In this lecture for faculty and students of the University of Arizona's Indigenous Peoples Law and Policy Program, NNI Indigenous Leadership Fellow John Petoskey provides a comprehensive background of the Michigan v. Bay Mills case currently pending before the U.S. Supreme Court and discusses what Native nations can do now to prepare for each of of the case's likeliest outcomes, which are certain to have potentially significant impacts on the scope and functionality of tribal sovereign immunity.
Petoskey, John. "Tribal Sovereign Immunity and the Michigan v. Bay Mills case: What the Future Likely Holds and How Native Nations Should Prepare." Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. October 2, 2013. Interview.
"Hi, my name's Ian Record. I'm Manager of Educational Resources with the Native Nations Institute, and we are here and our honored guest is here in conjunction with a program we run called the Indigenous Leadership Fellows Program. It's a program we established about five years ago. It was designed to do a couple things. First and foremost, ensure that NNI was on the right track with a lot of its research and educational efforts that it does around tribal governance and leadership and nation building, and also give the folks that we invited to serve as fellow the opportunity to come and share their wisdom and experience, and also give them a chance to start sort of taking a step back and sort of taking everything that they've done and figure out what is it that they want to share more broadly with, certainly with Native communities and the general public. So I know some of you were here at our talk yesterday that our Fellow John Petoskey gave and for those of you, welcome back.
I should mention that all of the talks and interviews that our Fellow John Petoskey will be giving this week during his residency will be featured on the Indigenous Governance Database. Some of you received a card for that there, it has the URL on there and so within about three to four weeks we'll have all of these videos up. If you come out of this talk saying, ‘Wow, this is amazing stuff. I really wish other people were here,' you don't really need to fret because you can just send them a link in just a few weeks time. So without further ado, I'd like to introduce our Fellow John Petoskey. John is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and for most of the past three decades has served as the nation's general counsel. And so he's been right there in the middle of a lot of monumental changes that the Band has experienced over the past three decades, regaining federal recognition as a federally recognized tribe, developing a new constitutional government, building up the rule of law to help that constitution system of government function well and achieve the nation's goals. So he's sort of been in the midst of all of that and what he's here to talk about today is a current Supreme Court case called Michigan vs. the Bay Mills Indian Community. A lot of you may know of this case, may already be studying this case in your classes or certainly reading about it. There's been a lot that's been written in the last few weeks and John's here to talk today about that case and its implications for the doctrine of tribal sovereign immunity and what he sees are the likely outcomes, potential likely outcomes of that case, if it is in fact heard by the U.S. Supreme Court in opinions handed down early next year, and what tribes should be thinking about doing depending on what those outcomes are. So without further ado, John Petoskey."
"Thank you. I would like to start with a disclaimer first. I am here as an attorney that is employed by Fredericks, Peebles & Morgan, and that's an Indian law firm. We have about 50 attorneys. We're located in Michigan where I am, Colorado, California, North and South Dakota, Washington D.C. And so the statements that I'm saying have to be taken...I'm trying to make a presentation without being disparaging anybody involved in any of these cases. However, I want to be upfront with the fact that I represented Little Traverse Bay Bands [of Odawa Indians] as an attorney for Fredericks, Peebles & Morgan in the case that is currently before the Supreme Court, although Little Traverse Bay Band has not participated in the appeal because it accepted the Sixth Circuit decision for reasons that I'll explain in more detail.
So in my presentation I am not stating any position for Little Traverse Bay Band, nor am I stating any position for Grand Traverse Band, which is a tribe that I worked for through Fredericks, Peebles & Morgan as their general counsel. I worked for Grand Traverse Band from '86 to 2010 when I was dismissed and I was gone for about two-and-a-half years and then I was rehired as their general counsel about a year ago under Fredericks, Peebles & Morgan. So I represent that tribe as their general counsel through Fredericks, Peebles & Morgan and I want to be clear that there's nothing that I'm saying here that has the official sanction of Little Traverse Bay Band or Grand Traverse Bay Band.
In addition, I also represent other tribes in Michigan that have taken positions on this case, particularly the Nottawaseppi Huron Band of Potawatomi in a related case that I filed pleadings in. Anything I say here does not relate to Nottawaseppi's position that it has taken in that related case. And the discussion that I am presenting is more on an educational basis as a participant in the case that is currently in front of the Supreme Court in the early federal district court proceedings and in the court of appeals proceedings, which forms the basis for the cert petition that was granted for review. After I give you that history of the case and the...I will present what I think are the possible outcomes in the Supreme Court and those outcomes are wide and diverse, but they're indeterminate right now because not all of the briefs have been filed in the court case nor has the oral argument been heard, which will not happen until December 2nd of this year.
So I want to start with giving you the background of the case and the history of Michigan. Michigan has 12 tribes in its state. It has seven tribes that were parties to the 1993 compact. Of those seven tribes, Bay Mills was one of the tribes, Grand Traverse Band was another tribe, then it has two other tribes in what we call the 1836 treaty area that were federally recognized in 1997 by federal statute and those are the Little River Band [of Ottawa Indians] and the Little Traverse Bay Band. Michigan is shaped like a hand and so Little River is right here, Grand Traverse Band is at the end of a peninsula in Traverse City and Grand Traverse Bay. The Little Traverse Bay Band is in Petoskey, Michigan. It's sort of right here. And Bay Mills is in the Upper Peninsula on the Lake Superior shore of White Fish Bay. There's a fifth tribe involved in this case in the related issue and that is the Saulte St. Marie Tribe of Chippewa Indians.
Bay Mills was recognized by treaty in 1855. They had a statute that provided them a reservation in the 1870s and they had an IRA [Indian Reorganization Act] constitution that was provided in 1934 under the Indian Reorganization Act. Saulte St. Marie was recognized administratively by the Secretary of the Interior's delegated authority to the Michigan Agency in the Minneapolis Area Office by administrative written decision in 1975. Grand Traverse Band was recognized under the Federal Recognition Process of 1980 as the first tribe to be federally recognized. LTB [Little Traverse Bay Bands of Odawa Indians] and LRB [Little River Band of Ottawa Indians] as I mentioned were recognized under the 1997 statute. So those five tribes are all signatories to the 1855 Treaty and the 1836 Treaty.
