Changes in sovereign

immunity for Native

American tribes are the
responsibility of the U.S.
Congress, not state or
federal state courts.
With that 5-4 ruling,
the U.S. Supreme Court
rebuffed the challenge
in the Bay Mills case on
that issue by the State
of Michigan and related
briefs led by attorney
generals from a number
of states, including Okla-
homa.
That ruling by the U.S.
Supreme Court rebuffed
efforts by the State of
Michigan to take away
that provision set in the
U.S. Constitution.
Dean Luthey, chair of
the GableGotwals Native
American Law section,
said the decision ensures
that tribal immunity will
continue even though
there might be future at-
tempts to change that
status.
The recent 5-4 Supreme
Court decision was im-
portant because Chief
Justice John Roberts vot-
ed with Associate Justice
Elena Kagan in the major-
ity opinion, he said. The
justices used the U.S. vs
Wheeler case in making
that decision. They went
through great lengths to
explain tribal rights that
Native Americans have
enjoyed since that deci-
sion in 1978.
Powerful people at vari-
ous levels, business, gov-
ernment and individuals,
want sovereign immunity
reduced even further or
eliminated in what was
referred to in the past as
assimilation into the cul-
ture, Luthey said. Some-
one would have to as
these assimilators about
their stand against sover-
eignty.
Attempts to limit sov-
ereign immunity are far
from dead, but is it dif-
cult to say where the next
challenges will be made.
The law is not stagnant.
Stare Decisis a Latin
legal phrase that means
stands decided not
withstanding, a princi-
ple the courts have long
used to describe
the precedence
of prior decisions
also is uid.
The most sig-
nicant thing in
the opinion is
the majoritys
use of the U.S. vs
Wheeler case to
describe tribal
sovereignty and
how it operates, Luthey
said. This is important
because many lawyers
that work in the area and
tribal leaders that deal
with relations between
the tribes and federal
government, as well as
state leaders regard that
case as the high water
mark for tribal sover-
eignty.
The Supreme Court in
U.S. vs Wheeler went to
great lengths to trace the
sovereignty issue and ex-
plain the special type of
sovereignty that tribes
enjoy.
Michigans State Attor-
ney General, supported
by briefs from attorney
generals from other
states, put the thrust of
the litigation towards the
reexamination of sover-
eign immunity as it ap-
plied off reservation land
and involved tribal com-
mercial activity.
In the Kiowa case the
court made it clear the
cause of the parameters
of sovereign immunity, if
they were to be changed,
would be changed by the
Congress, not the courts.
Similarly, in Bay Mills
the majority reafrmed
its commitment to the le-
gal principle that if sover-
eign immunity were to be
abrogated, it should be
abrogated by Congress
and not federal courts
and certainly not state
courts, he said. The rea-
son for sticking to that
rule and not changing
the time for off reserva-
tion was Stare Decisis
it was already decided.
This stuff is impor-
tant, Luthey said. You
have the resurrection of
U.S. vs Wheeler and that
is very good because it
relates to the future sta-
tus of tribes. The court
is not backing away from
the decision and the
overarching principle of
sovereignty. The
Bay Mills and Ki-
owa underscore
the decisions that
are to be made by
Congress.
What the State
of Michigan did in
the Bay Mills case
was to attempt
through court
action to close a
tribal casino because it
wasnt on Indian land. It
could have been closed
for being in violation
of state land because it
wasnt on Indian land.
Several avenues existed
for preventing gambling
and closing the Bay Mills
Casino.
Assets could have been
seized; players and em-
ployees prosecuted and
sovereign immunity
would not have been an
issue.
Instead, the State of
Michigan picked up the
immunity issue to get the
Supreme Court to limit it,
Luthey said. That was by
suing the tribe itself for
an injunction that a ca-
sino cannot be operated
because it was not on In-
dian land.
Using that approach,
the tribe was forced to
plead sovereign immu-
nity as a defense and
they did.
The tribe was justied
in using that approach,
Luthey said. The states
lost and it was a setback
for them. It was pointed
out the tribes got all that
money they wanted. That
was the gist of the law-
suit.
I regard the Supreme
Court ruling as a victo-
ry for tribes and for the
long-held federal policy
for recognized tribes be-
cause their sovereignty
goes back to treaties
made before the Civil
War, he said. In the Bay
Mills Case, the deputy
solicitor general of the
ofce of the U.S. Supreme
Court, in response to a
series of questions by
Associate Justice Anton
Scalia, that the source of
sovereignty is in the U.S.
Constitution. Thats an
important statement by
the United States.
22 Education
Thursday, July 24, 2014 / REGIONAL REPORT 22 South County Leader
By Ralph Schaefer
Neighbor News
News@SouthCountyLeader.com
Sovereign immunity challenged nixed: U.S. Supreme Court
rules that Congress, not courts, should make changes
LUTHEY