On Monday, the Supreme Court took up a Sixth Circuit case on federal court authority over a Native American tribe’s off-reservation gaming activity under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. In the proceedings below, the Michigan Attorney General obtained a preliminary injunction barring the operation of an illegal, off-reservation casino by Bay Mills Indian Community, a federally-recognized Indian tribe. (Bay Mills has a reservation in Michigan’s Upper Peninsula and entered into a Tribal-State Compact with Michigan, governed by the IGRA.) The Sixth Circuit vacated that decision. Over the USSG’s objection, the high court granted the State of Michigan’s cert petition and will hear the case next term.
The Sixth Circuit ruled that federal courts lack jurisdiction to enjoin Bay Mills from illegal gaming outside Indian lands, and that Bay Mills was immune from the State’s claims. First, the Sixth Circuit interpreted the IGRA to grant federal courts jurisdiction over IGRA claims only where the gaming activity is located on “Indian lands” (in the words of the statute). In its cert. petition, Michigan urged review on the grounds that, even if the IGRA is so limited, the claims fall within federal question jurisdiction under 28 U.S.C. § 1331, and the IGRA does not displace this general jurisdictional grant.
Second, the Sixth Circuit concluded that the tribe’s sovereign immunity from the suit had not been abrogated by statute or waived. The court reasoned that, for the same reasons the IGRA does not supply federal jurisdiction – because the parcel at issue is not “Indian lands” – it does not apply to abrogate Bay Mills’ immunity. For both issues, Michigan asserted that the Sixth Circuit’s decision conflicts with decisions from the Ninth and Tenth Circuits. Cert stage briefing is linked here.