Incident to the 1836 treaty the tribes ceded to the United States a large proportion of the State of Michigan. In the Indian Claims Commission in 1951 the Bay Mills Indian Community, as the only existing federal Indian tribe, filed a claim for unconscionable dealings against the United States when the United States authorized suits against the United States under the ICC. At that time the Northern Michigan Ottawa Association was established, which consisted of LRB, LTB and GTB, which was also a plaintiff's group since the statute the Indian Claims Commission provided that identifiable groups could file claims. I don't want to go into the detailed history of the legal history of Michigan, but essentially what happened was the...in 1871 the Secretary of Interior said that no tribes exist in Michigan and left us there to our own devices, which didn't work out too well. And so that's why there was all this later recognition and the federal statute. That Indian Claims Commission came to judgment in 1971 and then there was a statute passed in 1997 called the Michigan Indian Land Claims Settlement Act, which was the implementation of the payment of the ICC judgment that the five tribes had against the United States. So you can see how this goes back to really the origins of a lot of the tribes. Under that provision, each tribe was allowed to make payments of the judgment funds on 80 percent per capita and 20 percent for social services and each tribe elected to make their payments in identifiable ways that were diverse.
In the case of Bay Mills, they elected to take 20 percent of their ICC judgment funds, which was the Michigan Indian Land Claims Settlement Act, and to create a trust corpus from which the earnings of that trust corpus were to be used to acquire lands and the relevant language in Section 107 of the Michigan Indian Land Claims Settlement Act, which is Public Law 107.143. I don't have the statutory cite, but that's the public law number. The relevant language in that provision provided that money used to buy that land would then be held as Indian lands are held. And so there was a, in the early part of the case, there was numerous briefings on the issue as to what that meant. And Bay Mills argued that that language, as Indian lands are held, creates an automatic restricted fee status for any lands that they buy. And the reason that is important is actually another development that has taken place in Indian Country, and that relates to the Indian Land Claims, the Seneca Land Claims Settlement Act that took place in New York.
In New York, the Senecas have several large casinos. The Seneca Land Claims Settlement Act was used as the basis for arguing, that the Senecas argued that they were not subject to the after-acquired property prohibition of gaming, which is in the Indian Gaming Regulatory Act Section XX that says, ‘Any property acquired or taken into trust after 1988 cannot be used for gaming unless there's these itemized exceptions.' In the Seneca context, that exception was settlement of the land claim. They argued that the Seneca Land Claims Settlement Act, which was an ICC judgment case, was a settlement of a land claims and therefore, they could do gaming, and they did set up a number of different gaming sites. Well, it happened in a federal district court decision in New York in 2008 or 2007 that the federal judge ruled that an ICC judgment is not a settlement of the land claim and therefore the proposition upon which Seneca had predicated the authority to engage in gaming was taken away since the court ruled that the ICC was not a settlement of the land claim.
At that point, the Secretary of the Interior and the National Indian Gaming Commission revised regulations that had already been published in which they implemented Section XX of the Indian Gaming Regulatory Act. I may bounce between Section XX and 2719. 2719 is the codification of Section XX. The regulations that they implemented were federal regulations that included the prohibition that restricted fee applied to the exceptions. In other words, not only was land taken into trust, but also restricted fee, that anybody that had restricted fee after 1988 could not game on that property. After that Seneca decision in 2007, the National Indian Gaming Commission, in conjunction with the Department of Interior, revised its opinion and said that restricted Indian lands were not subject to Section XX since it was not in the statement of the language of Section XX nor was it in the legislative history. And therefore the Seneca facilities, which were restricted Indian titles incident to their unique history in New York, were therefore lawful and that's the basis upon which they continue to game that it's restricted fee title and the net effect of that revision of the federal regulations was that the decision finding that the settlement of the land claims was not applicable was obviated because there was a different basis upon which the Senecas could game.
At that point, this is hypothetical, but I just assume it occurred to somebody in Michigan that we could use the Michigan Indian Land Claims Settlement Act to say, ‘As Indian lands are held as creating automatic restricted Indian title and therefore not subject to Section XX and therefore eligible for gaming without going through the Section XX process of taking the land into trust.' That was the thought process. That's the hypothetical thought process that Bay Mills probably had. And the way I say probably had is because they did submit to the National Indian Gaming Commission a proposed amendment to their ordinance in early 2010, in the Spring of 2010, in which they made geographic specific authorization under the restricted fee theory for gaming at Vanderbilt, the area in which they did open up the casino. Just a footnote, Vanderbilt is in the gaming area for Little Traverse Bay Band, it's basically in their backyard, it's on a major highway, freeway and so it was basically going to choke off Little Traverse Bay Bands' casino patronage.
The National Indian Gaming Commission advised Bay Mills not through a letter document, but through discovery where we determined that they would not authorize an amendment to their gaming ordinance that was geographic specific to Vanderbilt. And so Bay Mills withdrew that proposed amendment, submitted a new amendment, which tracked the language of the Indian Gaming Regulatory Act 2703.4, which essentially is the same language that is used in the Indian Country definition in Title 18 or 1151, which the National Indian Gaming Commission accepted as appropriate because there's no way that they could not accept it because that's what the Indian Gaming Regulatory Act said, but that amendment did allow gaming on restricted Indian land.
So after the National Indian Gaming Commission approved that amendment on September 15th, Bay Mills on their reservation authorized gaming to take place at Vanderbilt. And surreptitiously, in the dead of night, set up a casino in Vanderbilt on a rest stop that they had bought earlier through an LLC company with proceeds from the Michigan Indian Land Claims Settlement Act, alleged proceeds from the Michigan Indian Land Claims Settlement Act, and they asserted that the act of buying that property automatically converted that building into restricted Indian title not subject to Section XX of the general prohibition on gaming on after-acquired land and that their gaming ordinance did authorize gaming under the 'Indian Lands' definition. So they opened their facility. Naturally that action caught Little Traverse Bay Band, Fredericks, Peebles & Morgan's client, off guard. It also caught the State of Michigan off guard that they were using this theory and procedure to open up a gaming facility.
Once Little Traverse Bay Band figured out the theory, there was a remedy to seek, and that remedy is in the Indian Gaming Regulatory Act and it's at 25 USC 2710.7.D.A.ii. And I just want to read the language for you on that because it's important to understand what the language says because this is going to, I'm going to make reference to it in the balance of my presentation and if you don't have it in front of you -- I was going to hand it out -- but I will just read it to you.
‘The United States District Court shall have jurisdiction over any cause of action initiated by a state or an Indian tribe to enjoin Class 3 gaming activity located on Indian lands and conducted in violation of any tribal/state compact entered into under Paragraph 3 that is in effect.'
That is the relevant statute that creates federal jurisdiction in the waiver of sovereign immunity under the Indian Gaming Regulatory Act for Little Traverse Bay Band and the State of Michigan to file an injunction action arguing that the restricted fee authorized casino gaming at Vanderbilt is done in violation of the compact. That's the dispute that took place. There was negotiations between the state and the tribe to close the facility, which went nowhere. There were negotiations between Little Traverse Bay Band and the Secretary of the Interior on whether or not this was restricted fee lands, and the Secretary of Interior did issue an opinion on December 20th that it was not restricted fee, that you could not use the Michigan Land Claims Settlement Act to automatically buy land and then to automatically assert that that becomes restricted fee eligible for gaming.
