Michigan v. Bay Mills Indian Community
The Supreme Court ruled that Michigan could not sue the Bay Mills Indian Community to shut down a casino the Tribe opened off its reservation, because tribes generally cannot be sued unless Congress or the tribe itself has waived that protection.
The federal gaming law Congress passed lets states sue tribes over illegal casinos built on tribal land, but it says nothing about casinos built elsewhere, so Michigan has to use other tools — like suing tribal officials or its own state licensing and criminal laws — to close the casino.
How it got here: A federal trial court enjoined the casino; the Sixth Circuit vacated, holding tribal immunity barred the suit; Michigan sought review in the Supreme Court.
The Case in Depth
What happened
Michigan and the Bay Mills Indian Community had a compact letting the Tribe run a casino on its reservation but barring gaming elsewhere. In 2010 Bay Mills opened a new casino in Vanderbilt, Michigan, about 125 miles from its reservation, using funds from a federal land trust. The Tribe argued the land counted as Indian land; Michigan disagreed and sued to shut the casino down.
The question before the Court
Could Michigan sue an Indian tribe in federal court to shut down a casino the tribe opened on land outside its reservation?
The Court's answer
No — the Supreme Court ruled that tribal sovereign immunity barred Michigan's lawsuit against Bay Mills. The federal gaming law only lets states sue tribes over illegal casinos built on Indian lands, and Michigan's own complaint said the Vanderbilt casino was outside Indian lands, so that specific permission to sue didn't apply here. Because Congress hadn't clearly stripped away the Tribe's immunity for this situation, and the Tribe hadn't waived it, the suit had to be dismissed.
The Court also refused Michigan's request to abandon its precedent holding that tribes keep immunity even for off-reservation commercial activity, saying that change is up to Congress, not the courts. Michigan isn't left without options, though — it can sue individual tribal officials, deny state gaming licenses, or pursue criminal prosecution to shut the casino down.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
States that want to stop illegal tribal gaming outside reservation land cannot sue the tribe directly in federal court; they must sue individual tribal officials or rely on state licensing and criminal enforcement instead. States negotiating future gaming compacts now have a clear incentive to insist on explicit waivers of tribal immunity if they want a more direct legal remedy.
What changes now
The case is remanded to the lower courts, where Michigan's claims against individual tribal officials (rather than the Tribe itself) may proceed. This is a final decision on the merits of the sovereign-immunity question, though Michigan retains other avenues — state licensing denials, suits against tribal officials, and criminal prosecution — to try to stop the Vanderbilt casino. Michigan could also negotiate a future compact with an explicit waiver of immunity.
What this does not decide
The Court did not decide whether the Vanderbilt property actually counts as Indian land, whether Bay Mills waived its immunity, or how tribal immunity would apply if a plaintiff (like a tort victim) had no alternative way to get relief for off-reservation harm — that question was expressly left open.
Concurrences and dissents
Concurrence — Justice Sotomayor
Justice Sotomayor agreed with the majority but wrote to further explain why history and comity, not just stare decisis, support tribal immunity for off-reservation commercial conduct. She argued tribes have never been treated as foreign sovereigns, that letting states sue tribes while tribes cannot sue states would be an unfair asymmetry, and that tribal commercial enterprises are closely tied to tribal self-sufficiency goals Congress itself promotes.
Dissent — Justice Scalia
Justice Scalia, who had joined the Kiowa decision extending tribal immunity to off-reservation commercial activity, said he now believes Kiowa was wrongly decided and that its problems have worsened over 16 years. He would overrule Kiowa and reverse the judgment rather than leave the fix to Congress.
Dissent — Justice Thomas
Justice Thomas argued Kiowa's extension of tribal immunity to off-reservation commercial activity was substantively unjustified from the start and has caused growing harm to states' ability to enforce their laws against tribal businesses. He rejected the majority's reliance on congressional silence and stare decisis, arguing the Court created this common-law doctrine and should fix its own mistake rather than wait for Congress.
Dissent — Justice Ginsburg
Justice Ginsburg joined Justice Thomas's dissent but added that she also believes the Court has gone too far in expanding states' own sovereign immunity from suit, suggesting neither tribal nor state immunity as currently interpreted will endure.
How the Court got there
The legal reasoning, step by step
- The Court applied the settled baseline rule that Indian tribes possess sovereign immunity from suit as an inherent attribute of their historic sovereignty, and that only Congress can take that immunity away, and only by clearly saying so.
- Because the federal gaming statute (IGRA) allows states to sue tribes only to stop gaming activity happening 'on Indian lands,' and Michigan's own complaint said the casino was outside Indian lands, the statute's specific permission to sue did not cover this case.
- The Court rejected Michigan's argument that the Tribe's on-reservation licensing and oversight of the off-site casino itself counted as the covered 'gaming activity,' reasoning that throughout the statute the phrase refers to the actual gambling, not administrative oversight of it.
- The Court declined to stretch the statute to close what Michigan called an anomaly (letting states sue over on-reservation violations but not off-reservation ones), explaining that Congress addressed only the specific problem before it and courts should not rewrite the law to cover situations Congress didn't address.
- Turning to Michigan's request to abandon the Court's precedent extending tribal immunity to off-reservation commercial activity, the Court applied its usual rule that overturning precedent requires a special justification, and found none: the precedent had been relied upon for years, and Congress had considered and declined to change it.
- Concluding that it is fundamentally Congress's responsibility, not the courts', to decide whether to narrow tribal immunity for commercial conduct off the reservation, the Court declined to create a new exception itself.
Doctrinal impact
Cases affected by this decision
Reaffirms Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc. (523 U.S. 751)
The Court declined to overrule Kiowa, reaffirming that tribal immunity covers off-reservation commercial activity absent congressional action.