Michigan v. Bay Mills Indian Community – Oral Argument – December 02, 2013

Media for Michigan v. Bay Mills Indian Community

Audio Transcription for Opinion Announcement – May 27, 2014 in Michigan v. Bay Mills Indian Community

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John G. Roberts, Jr.:

We will hear argument first this morning in Case 12-515, Michigan v. Bay Mills Indian Community.

Mr. Bursch.

John J. Bursch:

Thank you, Mr. Chief Justice, and may it please the Court:

After Bay Mills’ concession on the first question presented, the only issue is whether Bay Mills enjoys blanket immunity from suit when it engages in illegal, off-reservation, commercial conduct.

And the answer is no for at least two reasons.

First, it makes no sense that Congress intended States to have a Federal injunctive remedy for illegal gaming on reservation, but no injunctive remedy if that gaming takes place on land that is subject to the State’s exclusive jurisdiction.

Second, a tribe should not have greater immunity than foreign nations.

There’s no dispute that if France opened up an illegal business in Michigan, casino or otherwise, it would have no blanket immunity.

Sonia Sotomayor:

Counsel, before you go on, could you address the jurisdiction question for me?

I’m not sure why you’re here.

The only injunction that I see was entered on behalf of Little — Little Traverse’s and not on behalf of the State.

And so, the counts that you’re arguing about were added after the injunction was issued.

How do you have jurisdiction to act — to argue someone else’s injunction?

John J. Bursch:

That’s not quite correct, Justice Sotomayor.

Originally, this case was filed as two separate lawsuits.

Michigan was a plaintiff, and then the other tribe was a plaintiff in the separate case.

Those cases were consolidated and then when the motion for injunction was filed, Michigan joined in that motion, filed a brief supporting it and everyone proceeded under the assumption that both the tribe and the State were asking for the injunction.

Sonia Sotomayor:

That, in fact, is not what the district court said.

The district court explicitly said in its order granting the injunction that the State hadn’t filed an injunction, hadn’t intervened and had only filed supporting papers in support of Little Traverse’s case.

I’m a little — I’m very, very confused as I looked at what the district court said.

It explicitly said you weren’t part of the order.

John J. Bursch:

Well, again, they were consolidated cases.

We were supporting the injunction–

Sonia Sotomayor:

I think “ consolidated ” can have two meanings and — and — to be heard together or to be joined together.

I don’t think the district court understood that this was going to be joined together.

Why did it say what it did?

John J. Bursch:

–Well, I think it was everybody’s understanding that these were joined together because the parties were pursuing the exact same issues.

And so then once this went up to the Sixth Circuit, there was no question in the Sixth Circuit’s mind–

Sonia Sotomayor:

So why didn’t you file an injunction — why does your brief say that you filed it only in support of Little Traverse and not on your own behalf?

John J. Bursch:

–Because once the cases were consolidated, and at that point we were even using the same docket entries, there was already a motion on file.

John J. Bursch:

So there was no need to have a second motion.

It was clear to everyone that the State of Michigan and the tribe were both pursuing that injunctive relief together.

And that’s exactly the way the Sixth Circuit treated it.

Sonia Sotomayor:

I’ll ask — I’ll ask your opposition, but I don’t see why the district court would have made the point it did if it believed that it was dealing with both of you as parties.

John J. Bursch:

Well, everyone has proceeded up the chain, including in the Sixth Circuit opinion, on the assumption that it was consolidated, that Michigan was requesting an injunction and, in fact, that kind of a procedural objection has never been raised by anybody, certainly not at the petition stage.

Sonia Sotomayor:

No, but we have to — we have to, if we’re not sure, raise any jurisdictional issue.

John J. Bursch:

Sure.

But I think it was eminently clear to the Sixth Circuit, if you read its opinion–

Sonia Sotomayor:

Well, it wasn’t eminently clear to the district court who entered the order.

John G. Roberts, Jr.:

Is that a jurisdictional objection or a procedural one?

John J. Bursch:

–Your Honor, it’s a procedural objection.

The only jurisdictional question in this case is whether there’s Federal question jurisdiction under 1331, which has been conceded and the United States agrees to that.

And so I’m not going to spend my time on that.

Where I would like to spend my time is on the scope of tribal immunity.

Ruth Bader Ginsburg:

Before you do that, can you tell — tell us why Michigan didn’t resort to the dispute resolution means that the compact provided?

The compact said if there’s a dispute it’ll be decided by arbitration.

Michigan bypassed that.

John J. Bursch:

That’s correct, Justice Ginsburg.

And there were two reasons for that.

The first is that that provision was only discretionary, as we explain in our reply brief.

But even more important, the compact also makes clear that the tribe did not waive its sovereign immunity for purposes of arbitration.

So if we had gone to arbitration and prevailed, if the arbitrator had reached the same result as the Federal government did as to the status of these lands being not Indian lands, then–

Elena Kagan:

I’m sorry.

Could you explain that?

Because I thought that the purpose — that the whole point of the C&L Enterprises case is to say that when a tribe agrees to arbitration, it has waived its sovereign immunity for that purpose in that proceeding.

Are you saying that there was something special in this agreement?

John J. Bursch:

–I am, Justice Kagan, and I’m glad you brought up C&L, because there you had a construction contract where there was invocation of an arbitration remedy and it didn’t specifically preserve tribal immunity.

Here we have the exact opposite.

In the same paragraph 7 of the compact where we have the arbitration provision, the tribe and the State agree that, notwithstanding the arbitration provision, both parties’ sovereign immunity is not waived and that it’s — it’s preserved.