Hillary Thompkins issues a 25-page opinion that, in summary, gave in detail an interpretation of the Michigan Indian Land Claims Settlement Act and an interpretation of the restricted fee issue and opined that the gaming at Vanderbilt was illegal. Then the National Indian Gaming Commission said, ‘Well, if it's not on Indian lands under our statute, we have no jurisdiction so we have no authority to enforce the closure. We have no authority to issue a closure order because it has to be on Indian lands for us to have jurisdiction to close the facility.' So the National Indian Gaming Commission then issued an opinion saying, ‘Based upon the 'Indian Lands' determination of the Department of Interior, we have no authority here because it's not on Indian lands so we can't issue a closure order.' And so what you had was the federal government basically saying, ‘We don't have authority to close the facility so we're not going to close it,' and then in discussions with the U.S. Attorney there was another touch of ambiguity that Vanderbilt created in that the tribe, Bay Mills, is in the Western District. That it just so happened that Vanderbilt, in terms of the district's for the federal district court in Michigan, is in the eastern district and so all of the, 10 of the 12 tribes in Michigan are in the western district.
So the western district of Michigan has several attorneys that are very knowledgeable about federal Indian law and they knew the opinion that Thompkins had issued that it was not restricted Indian lands, but the people who understood it in the western district were arguing, ‘Not our problem, it's in the eastern district,' and the eastern district is in Detroit and they didn't have anybody in Detroit in the U.S. Attorney's office who understood federal Indian law and the eastern district said...I don't know what they said because I didn't have any conversations with them, but they didn't do anything. Vanderbilt was in their district and they did not file any criminal action against the tribe for violation of the Johnson Act or for gaming outside of the compact. They just let the thing set. So in the absence of the United States' failure to do anything based upon the Indian Lands Determination and the National Indian Gaming Commission's assertion that they had no jurisdiction in the western district and the eastern district not doing anything, the State of Michigan and Little Traverse Bay Band decided to do something and that was to use the provision I just read to file an injunction action against Bay Mills arguing that the gaming facility was not on Indian lands and was a violation of the compact. That's the broad setting in the case.
Now getting into the particular counts in the complaint, it's where it gets interesting. In both counts 1, 2 and 3 of both the LTBB complaint and the State of Michigan complaint, we alleged, and when I say we, the state and Traverse, Little Traverse Bay Bands of Odawa Indians alleged that the Vanderbilt facility was not on Indian lands, that it was not restricted fee, which is important for the later decision in the Sixth Circuit Court of Appeals. But we also alleged that the gaming was conducted in violation of the compact, that it was being conducted in violation of a couple different things. One, that the land was not gaming eligible. A second argument we made is that there's a provision within the 1993 compacts called Section 9, which says that for a tribe to open up an off-reservation gaming activity after 1993 it has to enter into a revenue sharing agreement with the other tribes in Michigan. That was not done so we alleged that as a cause of action. But we were relying on the proposition in that 2710.7.D.A.ii provided federal jurisdiction, created the cause of action and did a waiver of sovereign immunity against Bay Mills and that the waiver of sovereign immunity in the cause of action that we were alleging was that this gaming was in violation of the tribal-state gaming compact that Bay Mills had entered into and that Little Traverse Bay Band was a beneficiary of under Section 9 for the revenue sharing agreement. We also alleged federal jurisdiction under 1333 and for Little Traverse Bay Band we alleged federal jurisdiction under 1362. Those references are important for just a minor, but main, depending on how you characterize it, for a later development in the case.
So the hearing was held in March of 2011 after cross motions for summary judgment were entered and at the end of March the federal district judge ruled that he had jurisdiction under 2710.D.7.A.ii and that he was relying on a decision in the 10th Circuit called Mescalero, which was relying on a decision in that federal circuit called Santa Ana Pueblo vs. Kelly. And in that particular case, the New Mexico tribes had negotiated compacts with the governor, the state Supreme Court in New Mexico had ruled that the governor didn't have the authority to negotiate the compacts, and that they were therefore illegal. Some of you from New Mexico may remember this sequence back in 1997. And then the tribes sued alleging that the compacts were still in effect because there was a move to close down the casinos in New Mexico. One of the questions in that case was whether or not there was jurisdiction in the federal court to hear this cause of action and Santa Ana and Mescalero held that there was jurisdiction to determine the validity of the compact.
Paul Maloney, the federal district judge in the Michigan/LTBB vs. Bay Mills Case, relied on Mescalero for the proposition that there is jurisdiction under the Indian Gaming Regulatory Act to enjoin gaming that is not consistent with the compact, that is not in conformity with the compact and he entered an order to that effect. Bay Mills argued that Judge Maloney got it wrong, which he acknowledged in an amended opinion, that Section 1331, in the early part of the opinion, he also said that 1331 provided jurisdiction and that 1362 provided jurisdiction. Both do provide jurisdiction, but they do not provide a waiver of immunity of Bay Mills. And so he amended his opinion saying there was no waiver under 1331 or no waiver under 1362, but there was a waiver under 2710.D.7.A.ii on the language that I read and that there was a cause of action created and that Bay Mills had violated the compact.
Now Bay Mills makes much of the case, which has merit to it that the Mescalero opinion confused the standards in compact abrogation with compact waivers. The opinion in the 10th Circuit said to the effect that a tribe impliedly waives its immunity when it enters into gaming under the Indian Gaming Regulatory Act. That's not the standard. The tribe doesn't impliedly waive, it's Congress [that] has to abrogate the immunity. Nevertheless, the opinion supporting Mescalero, the Santa Ana Pueblo opinion, does hold for the proposition that there is jurisdiction to determine if the compact is in effect and we were arguing a related concept to that that the compact in Michigan had been violated and that this gaming was taking place in violation of the compact. It eventually...the case went to..."
"We have some people in here who are not law students. Can you explain to them what sovereign immunity is?"
"Sovereign immunity is that the government -- whether it's federal, state or tribal -- cannot be sued without its consent and that consent comes in two forms in reference to Indian tribes. It comes in the form of Congress doing what's called a congressional abrogation by statutorily saying that the immunity of the tribe is abrogated by an act of Congress. The other way sovereign immunity can be dealt with is by the tribe making an explicit clear statement that it is waiving its immunity for purposes of litigation and tribes do do that all the time. They pass resolutions saying, ‘We're waiving our sovereign immunity for x, y and z for the purpose of a, b and c.' But there's two ways and there are two sets of cases that interpret what is abrogation, when Congress acts and sets standards that you have to act clearly, it has to be explicit, it can't be implied. Congress clearly has to establish saying, ‘We are waiving the immunity of the tribe for purposes of the following area.'
