think that that’s much of an exception.

MR. KNEEDLER: As this Court said, it’s a general proposition that diminishment of tribal sovereignty is for the political branches. The Court said that –

JUSTICE BREYER: Why? Because you are representing the United States. You understand Indian policy. This case has tremendous implications if we follow your approach. It seems to me well beyond anything to do with gaming. My belief is Indian tribes all over the country, operate businesses off the reservation, and businesses all over the country are regulated. And does the State, I guess, in your view does not have the power to enforce the regulation against the Indian tribe.

MR. KNEEDLER: Not against –

JUSTICE BREYER: Not against the tribe itself. Why is that in the Indian tribe’s interest?  And is it a trap for the unwary lawyer? And how is this supposed to work out in your view?

State’s Rebuttal

Whether the Supreme Court should defer to Congress or not came up again in the State’s rebuttal time, with Justice Breyer suggesting the issue had no resolution (a “wash”) (page 61 line 19 through page 62 line 14):

JUSTICE KAGAN: Well, there seems something sort of strange about that, General, because as I read Kiowa, what it was, was an invitation to Congress. It was saying, you know, we have some concerns about this, we’re not sure it makes sense. We are dropping a very broad hint that Congress should change it. And 15 years later, Congress has done nothing. And then to come back 15 years later and to say, you know, Congress didn’t really accept our hint, so we’ll just do it ourselves and make Congress reverse it, wouldn’t you think that that’s a strange procedure to use?

MR. BURSCH: Actually, Justice Kagan, I think that’s the way that the common law works, that the Court does extend invitations to the legislative and executive branches.

JUSTICE SCALIA: Maybe we’ve learned something in 15 years, such as the fact that-

JUSTICE KAGAN: Or that Congress thought that this did make sense.

MR. BURSCH: I think you could draw the conclusion either way.

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