The U.S. Supreme Court (“Court”) issued a 5-4 decision today in a case with implications for Tribal-State relations and the resolution of disputes under the federal Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (“IGRA”).  The Court in Michigan v. Bay Mills Indian Community[1] found that the sovereign immunity of the Bay Mills Indian Community (“Tribe”) barred a suit filed by the State of Michigan (“Michigan”) to enjoin Class III gaming on the Tribe’s Vanderbilt property, land the Tribe purchased in fee located 100 miles south of its reservation.  In making its decision today, a majority of the Court:

  1. affirmed the Court’s precedent that Indian tribes possess sovereign immunity from suit for commercial activities conducted outside of Indian lands;[2]
  2. affirmed the Court’s precedent that such tribal sovereign immunity can be abrogated only by clear and unequivocal Congressional authorization (or waiver);[3] and
  3. held that IGRA’s provision permitting a state to sue a tribe for Tribal-State Compact violations on “Indian lands”[4] did not waive tribal immunity to state suits for gaming conducted off  Indian lands.[5]

The Court, however, suggested that Michigan could resort to “other mechanisms” – including legal actions against the responsible tribal individuals – to resolve its dispute with the Tribe.



In August 2010, the Bay Mills Indian Community purchased a tract of land near Vanderbilt, Michigan, 100 miles south of its reservation in Michigan’s Upper Peninsula, using money from a federal land claims settlement fund.  According to the settlement, land purchased with the fund “shall be held as Indian lands are held.”[6]  The Tribe opened a casino on the property on November 3, 2010.

The Bay Mills litigation began on December 21, 2010, when Michigan sued the Tribe in federal district court alleging that the Tribe violated its Tribal-State Compact because the Vanderbilt property was not located on “Indian lands”.[7]  The Little Traverse Bay Bands of Odawa Indians (“Little Traverse”) filed a separate suit making similar allegations one day later.  The district court enjoined gaming at the Vanderbilt casino, and the Tribe appealed the injunction to the Court of Appeals for the Sixth Circuit (“Sixth Circuit”).

In its decision issued on August 15, 2012, the Sixth Circuit found as a threshold matter that both Little Traverse and Michigan had shown sufficient injury to sue the Tribe because the casino would likely divert customers from the Little Traverse casino, located 40 miles from Vanderbilt, and in turn diminish payments made by Little Traverse to Michigan.[8]  The Sixth Circuit next considered whether it had subject matter jurisdiction to hear the case and found that neither Michigan nor Little Traverse could sue under IGRA.  The Sixth Circuit reasoned that IGRA would provide a basis for the suit only if the Vanderbilt casino were on Indian lands, which Michigan argued it was not.  Even if the Vanderbilt casino were on Indian lands, as the Tribe  argued it was, the suit could not proceed because the Sixth Circuit could not redress the harm:

As the case comes to us here, a determination whether the Vanderbilt casino is located on Indian lands would be purely advisory; if the Vanderbilt casino is not located on Indian lands, there is no jurisdiction for the plaintiffs’ claims; if the casino is located on Indian lands, its operation does not violate the compact, which means the claims are meritless.  Neither answer would redress the plaintiffs’ alleged injuries.[9]

The Sixth Circuit found that Michigan could sue under federal common law to resolve the question of whether the Vanderbilt casino was located on Indian lands, but such a suit would require the Tribe to waive its sovereign immunity.  Michigan argued that Congress waived the Tribe’s immunity to suit in IGRA and in a criminal statute authorizing federal prosecutions of gambling crimes in Indian country that are based upon state gambling laws.  The Sixth Circuit found that IGRA did not provide a waiver of tribal immunity because Michigan could not show that the Vanderbilt casino was on Indian lands.[10]  The Sixth Circuit also found that the criminal statute did not expressly and unequivocally abrogate tribal immunity and did not authorize Michigan to sue a tribe.  In conclusion, the Sixth Circuit found that Michigan’s remedy was in asking the United States to sue the Tribe.[11]

Michigan filed a petition for a writ of certiorari, asking the Supreme Court to decide two issues: (1) whether a federal court has jurisdiction to enjoin activity that violates IGRA but takes place outside of Indian lands; and (2) whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands.[12]  The Supreme Court granted the petition for a writ of certiorari on June 23, 2013.