Congress waived the immunity of tribes in the Indian Gaming Regulatory Act in the provision I read where it says, ‘Any cause any initiated by a 'state' (Michigan), ‘Indian tribe' (Little Traverse Bay Band), ‘to enjoin Class 3 gaming activity,' (the injunction was again Bay Mills gaming activity), ‘located on Indian lands,' (Bay Mills alleges they're Indian lands, the United States through Thompkin's opinion says it's not Indian lands and the State of Michigan and LTB says it's not Indian lands, that the restricted fee, automatic restricted fee doesn't create Indian lands under the Michigan Indian Claims Settlement Act). But I want to emphasize that issue has not been even litigated or determined by cross motions for summary judgment. That's still a pending motion. That's still in the case because this case went up on interlocutory appeal on the issue of the injunction. So continue to read that -- ‘located on Indian lands and conducted in violation of any tribal/state compact' (and so we're saying, ‘Well, this is in...LTB is saying it's in violation of state compact because it's not on Indian lands and it doesn't comply with Section 9 on the revenue sharing agreement.') ‘Entered into under Paragraph 3 that is in effect,' (and Paragraph 3 is the provisions that define how the state and the tribe enter into tribal/state gaming compacts and the question is, ‘Is the compact in effect?') That was the issue in Santa Clara is that, was the compact...that was the issue in Santa Ana: is the compact still in effect? And the court in Santa Ana determined that it had jurisdiction to determine whether or not the compact was in effect and we argued the corollary concept or related concept that the court has jurisdiction to determine whether the compact is being breached or violated. We argued it was being breached and violated by gaming in areas that were not Indian lands, 4C, and also gaming was taking place without the condition preceding of the revenue-sharing agreement.
Bay Mills, on the other hand, was arguing that if you look at the allegations and the complaints of the state and the tribe, they are alleging that the gaming is not taking place on Indian lands. So if it's not taking place on Indian lands and you read the complaint and you take the complaint at face value, then they're saying that the court doesn't have jurisdiction to hear the case because it's not on Indian lands. Essentially what the National Indian Gaming Commission said, if it's not on Indian lands, NIGC doesn't have jurisdiction to hear the case. Bay Mills was essentially making the same argument -- that you had to fulfill all of the condition precedence in 27.10.7.D.A.ii in order to have jurisdiction in the federal court for the case to proceed and to have a waiver of sovereign immunity. And if it wasn't on Indian lands, even though you have the irony of the situation that Bay Mills is arguing it's on Indian lands and LTBB [Little Traverse Bay Bands of Odawa Indians] and the state is arguing that it's not on Indian lands, if you look at rules of pleading and you construe the pleading allegations of the tribe LTBB made and you take them at face value, they are saying that the gaming's not on Indian lands, therefore they're not fulfilling all of the condition precedence to have jurisdiction and the waiver of sovereign immunity for the case to proceed. That in a nutshell was the decision of the Court of Appeals, that there was no jurisdiction, there was no waiver, that the cause of action that was alleged by the LTBB and the state was defective because they said it was not on Indian lands.
Now in opposition to that, the state argues that counts 4, 5 and 6 allege that acts occurred, the authorization of the facility at the Bay Mills Reservation to open, those were on Indian lands and that that is part of gaming activity. In order for gaming activity to take place, you have to convene the council, convene the Gaming Commission, issue the license and that activity is taken place on Indian lands and that's part of gaming activity, that's just not card dealing that is gaming activity, it's also regulatory actions that the tribe has taken and that is where the gaming activity took place so it's still on Indian lands. The court didn't accept that for a couple different reasons. One was that the amendment to that complaint came in after the interlocutory appeal had been filed. Keep in mind they filed it in the spring of, the interlocutory appeal, in the Spring of 2011 and the state amended its complaint and made it an ex parte proceeding against the tribal council alleging the authorization taking place on Indian lands in August of 2011 at which time the interlocutory appeal was already in the Sixth Circuit and so the Sixth Circuit in part recognized that those were not part of the proceedings directly in front of them.
So the nutshell of the holding was a remand of the case to the district court to hear counts 4, 5 and 6 and to also deal with the underlying issue of whether or not the Michigan Indian Land Claims Settlement Act in fact creates restricted fee titles by operation of law the way I outlined it at the beginning of the presentation. The State of Michigan upon remand then petitioned the Supreme Court for cert to review the matter arguing two different things in its cert appeal. One, that the Sixth Circuit's reading of 27.10.7.D.A.ii to create the five-condition precedence was incorrect in the sense that, essentially that you could leave out Indian lands and you could focus on whether or not the gaming is in violation of the compact that is in effect. And there's a couple circuits that hold that you can address a compact for...there is a waiver if you're addressing whether or not the question is, is the compact in effect.
Now that cuts against a strong standard in abrogation of tribal sovereign immunity with explicit language, because that is holistic interpretation of the statute saying when you look at the remedial structure of the statute in total there has to be a way to get this issue in front of a federal district court so that the court can address the issue. And so the state is arguing in part that the matter should be addressed by the court, in that it met its burden to meet [27.10.7.D.A.ii] under the provisions of the compact being in effect and other case law in other circuits that have held that the question of whether the compact is in effect is sufficient for purposes of jurisdiction under 27.10. But then the state goes on further and says, ‘Regardless of that, if that is not true, if you find that the 6th Circuit is correct,' and it's a very strict interpretation on what abrogation is and you have to meet all the condition precedence of the five elements, ‘then the United States should review its sovereign immunity doctrine in case law and opine that the scope of sovereign immunity does not extend to certain categorical cases.' And it argues based upon CNL, a 2001 decision, Kiowa, a 1998 decision and Citizen Potawatomi, a 1991 decision, which were the last three principle decisions on sovereign immunity, that the court should adopt a standard that, ‘off-reservation commercial activity is not subject to the protection of sovereign immunity.' That's why the case has, to the degree it has, received significant review by Indian Country is the consequence of that decision, which are numerable, which are quite extensive.
So what we did this morning, Ryan Seelau and myself, the person at the end of the table here, we put together a chart. Once you have this background of things that potentially could happen in this case and what the likely repercussions for the tribe are and how tribes should consider responding at this point in time. Keep in mind that this, when I say this point in time, the Bay Mills responsive brief has still not been filed, it will not be filed until October 24. The brief for the state was only filed on August 30, actually September 4. They were four days late, but it was filed on September 4. There were 17 attorney generals filed briefs in support of the State of Michigan and the briefs in support argue that the Supreme Court should simply abolish sovereign immunity and they go to the extreme.