So if we took a successful arbitration judgment and then tried to reduce that to a Federal judgment in court, they would have asserted immunity and we would be in the exact same procedural posture that we are right now, talking about the scope of tribal immunity involving illegal off-reservation gaming.

John G. Roberts, Jr.:

Why — why did — along the same lines, why did you assert sovereign immunity as a defense when the tribe brought a declaratory judgment action concerning the status of those lands?

John J. Bursch:

Because, again, it wouldn’t have done any good for us to stipulate to jurisdiction on the tribe’s claim about the status of the lands, because simply having a declaratory judgment wouldn’t have given us any relief.

We would have had to file a counterclaim for injunctive relief and the tribe, undoubtedly, would have filed or I would have asserted a tribal immunity there as well.

So really, all roads lead to tribal immunity no matter how–

Sonia Sotomayor:

All roads lead to one issue, I think.

If you had gotten a declaratory judgment, they would have had to stop their gaming activity.

John J. Bursch:

–No.

Sonia Sotomayor:

But you wouldn’t have gotten their property; isn’t that what this suit is about, you trying to take over the — the casino?

John J. Bursch:

No, we don’t want to take over the casino.

We want to stop illegal gaming on lands subject to Michigan’s exclusive jurisdiction.

Sonia Sotomayor:

So why not Ex Parte Young?

You point to one or two cases in the lower courts that suggest there not might be Ex Parte Younger jurisdiction, but those cases are distinguishable.

So why not go after just the officials?

John J. Bursch:

Two responses to that, Justice Sotomayor, one kind of a practical consideration and then one a broader federalism principle that I — that I want to emphasize.

The narrow practical point is that Ex Parte Young is an imperfect remedy for lots of reasons, as we express in the brief.

It’s well settled that you can’t get specific performance on the contract, you can’t enforce a State law in Federal court, you can’t get money or seize assets in an Ex Parte Young action.

And that’s why lower courts–

Sonia Sotomayor:

But all you wanted to do was stop them from doing the gaming casino.

John J. Bursch:

–Well, it’s not clear–

Sonia Sotomayor:

You would have gotten that.

John J. Bursch:

–It’s not clear at all to us that we would be able to get that relief based on the lower court holdings.

Now, the bigger sovereignty point is that if a foreign country, if France or Haiti came in and opened the same casino, the State would have the full panoply of remedies available to it.

And it should have those remedies because any additional immunity you give to the tribe when it’s engaging in illegal conduct on lands subject to Michigan’s exclusive jurisdiction, you are necessarily taking away from the sovereign authority of the State of Michigan.

That’s a lesser remedy.

Ruth Bader Ginsburg:

That’s — all that — the enigma that you pointed out, or the anomaly is — is certainly clear.

But what about Kiowa?

This Court seemed to say that the tribe is immune on reservation, off reservation, commercial activity, government activity, it is immune, blanket immunity.

So how can you prevail without having this Court modify Kiowa?

John J. Bursch:

Here’s how, Justice Ginsburg.

Because Kiowa involved a private party plaintiff.

John J. Bursch:

It did not involve a sovereign State.

And this Court has stated repeatedly that States are different.

We are constitutional sovereigns and so we aren’t treated like ordinary business plaintiffs.

In that case, the fact that the plaintiff could not enforce his promissory note did not directly implicate a State police power.

Anthony M. Kennedy:

What’s your best authority — what’s your best case for that proposition?

John J. Bursch:

For the proposition that States are different?

Anthony M. Kennedy:

That — that States have a lesser burden when they’re faced with a sovereign immunity defense?

John J. Bursch:

I wouldn’t say that it’s a lesser burden, but I think you need to analyze this as a zero sum gain.

That when you’re talking about activity taking place on sovereign State land and you’re not allowing the State to have its whole panoply of remedies, that you’ve taken away an attribute of sovereignty that — that would have existed.

Anthony M. Kennedy:

What’s your best case for that?

John J. Bursch:

I would basically just cite all of the cases this Court has decided over the last quarter century involving the ADA, the ADEA where this Court has consistently recognized that States are different.

Sovereigns–

Anthony M. Kennedy:

That’s — that’s a big reading assignment.

[Laughter]

Stephen G. Breyer:

The question is this: Three situations.

I think it’s the same question Justice Kennedy was driving at.

One, France opens up a casino.

John J. Bursch:

–Yes.

Stephen G. Breyer:

Two, California opens up a casino.

John J. Bursch:

Yes.

Stephen G. Breyer:

Three, an Indian tribe opens up a casino, okay?

John J. Bursch:

Correct.

Stephen G. Breyer:

Now, what is it that says that the State where the casino is located can sue France?

What is it that says it can sue California?

All — they all object.

What is it that says it can sue the Indian tribe?

John J. Bursch:

Thank you, Justice Breyer.

And Justice Kennedy, hopefully, this will reduce the reading assignment.

The case that says we can sue France is Alfred Dunhill, which was this Court’s decision that first recognized the commercial distinction for foreign nation immunity.

Now–

Stephen G. Breyer:

Was that a statute or common law?

John J. Bursch:

–That was common law, common law development in Alfred Dunhill.

Now, shortly after that Congress did enact the Foreign Sovereign Immunities Act which essentially codified this Court’s common law rule and once that happens, then the common law developed–

Stephen G. Breyer:

Okay.

California?

John J. Bursch:

–So California, the case is Nevada v. Hall in which this case said that a State’s sovereign immunity from suit does not extend when it’s got actors in another State.

