This morning, the Supreme Court of the United States granted the State of Michigan's petition for a writ of certiorari in Michigan v. Bay Mills Indian Community. This means that the Supreme Court will hear and decide this case sometime in its next term, which begins in October 2013. At least four of the nine Justices must vote to grant a cert petition.
This case involves an effort by the Bay Mills Indian Community to build a small casino in Vanderbilt, Michigan. Another tribe and the State of Michigan sued to enjoin the construction of the casino. The district court agreed, but in August 2012, the US Court of Appeals for the Sixth Circuit disagreed and dissolved an injunction prohibiting Bay Mills from building its casino.
Bay Mills is a federally recognized tribe with a compact with Michigan. Bay Mills used money that it received from a judgment entered in its favor by the Indian Claims Commission to purchase 40 acres of land, more than 100 miles away from its tribal reservation. Both the State and another tribe argued that the establishment of a casino on this land violated IGRA because the casino is not located on "Indian lands."
The Sixth Circuit found that it lacked subject matter jurisdiction over this claim. IGRA grants subject matter jurisdiction to the federal courts in cases brought to enjoin Class III activity on Indian land and conducted in violation of a compact. Because the state argued that the Bay Mills casino is not on Indian land - because it is located on land purchased by the tribe - the Sixth Circuit concluded that IGRA does not grant the federal courts jurisdiction over the state's claim. In the alternative, the state argues that it is questionable whether the casino is located on Indian land - but the Sixth Circuit said that if it decided that point, it would be impermissibly rendering an advisory opinion.
Moreover, the court reasoned that even if the casino is located on Indian land, IGRA only grants jurisdiction to the federal courts in cases where the land itself was acquired under the land-in-trust process, not purchased by the tribe itself.
Finally, the state also brought claims under state law. The Sixth Circuit concluded that Bay Mills' soveriegn immunity precludes those claims. The court concluded that any argument that sovereign immunity had been abrogated by Congress or waived by the tribe was, at best, ambiguous, and that under well established precedent, waivers or abrogations of sovereign immunity as related to Indian tribes must be clear and unambiguous.
The Solicitor General recommended that the Supreme Court deny Michigan's petition, arguing that the law in this area was well settled and that, procedurally, this case was not an appropriate case to resolve any ambiguity in the law. Despite that, the Supreme Court has chosen to hear and decide the case.
Of course, any Supreme Court interpretation of IGRA, the sovereign immunity of tribes, and federal jurisdiction could have wide-ranging implications. This is a case that is worth watching next Term.