There's one brief in particular, the brief of Oklahoma, that has a footnote in it, footnote number four, that highlights all of the problems that are associated with sovereign immunity defense by tribes and basically this is the tax cases, the payday lending cases, and then there are three other cases in the country that have restrictive fee type cases also. There's the Hobie case in Oklahoma, the PCI case in Alabama and then Saulte St. Marie, getting back to Nottawaseppi, Saulte St. Marie has also asserted that they can create an off reservation casino in Lansing, which is the state capital of Michigan. They have an option on land and they are presently in the process of trying to put that land into trust, arguing that once it goes into trust under the Michigan Indian Land Claims Settlement Act that it then becomes gaming eligible and they would be allowed to do gaming. It's a related case.
And so the state's briefing chief is all this parade of horribles and they're arguing first that Judge Kethledge on the Sixth Circuit, who wrote the opinion, got the interpretation wrong on 27.10.7.D.A.ii that you had to fulfill all of the five requirements and that the pleadings did not fulfill the requirement of on Indian lands and therefore Kethledge dismissed the case. The state is arguing that Kethledge is wrong on that, that you can read 27.10 in an expansive manner on whether or not the compact is being complied with and if the compact is being breached, that is sufficient for purposes of the waiver of sovereign immunity in federal jurisdiction and that argument of the state is predicated upon a holistic reading of the statute.
Now that is contrary to the general proposition that most Indian advocates have that there should be explicitness in the abrogation language for taking the sovereign immunity away from the tribe. In fact, that was the rationale for Little Traverse Bay Band, who is our client in the case, not to appeal the 6th Circuit decision because if you read the decision, it sets up a very strong restatement in standard that in order for Congress to abrogate sovereign immunity, it has to be explicit and every element has to be met. And so the LTBB tribal council said, ‘That's not bad. Although we lost, that's not bad,' and so they didn't appeal and they are not in the Supreme Court and they're not taking a position because they in fact thought the Sixth Circuit decision, even though it went against them, was not a bad decision. There's a caveat to that. The state had indicated in the course of the proceedings that if Bay Mills did open up their facility once the injunction was vacated that the state would do a criminal action and would do a forcible closure. So the casino has never really opened back up even thought he injunction has been vacated. LTBB has not appealed because they thought Kethledge got it right. The State of Michigan has appealed because they thought Kethledge got it wrong, that you should read the statute as expansive and that it does provide for a waiver of immunity and the statement of a cause of action on the basis of the analysis of whether or not the compact has been breached.
Then the position of the Solicitor General -- who I have not mentioned at all in this proceeding -- but the Solicitor General was invited to file a brief and the position of the Solicitor General was is that Kethledge got it right, in terms of what is an abrogation of immunity, and therefore it should not be appealed. But it puts the state in an awkward position because it still has no remedy and when you read the state's brief, you can attack it for many different things, but it does present a good argument in terms of the state saying, ‘What are we to do because this casino opened up in our jurisdiction, we have to have some sort of remedy,' and they touch all of the buttons that the parade of horribles that have been identified in CNL, Kiowa, and Citizen Potawatomi over the last 20 years about the terrible things that happen when tribes assert sovereign immunity in the context of off-reservation commercial activity. And this is a principle example of a tribe doing that: opening a gaming facility where you have the illogical consequence that the state only has jurisdiction to enforce a breach of the compact when the gaming facility is opened on the reservation and it doesn't have jurisdiction when the casino is opened off the reservation hundreds of miles away from the tribe's reservation and it has no remedy and the United States is not doing anything to address the question. And so it has a very compelling, if you will, case to make that there has to be some sort of remedy. And if you're Justice Thomas certainly, Justice Scalia, Ginsberg, and to a certain extend even Breyer, you're going to be sympathetic to those arguments because they've already indicated in previous opinions that they are sympathetic to those arguments, and so you know that for the justices, based upon that past opinion, are sympathetic to the state's position. There are new justices on the bench, but it only takes five to create a bad case decision from the current case that is pending.
So what has been going on to resolve the issue? On a national basis, NCAI [National Congress of American Indians] and the Native American Rights Fund have met and tried to fashion a remedy similar to a remedy that was done in 2010 when there was a similar case in front of the Supreme Court and to resolve that case, the tribe waived its immunity and so the matter was vacated and it was remanded to the lower court to resolve the issue. Here Bay Mills has categorically stated they are not going to waive their immunity. So it's not going to be resolve on a waiver of immunity and in my view, even if they did waive their immunity, I don't think that the Supreme Court would allow the matter to be vacated and remanded because they would recognize that that was the same procedure that was used in 2010 so they would continue to maintain the case. It's all hypothetical, but in any event, Bay Mills is not waiving its immunity. Another thing that could be done that was suggested in the Solicitor General's brief is that Bay Mills could resubmit their ordinance on a geographic specific area for Vanderbilt to get an Indian lands opinion from the National Indian Gaming Commission, but they're not going to do that. Bay Mills is not going to resubmit its ordinance. It already did that once and had a negative determination so they're not going to do that. Kethledge also said that the United States could resolve the issue by filing criminal actions against the individual tribal council acting in violation of federal gaming laws, particularly the Johnson Act, but the western and eastern district of the United States Attorney's office is not going to do that. There's not even any discussion of that, particularly now since the briefs have been developed and there is an argument that Bay Mills has, that this is a good faith argument that this is restricted Indian lands and therefore by definition, if it is restricted Indian lands, under the Seneca decision it would be gaming eligible, therefore it would not be in violation of the Johnson Act, therefore it would not be in violation of the federal illegal gambling laws. So the eastern and western district of the United States Attorney's office is saying, ‘We're not going to do anything.' So the only alternative left is a decision by the Supreme Court on the outcome of the questions that are presently pending before it.
And so getting back to Ryan's table here: what are the potential outcomes? And we characterized these as sort of a hierarchy of horrors and it goes from the least worst outcome to the worst outcome. So the potential outcome with the least consequence to Indian tribes is that the case is remanded based on statutory interpretation of 1331 and 2710 that the off-reservation gaming site violated the compact. In other words, saying, ‘We are reading 2710 in an expansive manner. You don't have to fulfill all of the elements. It's a violation of the compact. That's sufficient. There's federal jurisdiction. There's a waiver of sovereign immunity and abrogation, negative on that.' It makes waivers by implication rather than by explicitness. The other thing that the remand does is that you get to the merits of the question of whether or not this is restricted fee, does restricted fee exist would be one answer that restricted fee does exist and then there are consequences that flow from that. The alternative is restricted fee does not exist. If it does not exist, then it's not gaming eligible then the thing is closed down and it's all a civil matter. That is you get to the merits of the actual problem. This means the violation of compact is sufficient to complete the requirements of 2710, that an abrogation of sovereign immunity is effective by alleging compact breach for cause of action, reverses the 6th Circuit decision on counts 1 through 3 and the 6th Circuit's five part test of 2710.D.7.A.ii. It was a five-part test that they basically construed that provision and laid out five standards that you have to meet in order to get federal jurisdiction, cause of action, and a waiver of sovereign immunity. So this is -- I know I didn't want to say any editorial comments --but it's beyond me why Bay Mills is moving the ball...this doesn't move the ball along anyplace, it doesn't move the case forward at all even with the least likely outcome. Nothing really goes forward so I don't know why they ended...never mind, I won't go there.