There, Nevada’s agent was acting in California and the Court held that that actor could be liable for suit in California.

Stephen G. Breyer:

Okay.

All those are common law.

Both–

John J. Bursch:

All common law.

Stephen G. Breyer:

–Then what do you do about Kiowa?

John J. Bursch:

Well, that’s the thing.

Kiowa or Kiowa did not involve a State as sovereign.

It involved a private business plaintiff and it’s distinguishable on that basis.

And if you disagree with me and you think that sovereign States should be treated the same way as private party plaintiffs, then we would ask you to overrule that part of Kiowa which suggested that tribes can engage in illegal commercial conduct on land subject to exclusive State jurisdiction without any–

Elena Kagan:

But I think this is what Justice Kennedy was — was getting at when he asked you for a case, because what you’re saying now is that when the State is the plaintiff–

John J. Bursch:

–Yes.

Elena Kagan:

–the sovereign immunity of the tribe disappears, so–

John J. Bursch:

Well, not disappears.

But it — it disappears when they move off reservation and they’re acting in a commercial capacity.

Elena Kagan:

–Okay.

So what — I guess what’s — what’s — what’s the case that would suggest that when the plaintiff shifts the sovereign immunity is — goes away?

John J. Bursch:

This Court’s case that would suggest that is the Oklahoma Tax Commission case, because that was a case where a State, not exercising a police power, but one of its lesser powers, the power of taxation, was attempting to tax cigarettes that were being sold on Indian trust land by a tribe.

And in that case, the Court acknowledged that even on trust lands, so this isn’t on land that’s subject to State exclusive jurisdiction, that the State would be able to tax those cigarettes being sold to non-tribal members.

Stephen G. Breyer:

You know, but the question specifically then — I think we’re driving at the same thing — is, remember, you just cited to me two cases–

John J. Bursch:

Yes.

Stephen G. Breyer:

–one involving France and one involving California.

John J. Bursch:

Yes.

Stephen G. Breyer:

And I had assumed — but maybe I was wrong to assume — that when I read those cases, I will see, although a State can sue France, although Nevada can sue California, a private individual could not.

Stephen G. Breyer:

Am I going to find that when I read those two cases?

John J. Bursch:

Well–

Stephen G. Breyer:

Now I think the answer to Justice Kagan is I’m not going to find it.

So we’re looking for authority, back to Justice Kennedy, that will support your proposition that the State could sue France, Nevada could sue California, but a private individual could not.

John J. Bursch:

–I think the Oklahoma Tax Commission case would be the closest, because even if you have a private individual who was trying to sue a tribe for conduct that was taking place on trust land, they would not be able to do it.

Stephen G. Breyer:

Now, what you’re asking us to do then, if the answer is what I now think you’re saying, is to say it’s awfully complicated that although a State could sue an Indian tribe for something that is outside the reservation, the State — it’s so complicated that I’d like some good authority for it, because a private person couldn’t, but a State could sue and it’s only in certain places.

John J. Bursch:

Well, there — there’s lots of places that you could draw the line in this case.

Stephen G. Breyer:

How about drawing the line with Kiowa?

John J. Bursch:

Here’s what I’m going to suggest.

Nine justices in Kiowa, both the majority and the dissent, recognized that there were substantial issues with applying tribal immunity on or off reservation in the commercial context.

This Court had done away with that for foreign nations in Alfred Dunhill.

It decided to give Congress one more chance in — in Kiowa, but — but left the question open for further common law development.

Ruth Bader Ginsburg:

But once the Congress didn’t respond, the majority opinion in Kiowa — I don’t know whether it’s “ Kiowas ” or “ Kiowa ” — said, you know, this is an unfortunate result, but Congress can do something about it.

Well, now Congress hasn’t done anything about it, and you are asking this Court essentially to modify the — that precedent.

John J. Bursch:

I am.

I mean, I don’t think you need to modify it.

I think you could distinguish it based on the fact that there’s a private party plaintiff there.

But if you feel otherwise that you need to modify it in order to rule in our favor, it’s — it’s totally within your power.

As we explained at length in the context of foreign nation sovereign immunity, it’s a body of common law that this Court is free to modify as appropriate.

Samuel A. Alito, Jr.:

Well, why is the — why is that important?

Why is the issue that you’ve brought before us important?

In addition to the possibility of an Ex Parte Young action, you could certainly arrest people who are running what you believe is an illegal casino in the State, can’t you?

John J. Bursch:

Well, there are — there are at least two reasons why that is also an imperfect remedy.

The most obvious one is that it creates exactly the kind of inter-sovereign conflict that Congress was trying to avoid when it allowed under IGRA for States to get injunctions even for on-reservation conduct.

Samuel A. Alito, Jr.:

But in addition to that, couldn’t you have stopped this before it even started by insisting in the compact that the tribe waive sovereign immunity?

John J. Bursch:

Well, that’s — that’s a great question and the answer to that is twofold.

First, when the compact was negotiated back in 1993, this Court had not decided Kiowa.

That came five years later in 1998.

And so Congress and the States reasonably assumed at that time that if a tribe was engaged in illegal commercial conduct off reservation, that, of course, a State would have the ability–

Samuel A. Alito, Jr.:

Going forward then–

Anthony M. Kennedy:

Why couldn’t you at least — I think this is Justice Alito’s question.

I don’t mean to interrupt.

But why couldn’t you say that it’s a matter of compact interpretation whether these are Indian lands?

