"Michigan v. Bay Mills Indian Community Protects the Common Law Doctrine of Tribal Sovereign Immunity."

The Supreme Court ruled yesterday that tribal sovereign immunity barred the state of Michigan’s lawsuit against the Bay Mills Indian Community to enjoin the Community’s arguably off-reservation economic activity.  In a 5-4 decision authored by Justice Kagan, in which Justices Roberts, Kennedy, Breyer, and Sotomayor joined, the Court concluded that the Indian Gaming Regulatory Act’s abrogation of tribal sovereign immunity with respect to Class III gaming activities located on Indian Lands did not extend to the state’s action for injunctive relief against the Community’s off reservation economic activity, and the Court refused the state’s request to revisit and overrule Kiowa Tribe of Okla. v. Manufacturing Technologies Inc., 523 U.S. 751, which recognized tribal sovereign immunity for off-reservation commercial activity.

The case involved a casino development located on tribally owned fee lands in Vanderbilt, Michigan, roughly 100 miles from the Community’s Reservation.  The Community acquired these lands through a congressionally created trust and determined that the lands qualified as Indian lands under the Indian Gaming Regulatory Act, a conclusion not supported by the National Indian Gaming Commission.  The state of Michigan disagreed that the Vanderbilt lands qualified for gaming activities and sued the tribe for violating IGRA and the tribal-state compact by operating a casino off Indian lands.  In response, Bay Mills asserted sovereign immunity and succeeded  in the Sixth Circuit.  Before the Supreme Court, Michigan argued that IGRA abrogates the Community’s immunity from the state’s suit and that, contrary to precedent, tribal immunity should not apply to commercial activities outside Indian territories.  The Court rejected both arguments.

The Court affirms the common law doctrine of tribal sovereign immunity: tribal governance and commercial activities are protected by  a tribe’s immunity, unless it is expressly abrogated by Congress or waived by the tribe.  Next, the Court determines that IGRA does not authorize the state’s law suit.   While IGRA does abrogate tribal immunity with respect to class III gaming located “on Indian lands,” it does not authorize a suit premised on the conclusion that gaming activity is located outside Indian lands.  Importantly, in making this determination, the Court points to the full panoply of tools the state enjoys to enforce its laws against a gaming enterprise within its jurisdiction.  Finally, the Court rejects Michigan’s invitation to overrule Kiowa, which stands for the conclusion that tribal immunity applies to commercial activity outside Indian territories.  The Court explains that a departure from its precedent demands special justifications that Michigan failed to establish here.  Instead, the Court deferred to Congress about whether to abrogate tribal immunity and under what circumstances.

This decision constitutes a significant victory for tribal interests.  For tribes that wish to establish commercial enterprise off reservation lands, the decision certainly warrants a careful review of the enterprise’s factual circumstance as applied to Bay Mills and relevant precedent.  But given the numerous opportunities the Supreme Court has had, and will likely have, to limit or abolish sovereign immunity, tribes should consider ways to protect their interests from future attacks.

The Prairie Island Indian Community joined the states of New York, Connecticut, Vermont and New Jersey and other public interest groups in the successful challenge to the 2010 amendment to the NRC’s Waste Confidence Decision and Temporary Storage Rule.  See New York et al. v. Nuclear Regulatory Com’n, 681 F.3d 471 (D.C. Cir. 2012).  In its decision vacating the Waste Confidence Decision and Temporary Storage Rule, the United States Court of Appeals for the District of Columbia Circuit directed the NRC to consider the possibility that a geologic repository for permanent disposal of spent nuclear fuel might never be built.

Contact: Emily Smolik
952-346-6137
esmolik@webershandwick.com

In dicta, the Bay Mills Court gives tribes reason to carefully consider how it employs sovereign immunity, together with good-governance tools, to protect its interests in state and federal courts. For example, tribes might contemplate carefully crafted waivers of immunity in tribal courts or other forums to provide “a tort victim, or other plaintiff who has not chosen to deal with a tribe, [an] alternative way to obtain relief for off reservation commercial conduct.” In doing so, tribes reduce the risk that a federal court determines that such a circumstance presents the “special justification” necessary to depart from precedent.  Also, tribes should be mindful of tools that states have to enforce laws against conduct arising within a state’s territories, including criminal actions against tribal officials.