Case's likely repercussions for tribe -– case remanded to be determined on merits whether Public Law 105.143 Section 107.A creates restricted Indian fee, so that's the merits of the question. If it's remanded and you determine the merits of the questions, the repercussions are minimal with regard to sovereign immunity, but if restricted fee exists then the effects depend on how many restrictive Indian fee cases are ongoing in the U.S. This is an interesting question. You really have to know a lot of Indian law for this. The states with restricted fee titles are right now in the universe of Indian Country are relatively limited and those states are Oklahoma, New Mexico, Alaska and New York. If you were to look at Indian titles and you were trying to find out who has restricted fee, you would...the majority of them would appear in Oklahoma, New Mexico, Alaska and New York and that's because of the history of federal Indian law. In Oklahoma, it was the allotment processes and the Civil War and the mass movement of Indians into Oklahoma, that there are some areas in Oklahoma that do have restricted fee and you'd look at the particular statutory history of each individual tribe to determine whether or not there is restricted fee. New Mexico, it's the pueblos that have restricted fee because they were...had fee simple under the Treaty of Guadalupe Hidalgo, through grants through the country of Spain. In Alaska, there's a...which is for all practical purposes there's no market, but it's an interesting case up there because it was the variable public policy of the federal government that created restricted fee up there at various times in trying to figure out how to deal with Alaskan Natives, so there's still a lot of restricted fee in Alaska. New York has restricted fee because of its history as one of the original 13 colonies and California has restricted fee because of its similar history of the Treaty of Guadalupe Hidalgo and the grants from Spain. Arizona may have it, but I'm not that familiar with Arizona. But the whole point is if restricted fee does exist, then it's not subject to Section XX, then that's a gold mine for people that are willing to find the tribes sitting on restricted fee and that's going on right now. That's what the Hobie case is. It's a Muscogee restricted fee allotment located 20 or 40 miles away from the central government in which a town, and you have to look at the Oklahoma Indian Act, but Hobie is that type of case of restricted fee. So is the Alabama case with the Poarch Band [of Creek Indians] finding restricted fee down on the Gulf Coast. And so a favorable decision would be potentially more markets for Indian gaming because restricted Indian fee is not subject to Section XX. The thing there is to wait and see what happens, determine whether tribes have restricted fee.
The next consequence is case is remanded to determine counts four through six, which are the state law counts that are still pending, and that is that the activities of gaming took place on the reservation through the authorization, through the tribe passing a motion to authorize opening a gaming facility at Vanderbilt. The fifth count is the state law count alleging discouragement of all profits, which would mean all the machines and all the income, which is a couple million dollars, and the sixth count is a nuisance count under state law. But those counts are brought against the individuals in the amended complaint that the state filed in August of 2011 in which the executive council members of Bay Mills and the individual gaming commissioners of Bay Mills were sued in their official capacity under individual...under the Ex Parte Young version. Basically, it's implementing Ex Parte Young. The Supreme Court is saying that federal jurisdiction exists and that there's a way around tribal sovereign immunity based on the principles of Ex Parte Young.
And then the likely repercussions to the tribe on that is Stephen's descent in the CPN case, expansion on Santa Clara Pueblo's reference to Ex Parte Young. Take you all the way back to 1978, when Santa Clara was decided there was that subtext that Justice Marshall had, that although the pueblo was immune from suit that the individual council members were not immune from suit and they could be sued under principles of Ex Parte Young, but the important point in that was limited by Marshall further saying that the Bill of Rights implied cause of actions do not exist, that there has to be an explicit statement of the cause of action for habeas corpus. That was the only cause of action that existed under that ruling. So taking you a little further back to 1968 when the Indian Civil Rights Act was passed between 1968 and 1978 when Santa Clara happened, there were literally hundreds, but there were a number of decisions in which tribal members sued under quasi-1983 claims against their tribal officials and had a developing case law in federal court that was similar to 1983. And all of that stopped in '78 when Santa Clara was decided and said that you can't imply a cause of action under the Bill of Rights similar to 1983 for tribal council official action or the individual action of tribal members, but I think that will come back into existence under this new doctrine, it's potential, that's a likely repercussion that will happen. Another likely repercussion is that CNL Enterprise clearly suggested that off-reservation commercial activities is on shaky ground which was the 2001 last sovereign immunity decision and said that off-reservation commercial activity is probably going to be subject to a common law finding that is not covered by the immunity of the tribe. That's the clear trend of Ginsberg's statement of the Kiowa decision in 1998 by Justice Kennedy, that they're going to expand commercial activity off-reservation as categorically not being protected by sovereign immunity, which it is now.
So what do you do to get ready for that outcome? How should tribes consider responding? Get ready for the lawsuit against them by their own citizens. In other words, you're going to be sued by your own citizens. In other words, all that case law from '68 to '78 on tribal 1983 actions will probably now come back into existence. Some people, dissidents in the tribe, will say, ‘Hey, that's all right with me.' Other people will say, ‘Well, it's part and parcel, that's going to be a big problem for the tribes.' But the councils should get ready for suits by their own citizens and non-citizens who will be suing under the Indian Civil Rights on a theory that the ICRA creates implied cause of actions like it did prior to Santa Clara and should prepare.
So what should the council do? It should prepare declaratory injunctive and monetary damage statutes that limit the scope of the remedy. It should pass statutes that say, ‘We author...we waive our immunity for declaratory and injunction actions that violate 1983-like rights of our tribal citizens, but we limit that to prospective relief and no monetary damages.' If you get there before they do it, I think you will survive, but if you don't do it, what will happen is you'll have that decision and then people will jump in court and you won't have the...then you can't enact the statute after the case has already been filed. So you should be proactive and enact these protective statutes that do waive sovereign immunity, but limit the amount of damages. The other thing you should do is write insurance proceeds to cover the new level of risk. Amend existing ordinance to waive immunity for violations of ICRA, but limit the remedies to declaratory and prospective injunctive relief.