John J. Bursch:

–A matter of compact interpretation whether these are Indian lands.

Anthony M. Kennedy:

Right.

So you go to Federal court to interpret the contract.

There’s no — immunity has been waived, and you say these are not Indian lands.

I think that’s what Justice Alito was asking.

I didn’t mean to interrupt him.

John J. Bursch:

I — I didn’t get quite the same question from Justice Alito.

Samuel A. Alito, Jr.:

–Well, that’s a more sophisticated version of my question.

[Laughter]

No.

Seriously, it gets into a more — more difficult issue.

John J. Bursch:

Right.

Well, if I can finish answering Justice Alito’s question.

You asked why we can’t just go in and arrest.

And — and the second answer to that, besides the — the conflict of going in with armed police guards and arresting tribal officials and hauling them off to county jail, which Congress tried to avoid when it enacted IGRA in the first place.

It’s what everybody wanted.

Again, it’s limiting State sovereignty–

Samuel A. Alito, Jr.:

Well, I understand that.

John J. Bursch:

–any time you take out our–

Samuel A. Alito, Jr.:

But going forward, is this of any importance?

Why–

John J. Bursch:

–Oh, this is of tremendous importance.

Samuel A. Alito, Jr.:

–It seems to me if a tribe wants to open a casino and the State has to — it has to have a compact with the State.

Isn’t all the bargaining power on the — on the side of the State?

So the State says, fine, if you want to do that, you have to waive sovereign immunity.

John J. Bursch:

Well, we had a compact in place in 1993 that limited their casinos so that this wouldn’t happen.

Samuel A. Alito, Jr.:

Well, I — but I mean, when will — when will this compact expire?

John J. Bursch:

Right.

Let me give you a very practical answer to that question.

This compact in 1993 had a 20-year term on it.

And so it essentially expired at the end of — of November, just a few days ago, although it has an evergreen clause that allows it to continue while the parties try to negotiate a new compact.

And As you would imagine, the very first thing Michigan asked for in its proposed amended compact was to waive tribal sovereign immunity to deal with issues like this.

And, unsurprisingly, the tribe said: We’re really not interested in that; we kind of like the way the sovereignty issue is preserved in the existing compact.

Now, the question about whether this has an impact beyond tribal gaming, the answer is–

Samuel A. Alito, Jr.:

If I could just pursue that.

John J. Bursch:

–Sure.

Samuel A. Alito, Jr.:

So the compact has expired and there’s — so then how can they operate the casino?

John J. Bursch:

Well, it hasn’t expired.

Until the parties–

Samuel A. Alito, Jr.:

Until they reach a new compact, it continues.

John J. Bursch:

–Until they reach a new compact, it continues in effect.

John G. Roberts, Jr.:

Is the status of the land as Indian lands determined by the compact?

John J. Bursch:

No, it’s not determined by the compact.

It would be determined as a matter of Federal law.

That’s the Federal question in this case.

And–

Sonia Sotomayor:

Could I ask you a question?

Anthony M. Kennedy:

But the compact refers to Indian lands.

Surely, you could take the position that there is a waiver of immunity to determine whether or not these are Indian lands under the compact.

John J. Bursch:

–I don’t think we could, respectfully, Justice Kennedy, because the compact does not envision that the tribe has waived immunity for any purposes.

If you look at Section 7 of the compact, it’s — it’s really unequivocal about the tribe not waiving immunity.

Sonia Sotomayor:

Could I ask you a question?

What — what would happen if this were Indian lands, and they went ahead and did exactly what they did?

They — there was no dispute that these were Indian lands.

Would you have had grounds to object to them building a casino on these lands?

John J. Bursch:

We would not.

Sonia Sotomayor:

You would not.

John J. Bursch:

Correct.

If these are Indian lands, then it’s permissible under IGRA and under the compact for them to have and operate a casino.

Sonia Sotomayor:

All right.

The issue of what constitutes Indian lands is between the Federal government and the Indians pursuant to the land trust settlement, correct?

John J. Bursch:

I disagree with that because–

Sonia Sotomayor:

Well, I know you do and I know why you do.

But — but what defines the lands is the settlement trust, correct?

John J. Bursch:

–Federal court interpretation of the Michigan Indian Land Claims Settlement Act, yes, would determine the status of these lands.

The reason why it’s not just between the tribe and the Federal government is because Michigan has a huge interest in having lands that aren’t currently under its exclusive sovereign jurisdiction be determined to be Indian lands–

Sonia Sotomayor:

Put — put this aside of gambling.

Let’s assume that it was just their buying this land.

John J. Bursch:

–Yes.

Sonia Sotomayor:

Could you have stopped the buying of this land or unravelled it?

Didn’t we have a recent decision that said no?

John J. Bursch:

If you’re referring to the — the Patchak case.

Sonia Sotomayor:

Yes.

John J. Bursch:

In that case, you held that the plaintiff could, quite a bit after the fact, file a lawsuit to unravel that transaction if the lands were not eligible for Indian gaming, if I’m remembering the holding correctly.

And — and Michigan does have a substantial interest, not just in the gaming context.

Sonia Sotomayor:

Well, wouldn’t you have had to follow — if you were going to object to this land being taken into the land trust, wouldn’t you have had to follow the administrative process?

John J. Bursch:

We would, but the land has never been taken in trust.

Even the Federal government, the National Indian Gaming Commission, has concluded that these are not Indian lands for purposes of the Settlement Act.

And so we never got to the point where they got in Patchak, where they went through the administrative process to take the lands in trust.