In the Opinion of the Court authored by Justice Kagan[13], the Court affirmed the Sixth Circuit’s holding that while IGRA authorizes a state to sue a tribe to enjoin Class III gaming activities located on Indian lands and conducted in violation of a Tribal-State Compact, Michigan’s suit fell outside the scope of this provision because Michigan asserted that the Vanderbilt property was not located on Indian lands.[14]  Michigan had argued that the Sixth Circuit’s decision would result in an anomaly in which tribes could be sued for illegal gambling on Indian lands but not sued for illegal gambling on state lands.  The Court, however, found that whatever anomaly might exist, it was consistent with IGRA’s history and design.[15]  IGRA was enacted, the Court noted, after the Court’s decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), which held that states lacked any regulatory authority over gaming on Indian lands.  The Cabazon decision “left fully intact a State’s regulatory power over tribal gaming outside Indian territory”, and Congress’ enactment of IGRA provided states with a measure of power that they would not otherwise have.  Id. at 11-12.   States might lack the ability to sue a tribe for illegal gaming when the activity occurs off the reservation, the Court stated, but a state has “many other powers over tribal gaming that it does not possess (absent consent) in Indian territory.”[16]  For example, the Court stated, Michigan could either deny a license to Bay Mills for an off-reservation casino or, using the doctrine of Ex Parte Young, sue tribal officials or employees, seeking an order enjoining the defendants from gambling without a license.[17]  If civil remedies were inadequate, the Court said, the state could resort to its criminal law, prosecuting anyone who maintains or even frequents an unlawful gambling establishment, or use any one of a “panoply of tools” that would be sure to “shutter, quickly and permanently, an illegal casino.”[18]  Finally, the Court said, a state could bargain in its negotiations with a tribe for a Tribal-State compact for a waiver of sovereign immunity in such compact for gaming outside Indian lands.

With respect to reversing the Court’s long-standing doctrine that tribes possess tribal sovereign immunity for commercial activities conducted outside of Indian country, the Court found that any such departure from its precedents would require Michigan to show “special justification”.   Michigan, the Court stated, had failed to make this showing, raising only arguments that amounted to “retreads of assertions we have rejected before.”[19]  Only Congress may dispense with tribal sovereign immunity, and it has declined to do so, the Court stated.

In his dissent, Justice Thomas, joined by Justices Scalia, Ginsburg, and Alito[20], stated that deference to Congress and to precedent did not justify upholding the doctrine of tribal sovereign immunity in commercial activities conducted outside of Indian country.[21]  Describing tribal sovereign immunity as “a substantial affront” to states, Thomas argued that the doctrine had aggravated relationships between states and tribes and should be abandoned by the Court.[22]


For the parties in this dispute, the Court’s decision to affirm the Sixth Circuit means Michigan’s suit against Bay Mills cannot and will not proceed.  The Court’s suggestion, however, that Michigan retains jurisdiction over gaming on non-Indian lands and has a “panoply of tools” – including the option of suing tribal officials – means the dispute could continue in another forum if it is not resolved by the parties.  For tribal gaming generally, the Court’s decision may be seen as closing one avenue of litigation for states under IGRA but opening another by encouraging suits against tribal officials and individuals under the doctrine of Ex Parte Young.  Additionally, we expect that states will continue to vigorously advocate for clear waivers of tribal sovereign immunity in Tribal-State compact negotiations.


Alan H. Martin, Practice Group Leader
714.424.2831 (office)

Edward H. Tillinghast, III, Practice Group Leader
212.634.3050 (office)

Todd L. Padnos, Editor
415.774.2938 (office)


[1] Michigan v. Bay Mills Indian Community et al., Case No. 12-515 (May 27, 2014).

[2] See Slip op. at 4-6.

[3] Id. at 5, 7.

[4] Defined in IGRA at 25 U.S.C. § 2703(4) as:

(A) all lands within the limits of any Indian reservation; and

(B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.

[5] See Slip. op. at 8-11.

[6] Michigan Indian Land Claims Settlement Act, Pub. L. No. 105-143 § 107(a)(3).

[7] Tribal-State Compact § 4(H) (“The Tribe shall not conduct any Class III gaming outside of Indian lands”).

[8] Michigan v. Bay Mills Indian Cmty., 695 F.3d 406, 411 (6th Cir. 2012)

[9] Id., at 412.

[10] Id. at 415.

[11] Id. at 416.

[12] State of Michigan v. Bay Mills Indian Cmty., Petition for a Writ of Certiorari

[13] The majority opinion was joined by Justices Roberts, Kennedy, Breyer, and Sotomayor.  Sotomayor filed a concurring opinion.

[14] See Slip op. at 8.

[15] Id. at 11.

[16] Id. at 12.

[17] Id. at 13.  The doctrine of Ex Parte Young allows state officials to be sued for injunctive and declaratory relief for violations of federal law and has been extended to tribal officials in various court decisions. 209 U.S. 123 (1908).

[18] Id.

[19] Id. at 15, 16.

[20] Justices Scalia and Ginsburg also filed dissents.

[21] Dissent, at 1.

[22] Id. at 4-6.