On the next scale of hierarchy of horrors that could happen in the decision is that the judges will say that Ex Parte Young-like relief applies to commercial plus off reservation or they could say Ex Parte Young relief applies to commercial plus on-reservation or off-reservation, or they could say, number C, that Ex Parte Young applies to commercial and governmental plus on reservation and off reservation. That would be the worst category going just completely down the line all the way. In this scenario, it is likely the Supreme Court would eliminate sovereign immunity for all on/off-reservation commercial activities and retain sovereign immunity for on reservation governmental activities. I think that's a very likely outcome. I think the Supreme Court will say, ‘We're going to eliminate it for off-reservation commercial activities, but we're going to retain it for on reservation commercial and governmental activities.' That's a likely outcome.
In the next category of things that could happen is number four, whether sovereign immunity is a federal common law doctrine, this gets into who controls federal Indian law, this is in deference to Frank Pommershein's law review articles about whether plenary power is located in Congress or plenary power is located in the court and the point here is that the Supreme Court may assert that it has plenary power to amend its common law and that it doesn't have to wait for Congress to abrogate a statute and they're saying, ‘If Congress is not going to do it, we're going to do it.' The Supreme Court could essentially say, ‘Under common law, we control federal common law, sovereign immunity is a creature of federal common law, therefore we can eliminate it if we want to eliminate it.' And that's in direct opposition to the current rule, is that only Congress can eliminate it under its plenary authority and so that creates plenary authority in the tribal or in the Supreme Court to eliminate this and not through Congress. That would be extreme, but it's possible that that could happen. If the Supreme Court does that, they could eliminate all or any part of the doctrine based on commercial or governmental distinction, off-reservation, on-reservation distinction. In this scenario, it is likely the Supreme Court would eliminate sovereign immunity for all on- or off-reservation commercial activities and retain sovereign immunity for on reservation governmental activities. This is a little more extreme from the Ex Parte Young doctrine because Ex Parte Young assumes that sovereign immunity still applies, but you get around it through the fiction of suing the individuals and the Supreme Court says, ‘Wait a minute, Ex Parte Young doctrinally is for federal law is to be imposed against state officials who are protected by the 11th Amendment. Why are we using the constitutional analysis that doctrinally does not fit to the circumstances of a tribe, which doesn't have the 11th Amendment, which is not part of the constitutional convention? So there's really no reason to go through Ex Parte Young, let's just go to home base and eliminate sovereign immunity and not create the Ex Parte Young exception, which is a fiction to begin with, and it's more of a fiction on a fiction if you're applying a doctrine to a tribe that's not part of the constitutional convention and not protected by the 11th Amendment. Why even go down that street because it's just fiction on fiction?'
So what is the likely repercussions for the tribe? Eliminate sovereign immunity in all contexts including and then the repercussions for the tribe is that general federal statutes, which are numerous, there's probably about 15 general federal statutes that govern the employment relationship. There's for example the Fair Labor Standards Act, the National Labor Relations Act, the Age Discrimination Act, the Equal Employment Opportunity Act -- all of these are general federal statutes that currently do not apply to Indian tribes because they're general federal statutes and they don't specifically identify tribes. I know there is case law out there in which some cases opine that they do apply by implication, but there's other cases that strongly hold these general federal statutes do not apply, but if you eliminate sovereign immunity, that's going to be an impact on these general federal statutes because there's nothing stopping the application then. If there's a general elimination of sovereign immunity, then there's nothing stopping the application of these general federal statutes. And then the elimination of general sovereign immunity again would create the Bill of Rights cause of action, so the 1983 actions for tribal government activities. And then the elimination of sovereign immunity will create leverage relationships. It will change the power dynamic between tribes and the state. The tribes' leverage will dramatically decrease, the state's leverage will dramatically increase and this will impact gaming compact negotiations, negotiations or cases related to tax, tobacco, gasoline, sales, use and income, payday lending, gaming, and other cross-governmental relationships that tribes have with states where sovereign immunity is one of the elements in the leverage matrix between the negotiating parties. If it's eliminated, the leverage matrix is gone, and the balance of power tips in favor of the state dramatically.
So what do you do to get ready? Well, you draft statutes mainly. You draft tribal statutes and those tribal statutes would get to that state before the Supreme Court says that new world of Indian law exists and those tribal statutes would waive immunity for contracts towards and like I said earlier limit the scope of the remedy. Those statutes already exist. Some tribes, the tribe I work for, Grand Traverse Band, has already done that. It has...not because of these cases, but because of other relations, we have a general contract waiver statute, we have a waiver of immunity for tort cases, but we limit the scope of the remedy to expectancy damages on contracts, we eliminate consequential damages, under tort we provide for compensation and for pain and suffering at 1.5 of the actual physical damages that the individual suffered on the tort. So there is a remedy there and what is more important, that remedy is subject to a determination by an actuarial entity, an insurance agent, to measure the scope of the risk so we can buy insurance to cover the scope of that risk. And in our experience, doing that actually lowered our insurance premiums because the scope of the risk was known rather than in a situation where you say, ‘We're going to depend on immunity,' and the insurance was high because the level of the risk was unknown. But I would urge tribes to write statutes that essentially waive immunity and then implement their own tribal remedies for that subject area.
The other area that will be subject to attack is trust funds that various tribes have and the thing that tribes would need to do is basically hire a great trust attorney. You're never going to get at Caroline Kennedy's trust account if you're a creditor of Caroline Kennedy because she has a great trust account with great trust protections. So you need to rewrite trust language to protect the trust accounts of the tribe, which can be done.
Okay, the last -- complete elimination of sovereign immunity of all activities based on federal common law and the courts warrant a judicial power and eliminates common law, create a doctrine sovereign immunity for all on- and off-reservation, all commercial, all governmental activities. Those, in a thumbnail, I hope, is the case. Do you have any questions?"
"What are the chances that you'll have a split on any of these issues, that you won't actually come down with an opinion?"
"I think it's minimal. It's very minimal. Four people have already opined where they're at and it's Roberts has not written in support of Indian tribes of the 10 decisions, and so if you just count heads and count votes that's five."
"Hi. Welcome. I'm sorry I came in late. I was in another meeting. If you go back to the opinion in Kiowa, you'll see that the court's displeasure of that on the doctrine of sovereign immunity. It was a 6-3 decision, but even though the people voted to sustain the doctrine, they expressed great doubts about it."
"Oh, yes, Kennedy did."