Michael Murphy
The Jacobson Law Group
Jacobson, Magnuson, Anderson & Halloran, P.C.
T (651) 644-4710
E-mail:  mmurphy@thejacobsonlawgroup.com
Website:  http://www.thejacobsonlawgroup.com

Joseph F. Halloran
The Jacobson Law Group
Jacobson, Magnuson, Anderson & Halloran, P.C.
T (651) 644-4710
E-mail:  jhalloran@thejacobsonlawgroup.com
Website:  http://www.thejacobsonlawgroup.com

Welch, Minn., Oct. 27, 2014 – The Prairie Island Indian Community today filed an appeal challenging the Nuclear Regulatory Commission’s (NRC) final rule on the Continued Storage of Spent Nuclear Fuel with the United States Court of Appeals for the District of Columbia Circuit.  The Continued Storage Rule and the Generic Environmental Impact Statement were recently approved by the NRC and became effective as of October 20, 2014.

The states of New York, Connecticut and Vermont filed a separate appeal earlier today. In 2012, a coalition of the Prairie Island Indian Community, the states, and several environmental groups won a landmark decision that vacated the NRC’s Waste Confidence Decision and Temporary Storage Rule. In its decision, the Court of Appeals for the District of Columbia Circuit held that spent nuclear fuel “poses a dangerous, long-term health and environmental risk,” and that the NRC “can and must assess the potential environmental effects” of permanent onsite storage.

“The NRC has sidestepped its obligation to our Tribe to do a full and complete analysis of the risks of permanent onsite storage of nuclear waste 600 yards from our nearest residences,” said Tribal Council President Ronald Johnson. “It leaves communities like Prairie Island at considerable risk, exposing us to the vulnerabilities of aging facilities, human error and natural disasters for generations to come.”

“We had hoped that the NRC’s revised rule and environmental impact analysis would remedy the deficiencies identified by the Court of Appeals and reflect an honest, realistic assessment of how indefinite onsite storage might affect future generations,” said Tribal Council President Johnson. “Unfortunately the NRC’s Continued Storage Rule simply provides regulatory cover for the federal government’s ongoing breach of its statutory obligation under the Nuclear Waste Policy Act of 1982 (NWPA) to remove spent nuclear waste to a geologic repository.”

“We are proud to join the states of New York, Connecticut and Vermont in challenging the Continued Storage Rule,” said Tribal Council President Johnson.  “We still hope that the State of Minnesota will follow the lead of its sister states and re-engage in the fight to ensure that the NRC meets its obligations under federal law to assess the public health, safety and environmental risks of indefinite onsite storage.”

Temporary on-site nuclear storage was first approved on Prairie Island in 1994, with the guarantee that the federal government would be required to develop a permanent repository within two decades. “For more than two decades the Prairie Island Indian Community has been waiting for the federal government to uphold its promise and remove on-site nuclear waste that sits just 600 yards from our backyards,” Johnson said. “No other community sits as close to a nuclear site and its waste storage.”  The number of so-called temporary dry cask storage containers at Prairie Island currently totals 36, with a total of 98 casks needed if the nuclear plant operates to the end of its current license in2034.

About the Prairie Island Indian Community

The Prairie Island Indian Community, a federally recognized Indian Nation, is located in southeastern Minnesota along the banks of the Mississippi River, approximately 30 miles from the Twin Cities of Minneapolis and St. Paul. Twin nuclear reactors and 36 large steel nuclear waste storage casks sit just 600 yards from Prairie Island tribal homes. A total of 98 casks could be stranded on Prairie Island indefinitely unless the federal government fulfills its promise to build a permanent storage facility. The only evacuation route off the Prairie Island is frequently blocked by passing trains. The Tribe has been pushing for the removal of the nuclear waste since 1994 when Xcel Energy was first allowed to store the waste near its reservation. On the web: www.prairieisland.org.

The Prairie Island Indian Community joined the states of New York, Connecticut, Vermont and New Jersey and other public interest groups in the successful challenge to the 2010 amendment to the NRC’s Waste Confidence Decision and Temporary Storage Rule.  See New York et al. v. Nuclear Regulatory Com’n, 681 F.3d 471 (D.C. Cir. 2012).  In its decision vacating the Waste Confidence Decision and Temporary Storage Rule, the United States Court of Appeals for the District of Columbia Circuit directed the NRC to consider the possibility that a geologic repository for permanent disposal of spent nuclear fuel might never be built.

Contact: Emily Smolik
952-346-6137
esmolik@webershandwick.com