Elena Kagan:

General, if — if I could assume that this is not Indian lands and just ask why you need for sovereign immunity to go away?

So you have the ability to arrest people.

You have the ability to bring Ex Parte Young actions.

Presumably, you have the ability on non-Indian lands simply to shut down a casino.

Presumably, you have the ability on non-Indian lands to condition any licensing of the casino on whatever you want.

I guess the question is: On non-Indian lands, you have a thousand ways to stop a casino that you don’t want.

Why do you need the abrogation of sovereign immunity?

John J. Bursch:

Because we tried to take the least intrusive means necessary to stop the casino, to not go in with the billy clubs and the guns and to arrest tribal members, but to ask for a Federal civil injunction.

Elena Kagan:

Well, I think that all of our cases suggest that sovereign immunity is quite important to a sovereign’s dignity and that it’s not nothing to abrogate sovereign immunity.

And so you can say, well, you know, that would be less intrusive than all these other things, bringing Ex Parte Young suits, arresting people, just, you know, conditioning the — a license, stopping the casino from operating.

But, you know, I suspect that the sovereign tribe here would say that, no, it’s — it’s an affront to their sovereignty to take — to strip them of sovereign immunity, and — and none of these other options that you have are that.

John J. Bursch:

Right.

But, again, arresting the other sovereign’s officers is, with all respect, not respectful to the tribe, which is why that’s the course we’ve pursued.

And the change we’re asking for here is not as big as the tribe makes it seem, because in IGRA, Section 2710, we have the ability to get an injunction to stop illegal gaming taking place on reservation.

And so it’s really not that big a leap to say if they’re engaging in illegal gaming off reservation, likewise there, we should be able to get the least intrusive remedy, the one that is most respectful of the tribe’s sovereignty.

And frankly, we’re kind of surprised that the United States would take the position that we’re better off going in and arresting or suing individual officers, because that’s not the way sovereigns are supposed to interact.

And it would be a big deal if France opened up a casino in Michigan and rather than seeking a civil injunction, we tried to arrest the French president and throw them in a Michigan County jail.

Samuel A. Alito, Jr.:

I mean, is — is it not correct that the people who work in these casinos are just employees?

They have no other connection with the tribe?

Am I wrong on that?

John J. Bursch:

I believe some of the employees are tribal members, some are not.

And we cite a number of cases in our reply brief where tribal immunity has been extended to tribal employees whether they are members of the tribe or not.

John G. Roberts, Jr.:

Can you prosecute people who frequent this illegal casino?

John J. Bursch:

Michigan citizens?

John G. Roberts, Jr.:

Yes.

John J. Bursch:

Yes, we could do that.

But again, I want you to understand the scope of the invasion of the State’s sovereignty here.

If any other entity, foreign nation, another State, an individual, set up an illegal business, whether it’s prostitution, underage drinking, gaming, you name it, we would have the full panoply of State civil and criminal regulatory remedies available to us and could pick the most appropriate one.

And somehow because this is a tribe, even though they are operating on Michigan’s land where we have exclusive regulatory jurisdiction, somehow all those remedies are circumscribed to imperfect remedies like Ex parte Young, which may or may not be successful, or arresting our own citizens, and that’s not respecting the constitutional sovereign that Michigan represents in this case.

And to get back to a question a number of you had about the implications of this aside from gaming, this happens in all kinds of other contexts off reservation.

You just had a case in 2011 involving the Oneida tribe in New York where they failed to pay their property taxes in New York.

So the State moved in to foreclose for nonpayment of taxes those off-reservation properties.

And the Second Circuit, interpreting Kiowa, reluctantly concluded that the State did not have ability to enforce by foreclosing on that property because the tribe had immunity and invited this Court to review Kiowa.

This Court granted cert. Eventually cert was dismissed because the tribe waived immunity and they were able to go forward and pursue that remedy.

But whether it’s in the tax context, whether it’s the gaming context, whether it’s the criminal context — you know, the amici briefs of Oklahoma and Alabama are replete with the issues that they are having as sovereigns in running up against the tribal sovereign immunity when it comes to these contexts.

If there are no further questions, I will reserve the balance of my time.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Katyal.

Neal Kumar Katyal:

Thank you, Mr. Chief Justice, and may it please the Court:

I would like to begin where my friend did not, with the text of the statute.

Congress enacted subsection (A)(ii), like the rest of IGRA, to address gaming solely on Indian lands.

In fact, Congress used that phrase “ on Indian lands ” a whopping 24 times in IGRA.

By contrast, IGRA says not a word about off-Indian-lands activity.

Antonin Scalia:

So you think Congress really wanted the States to have power to stop illegal gambling on Indian lands, but not to have the power to stop illegal gaming on State lands?

Is that — is that the law you think Congress wrote?

Neal Kumar Katyal:

I do think so, and if I could say first of all–

Antonin Scalia:

Why would anybody want such a disposition?

Neal Kumar Katyal:

–Two reasons, Your Honor, why I think Congress made the choice they did.

But even before that, I don’t think that’s the proper inquiry for this Court.

The proper inquiry for this Court, as C&L and other cases have said, is it requires an unequivocal expression of purpose of Congress before tribal immunity is abrogated, and we don’t get into this kind of question of what Congress might have thought, which creates a guessing game.

But just to answer your question, why would Congress have thought that–

Antonin Scalia:

Well, you think that rule would apply even when at the time the statute in question was enacted there was no belief that there was tribal immunity on State lands?