"Yeah, Kennedy did. So I think it would be...I think something is going to happen here for sure. The ICRA [Indian Civil Rights Act] action, the ICRA says that no government in the exercise of its power shall do something. So it doesn't apply to actions against individuals in court, and that's how I can see why maybe they want to go ahead and have some sort of cause of action against individuals, but then you have some problems. You have the legislative immunity of the legislature and the tribal councils doing that. And you also have another interesting twist too is that a number of tribes have put the ICRA into their constitutions. So it's not just a federal statute, but it's a tribal constitutional right. So I think this is a significant case like you said."
"Yeah, I agree with you. There is still legislative immunity that you would argue, but most 1983 actions are against executive action implementing some legislation. And all I'm saying is that there's going to be a tribal law 1983 jurisprudence developed if the sovereign immunity is done away with."
"I think so. So you're advocating like a tribal tort claims act."
"Right, a tribal tort claims act because if it's going to happen by judicial common law, the only way you can control that is by tribal statutory law which limits the scope of the remedy. Otherwise you have somebody filing a case seeking a multimillion dollar judgment for an executive action. In the absence of a statute that limits it, there's a stronger argument that it should go to judgment and you can't retroactively legislate once the cat's out of the bag."
"Right. One more little point then. So if sovereign immunity is a judicially created common law doctrine, then what does this do to the immunity of the United States? Do you think the United States is covered because it has a federal tortclaims act?"
"Oh, yes. The United States is covered because of the federal tort claims act. There are interesting doctrinal issues in sovereign immunity that relate to, and I tell the story and I hope you wouldn't mind me saying this, but I'll tell the story in the relationship of Ed DuMont. Ed DuMont was an Assistant Solicitor General. He works for WilmerHale, which is part of the Supreme Court bar. One of the sad things that has developed over Indian law in the last 20 years is that there was a cadre of about 15 Indian lawyers that were Indians that actually had argued in the Supreme Court over the last 40 years, and they had actually made presentations to the Supreme Court on a wide variety of cases.
Now the Supreme Court Bar is controlled by professional litigants who are very good and they typically come out of the Solicitor General's office and then go into Supreme Court practice as their specialized area of practice. Ed DuMont is one of those individuals. He's a nice guy. He's a great guy in fact, very personable, very bright. He did the Seminole case on behalf of the United States as the Solicitor General arguing that Congress had the authority to abrogate the immunity of the State of Florida and that was held not to be valid, that the 11th Amendment was stronger than basically the Indian Commerce Clause and that Congress didn't have the authority to override the 11th Amendment and the remedy of suing the state in the Indian Gaming Regulatory Act was found to be unconstitutional. Ed DuMont also argued the Kiowa case and that was -- Seminole was 1996, Kiowa was 1998 -- and he argued on behalf of the United States for sovereign immunity in the Kiowa case. Now Ed DuMont is arguing on behalf of Saulte St. Marie in a case that Michigan has filed against Saulte St. Marie, which is the parallel case to the Bay Mills case of whether or not restricted fee lands can be created by the Michigan Indian Land Claims Settlement Act.
So just in that one person, you have a person that has taken all of the various positions in sovereign immunity litigation and jurisprudence and going forward in different capacities. I'm not saying that as a criticism. I'm just saying that as a compliment because it gets very complex. It gets very complex to argue sovereign immunity cases when you're arguing Supreme Court cases for states, when you're arguing it for the tribes, and when you're arguing it for the state. And from the import of your question, you're trying to connect, ‘if they do this to the tribes what implication is that going to have for the states?' And I'm certain there are implications, but you would need somebody like Ed DuMont, who has been on both sides of that question to answer something like that."
"I had one follow-up question in terms of this category of how tribes should consider responding. You talked a lot about creating laws and statutes and so forth to sort of get ahead of the game on this and sort of do a lot of the legal infrastructure development work that Grand Traverse has already done. But if any one of these say higher-scale horrors takes place, wouldn't it also behoove tribes to seriously consider a dramatic investment, increasing their investment in their justice systems because you can imagine for instance if a lot of these ICRA cases..."
"...would be heard in tribal court, it's sort of one thing to, as you well know, it's sort of one thing to write the law and ratify it, and quite another actually to live it and enforce it. And that's...you can see a ripple effect in the entire justice system, wouldn't you?"
"I agree. It's an unintended consequence. I don't know if it was intended or unintended, but one consequence would be these 1983 tribal court causes of actions that may be resurrected that were in existence from '68 to '78 that went out of existence with Santa Clara. And if Santa Clara is overruled, then obviously tribal citizens and non-citizens would argue that the overruling of Santa Clara brings back these implied cause of actions in the Indian Civil Rights Act, which are essentially Bill of Rights-causes of actions against executive actions by the tribal executive department."
"So does that mean you predict the extinction of qualified immunity in all of those other forms of immunity, this could be like a floodgates argument where you..."
"Yes, it is a floodgates argument, but as the person in the back said, there's still a lot of other types of immunity. There's legislative immunity, but the jurisprudence that developed from '68 to '78 was stopping executive action by tribal council officers or departments where people alleged that the action was in violation of their civil rights. It's a basic 1983 action."
"Or a Bivens."
"Yeah, a Bivens, yeah, more like Bivens, unknown agents, yeah."
"Any other questions for John?"
"One question is where would these actions be filed? Would they be filed in federal courts or would they be filed in the tribal courts? For example, if the Supreme Court waives tribal sovereign immunity in this case, then 1968 Indian Civil Rights Act...if it goes back to implied cause of action as you say, then where will these actions go? Would it go to federal court or would it go to the tribal courts?"
"I would say National Farmers controls, the exhaustion of tribal remedies first and if you have remedies that are there, you've got a stronger argument too. Exhaustion of tribal remedies is federal common law and that's I would argue and have argued that exhaustion of tribal remedies is something that cannot be waived by the courts or the parties and that the parties are mandated to exhaust the tribal remedies prior to going to tribal court."
"And then you would have a Bivens-type action in federal court as opposed to an RCRA action, but you still have habeas ..."
"Right. So initially I would say tribal court under National Farmers, of exhaustion of tribal court remedies. Remedies are available there. The tribe enacted an ordinance where it had a tribal torte claims act or a tribal civil torte claims act similar to 1983 empowering remedies for breach of civil rights of tribal members but my advice is that the remedies are limited to prospective relief or injunctive relief and not limited to... and monetary damages are excluded. And most courts, whether they're state, tribal or federal recognize that standard because it protects the public treasury of the government, while providing a remedy to the litigant."
"Well, thank you everybody for coming. And as I mentioned, this will be online sooner rather than later, we hope. We also are working, Ryan and myself and John in consultation with some others that are closely following this case to try to essentially turn what John has shared with you today into some sort of written output that we can share with the public. And we're not sure exactly where and when, but given the urgency of this case, we hope to get something out to the public pretty soon. So we'll keep everybody posted on that. So thank you, John."