On Tuesday, May 27, the United States Supreme Court issued its long-awaited decision in Michigan v. Bay Mills Indian Community, Case No. 12-515. In a split, 5-4 decision with Justice Kagan writing for the majority, the Court affirmed the continuing existence and vitality of tribal sovereign immunity, rejecting the State’s efforts to substantially limit or altogether abrogate the doctrine. 

The key takeaway from the majority’s opinion is that the Court continues to recognize tribes’ inherent, historical sovereignty, which includes sovereign immunity, to the extent that it has not been “unequivocally” abrogated by Congress or waived by a tribe. See Bay Mills Slip Op. at 7. This immunity applies to suits arising out of on and off-reservation conduct and to suits brought by states as well as private individuals. See id. at 5-6. The Court emphasized that this holding carries on a long line of cases recognizing and affirming tribal sovereign immunity, and that tribes and others have relied on those cases as settled law that should not be lightly disturbed. Id. at 15-16. If there is to be an exception to tribal sovereign immunity for off-reservation commercial conduct, as the State requested, it can come only from Congress, not from the courts. Id. at 20. 

While the overall result in Bay Mills is a good one for tribes – better than many anticipated, in fact – the opinions issued by the Court contain some cautionary notes as well. Justice Kagan’s majority opinion expressly noted that Michigan has a number of options other than a direct lawsuit against the Community to stop the allegedly unlawful, off-reservation gaming operation.Id. at 12. Options that she identified included denial of state gaming licenses, criminal prosecutions under state law for those participating in allegedly unlawful, off-reservation gaming, and, perhaps most disconcertingly, lawsuits against tribal officials seeking to enjoin tribal activities, which Justice Kagan affirmed are not barred by tribal sovereign immunity. See id. at 12-13. This last comment is particularly concerning because Justice Kagan did not indicate that such suits are limited to claims based on violations of federal law; it is therefore possible that would-be plaintiffs will use the Bay Mills decision to contend that they can seek injunctive relief against tribes, through lawsuits against tribal officials, for any alleged violation of federal or state laws. 

Justice Kagan also hinted that the Court’s analysis might have proceeded differently if the State had no other available alternatives to stop the Community’s allegedly unlawful activity, or if a tribe were being sued by someone such as a tort plaintiff (e.g., someone injured in an off-reservation traffic accident with a tribal employee or in a slip-and-fall at an off-reservation, tribally owned facility) who had no other possible remedy against the Tribe. In our view, this emphasizes the need for tribes to seriously consider enacting tribal laws providing some avenue for relief for those allegedly injured by tribal activities. It is much better to offer a right of action in tribal courts, for instance, than to run the risk of creating a case that the Supreme Court might decide exceeds the proper scope of tribal sovereign immunity. 

There is no doubt that the Bay Mills decision represents a victory for tribal interests. But a close reading of Justice Kagan’s majority opinion, not to mention the dissenting opinions of the four justices who would severely limit or altogether abolish tribal immunity, shows that Bay Mills is simply one battle in an ongoing war.