Neal Kumar Katyal:

–Well, Your Honor, I know my friend on the other side has said that.

That is just flatly wrong.

Puyallup in 1977, Your Honor, precisely said that it involved both on and off-reservation activity, it was commercial activity, it was fishing, and this Court said that tribal immunity protected against that.

So I do think–

Antonin Scalia:

I thought that was just on reservation.

You think that was off reservation as well?

Neal Kumar Katyal:

–It is.

At page 167, Your Honor, it says that the injunction was both on and off reservation.

And then in Kiowa at page 754 this Court made clear that that’s how it read–

Antonin Scalia:

Kiowa was later, of course.

Neal Kumar Katyal:

–Of course, but I think that Congress in enacting IGRA in 1988 certainly was under the same set of assumptions as this Court in 19 — in the Kiowa–

Antonin Scalia:

You think they read Puyallup that closely?

Neal Kumar Katyal:

–I think it’s several places in Puyallup and certainly that’s what this Court in Kiowa said.

Antonin Scalia:

I see.

Neal Kumar Katyal:

And I do think the text is the best guide to what Congress wanted, and the text uses “ on Indian lands ” 24 times.

And the reason for that, the reason why there’s not an absurdity, is twofold: First, Congress in IGRA was reacting to this Court’s decision in Cabazon the year earlier, which had ousted State court — State regulatory jurisdiction entirely from on-Indian-lands activity.

Neal Kumar Katyal:

So it changed the game entirely.

Cabazon did nothing with respect to off-Indian-lands activity and left entirely intact all the remedies we’ve been talking about, Justice Alito’s remedy about criminal sanctions–

Ruth Bader Ginsburg:

You agree with that, that they could — the State could go in and arrest all the customers that are gambling there?

Could it seize the slot machines–

Neal Kumar Katyal:

–Well, it certainly could arrest the customers, the employees, and so on.

And that’s why we would not operate this casino without a square ruling.

It is shuttered, Justice Alito, right now because we need a square ruling that says this is on-Indian-lands activity.

And we would–

John G. Roberts, Jr.:

Well, you don’t it.

You don’t have a square ruling, so I want to make clear, because both you and the Solicitor General have suggested this as an option.

You think it is all right for the State to go in and arrest every employee, management, labor, who is participating in this casino and subject them to criminal sanctions, civil penalties and an injunction.

You have got no problem with that.

Neal Kumar Katyal:

–We think that that’s a consequence of tribal immunity, that when they are seeking relief qua tribe, that’s a different thing, and that’s I think a standard principle–

John G. Roberts, Jr.:

You as a tribe, you as a tribe would have no objection to that action?

Neal Kumar Katyal:

–Well, Your Honor, I think if that sort of circumstance unfolded we might say let’s try and figure out a different way to deal with that.

First, of course, the most primary way is the compact itself, and many compacts, for example, have arbitration clauses–

John G. Roberts, Jr.:

Well, I know, you could suggest different ways and the State could tell you, you know, go fly a kite, we are prosecuting these people.

And you’d have no objection to that?

Neal Kumar Katyal:

–Absolutely.

We are not here trying to say that we want to evade the law.

We want a ruling, a definitive ruling.

We believe very squarely that this is on-Indian-lands activity.

John G. Roberts, Jr.:

What about Ex parte Young?

Are you willing to waive the tribe’s sovereign immunity in an Ex parte Young action?

Because in your opposition to the complaint in this case you raised sovereign immunity as an objection to the Ex parte Young count.

Neal Kumar Katyal:

Sure.

As part in the district court, as part of ordinary discovery, as part of ordinary litigation, we said that Ex parte Young wasn’t applicable.

But we do think, and our brief in opposition says this, our merits brief says this, the United States’ brief says this, that Ex parte Young actions are available against tribes, just as–

John G. Roberts, Jr.:

Not just are available; that you would not assert sovereign immunity if they brought an Ex parte Young action.

Neal Kumar Katyal:

–Well, Your Honor, we would not assert it to the limits of Ex parte Young.

Neal Kumar Katyal:

So, for example, Ex parte Young doesn’t — doesn’t permit reaching into the State coffers, and here Count 5 of the complaint tries to reach into the tribe’s coffers.

So we do think that that type of Ex parte Young — that is not permitted by Ex parte Young and that would be impermissible.

If I could return to the second reason why I think what Congress did wasn’t, you know, creating any sort of anomaly like my friend says, the reason is this: All IGRA did in (A)(ii) is empower compacts.

It didn’t abrogate immunity by itself directly; it requires the tribe to affirmatively buy into the idea of State law applying on the reservation.

So if we could, just imagine a casino, Justice Scalia, opened blatantly on a reservation, a casino without a compact that was absolutely illegal.

We will call it Casino Rhett.

(A)(ii) would not abrogate immunity in that circumstance.

The State would have no remedy.

Anthony M. Kennedy:

I thought the statute says that there is Federal court jurisdiction over any cause of action initiated by a State or Indian tribe to enjoin gaming activity that is conducted in violation of the compact.

Neal Kumar Katyal:

Yeah, on Indian lands, exactly.

And so my example of the casino here would be–

Elena Kagan:

Why couldn’t this–

Neal Kumar Katyal:

–If there is no compact, Justice Kennedy, there is no abrogation.

And so what (A)(ii) does is it empowers the tribe and the compact, and it requires the tribe affirmatively to come in.

And that’s why off Indian land there is standard tribal immunity because the tribe hasn’t said anything one way or the other.

Anthony M. Kennedy:

You don’t think that 1166 abrogates the immunity, which provides that for purposes of Federal law all State laws are applicable?

Neal Kumar Katyal:

Yeah, not at all, Your Honor.

All 1166 does is bring Federal — that’s about Federal enforcement, not at all about State enforcement.

Indeed, Michigan’s own position and Michigan’s Supreme Court said 1166 does says nothing with respect to States–

Anthony M. Kennedy:

And you do not take the position that this casino in this case is part of a compact?

Neal Kumar Katyal:

–Which casino?

Anthony M. Kennedy:

The casino in this case in your view is not subject to any compact, is not covered by any compact?

Neal Kumar Katyal:

No, we do.

We think that the proper remedy here, if they had an objection, would have been to arbitrate and say this is not Indian lands.

Petition appendix 77A and 78A lay out the terms of the compact and what gaming is allowed.

Antonin Scalia:

But he says that if they arbitrated, when they tried to enforce the arbitral judgment, you would assert sovereign immunity.

Neal Kumar Katyal:

Well, two responses to that, Your Honor.

First, of course that is the remedy they agreed to in the compact itself, and of course they should try.

And second–

Antonin Scalia:

Well, I mean, that’s not an answer.

Neal Kumar Katyal:

–Well, it is an answer in the sense that, Your Honor, had they asked we — and I can tell you I’ve discussed this with the tribe — that they of course not — they would of course not assert sovereign immunity to enforce the arbitration agreement.

Sonia Sotomayor:

How do you win in an arbitration when the gaming commission has said it’s not Indian lands?

I mean, I actually am not sure that the ruling of the district court was right on this, okay?

But putting my own beliefs or questions about that ruling, how do you win as the Federal government has said it’s not Indian lands?

Neal Kumar Katyal:

Well, we think that that isn’t a final decision and is wrong for any number of reasons on the merits that, you know, laid out in the Joint Appendix, and so we do think that would be the argument that we would make to the arbitration board.

That should have–

Sonia Sotomayor:

But how does the arbitration board change the mind of the gaming commission?

Aren’t they the final deciders of whether this is trust land or not?

Neal Kumar Katyal:

–Well — no, I think that — I think that that isn’t itself a final decision and there are any number of mechanisms that may be available to try and get the issue properly teed up to the NIGC.

John G. Roberts, Jr.:

I don’t see how an arbitration works.

The Federal government has a very keen interest in whether this is Indian land or not.

And the arbitrator is going to decide that in a way that’s going to bind anybody?

Neal Kumar Katyal:

Well, it would bind, I think, the parties before it, and that’s what the parties agreed to.

In many compacts–

John G. Roberts, Jr.:

So ongoing, as far as the tribe and the State is concerned, they proceed from then on as if this is Indian lands, even though the Federal government is saying, no, it’s not.

Neal Kumar Katyal:

–Well, I think that we would still have to persuade the Federal government in one way, shape, or form because of the NIGC’s authority in this area.

So I think that’s two separate questions.

John G. Roberts, Jr.:

Yes.

So the arbitration doesn’t get — so the arbitration doesn’t get you anywhere at all.

Neal Kumar Katyal:

Well, it at least resolves the issue with respect to Michigan.

Our central point here is that there’s lots of different ways to deal with this question, including the question you asked earlier, the declaratory judgment action, which we brought against Michigan.

There’s lots of ways to resolve the underlying Indian lands question.

The last thing I think this Court needs to do is entirely change the rules of the game with respect to tribal immunity.

Sonia Sotomayor:

Just so we understand–

Ruth Bader Ginsburg:

–What would be the big — what would be the big change, other than modifying Kiowa, which is a divided opinion, and was dealing with a money claim.

It wasn’t dealing with injunctive relief.

Neal Kumar Katyal:

Well, certainly this Court’s decision in Puyallup as well as Oklahoma — Oklahoma Tax Commission both did deal with injunctive relief and both were against States to deal with his argument.

Now, he has said — my friend on the other side has said we’ll look to the foreign sovereign immunity context and that’s what’s giving him his reason for saying that it wouldn’t be such a big change, and we think that’s wrong for two reasons.

Number one, Kiowa itself, at page 759, dealt with this and said that it was the political branches that led the change on commercial immunity, not this Court.

And number two, my friend has quoted Alfred Dunhill, and I think that everything–

Ruth Bader Ginsburg:

Well, is that right?

The distinction between commercial and governmental, it was court made in the first instance.

And then the Foreign Sovereign Immunities Act codified law that was court made.

So it was the courts that made the distinction between acting in a commercial capacity and acting in a governmental capacity.

Neal Kumar Katyal:

–Justice Ginsburg, the majority of Kiowa, on page 759, responds to that and says that it was actually the political branches that led with the–

Stephen G. Breyer:

Yes, but he was wrong on that apparently if that’s what he says.

He was wrong.

That if we look at the cases, what we will see is it was the courts that said there’s a common law abrogation of France’s sovereign immunity when they go into business in downtown Iowa somewhere.

Neal Kumar Katyal:

–And, Justice Breyer–

Stephen G. Breyer:

The same thing — same thing with the State he says in Nevada and California and then he says it would be totally anomalous to think that an Indian tribe could go into downtown Des Moines and open up a clearly illegal business, and you could sue France — the State, which was not Kiowa — they could sue — France could — the State could sue France, it could sue California, but it couldn’t sue the Indian tribe.

Neal Kumar Katyal:

–Justice Breyer, we would encourage the Court to look at precisely the case he is citing for this proposition, which is Alfred Dunhill, because as the case was vigorously argued by a Justice Department attorney, and what — and what my friend doesn’t tell you is that the pages he is citing actually don’t command a majority of the court.

They’re about not commercial — they’re not about foreign sovereign immunity.

They are about active State immunity.

Stephen G. Breyer:

All right.

What about the California and Nevada?

Neal Kumar Katyal:

In the California v. Nevada, I think this Court dealt with in Kiowa itself because in Kiowa — because that’s about basically the State–

Stephen G. Breyer:

Kiowa is about — Kiowa is about individuals who are not the State.

Neal Kumar Katyal:

–Yes.

Exactly.

But I think this Court has recognized in Blatchford and in Kiowa that in Nevada v. Hall situations, which is what the dissenting Kiowa raised, and what my friend is trying to resuscitate, that’s a difference in circumstance because there was a mutuality of concession.

Stephen G. Breyer:

All right.

I’ll look at those with care.

But now, assuming you are right on that, is the question in front of us, on the assumption that these are Indian lands, does the Indian tribe have sovereign immunity?

Is that the question you want answered?

Neal Kumar Katyal:

We think that–

Stephen G. Breyer:

Yes or no?

Neal Kumar Katyal:

–that if they are on Indian lands, yes, there is–

Stephen G. Breyer:

Do you want us to say on that assumption — now, on that assumption, I look at i and number ii under a, 7(a), and a quick reading of them suggests to me that they’re in parallel.

That the Indian tribe can sue the State when the State won’t open negotiations and the State or an Indian tribe can sue the Indian tribe when the Indian tribe refuses to follow the compact.

Now, what’s your answer to that?

Neal Kumar Katyal:

–When it’s on Indian lands, exactly.

Stephen G. Breyer:

Well, I know.

But you said to decide this on the assumption that it’s on Indian lands.

If I make that assumption and then I look over and read Romanette i and Romanette ii, it sounds as if, as I said, Romanette i, the tribe can sue the State to get the compact.

Romanette ii, the State can sue the tribe when it violates the compact.

Neal Kumar Katyal:

Your Honor, I may have misunderstood your earlier question, but certainly our position is that you can look to our answer to determine whether or not there is tribal immunity in the case.

That is not something my friend has argued.

It’s outside of the questions presented entirely, which both proceed on the assumption that this is off of Indian lands.

Samuel A. Alito, Jr.:

Well, for purposes of sovereign immunity, does it make any difference that you have at least a colorable claim if this is on Indian lands?

Neal Kumar Katyal:

Well, I think that it — I — I don’t think it matters either way.

Our position is one way or the other.

Samuel A. Alito, Jr.:

Yes.

So if your — if your client or another tribe just decided to go into the gaming business all over the country and began opening casinos in places that clearly are not Indian lands, you still would have sovereign immunity.

Neal Kumar Katyal:

Right.

There would be tribal immunity for that.

Just as if the blatant casino on Indian lands opened a casino — a tribe opened a casino without a compact, the State would not have an A2 injunctive remedy.

And that’s why there is no anomaly.

Stephen G. Breyer:

That’s why I want to — I’m trying to get what question I’m supposed to answer.

If I’m supposed to answer the sovereign immunity question on the assumption that these are Indian lands contrary to what was decided below, I might get one answer.

But if I’m decide — supposed to do it on the assumption that they’re not Indian lands, I might get a different answer.

What assumption am I supposed to make?

Neal Kumar Katyal:

The latter, Your Honor, for two reasons.

Number one, that’s what the questions presented say.

And number two, one of the most venerable precedence of this Court is the — is Justice Holmes’ opinion — which says you don’t look to our answer to determine–

Sonia Sotomayor:

–What happens if you can’t convince the Federal government that these are Indian lands, and despite the gaming commission’s final ruling, there is no other way to overturn it, you decide to operate the casino.

It’s not Indian lands by the Federal government.

You haven’t convinced them otherwise.

What occurs at that moment?

Neal Kumar Katyal:

–Well, I suppose–

Sonia Sotomayor:

Who can stop you and using what mechanisms?

Neal Kumar Katyal:

–The Federal government has a variety of mechanisms available to it in that circumstance, including closure orders and the like.

And I suppose even the State may have any number of actions, both — many States will have this worked out in the compact, but if they don’t have it worked out in the compact, then there may be the possibility of criminal prosecutions.

Sonia Sotomayor:

Well, the compact only comes into play if it’s Indian lands.

But if the Federal government has said it’s not Indian lands, that’s what I’m asking.

Neal Kumar Katyal:

Right.

I think that still, the State may have any number of criminal or civil remedies available to it.

That is, off Indian lands — and this is why there isn’t an anomaly in A2 — off Indian lands, the State has vast regulatory power.

IGRA was reacting to a circumstance in which this Court ousted State regulatory jurisdiction on Indian lands.

And so the State has a whole bunch of mechanisms available to it.

Elena Kagan:

–Mr. Katyal, what is the difference — the State can really — it can shut down these gambling operations easily if it’s off Indian lands.

What the State can’t do is get any kind of damages or money remedies; isn’t that really the difference?

Neal Kumar Katyal:

I do think so.

I think that that’s — I think that that’s underlying some of this, absolutely.

Elena Kagan:

Maybe that’s an important difference.

I mean, maybe we should give the State the ability to collect damages.

Neal Kumar Katyal:

Well — well, I certainly would disagree with the idea that you, the Court, should.

I think the proper response would be exactly what this Court said in Kiowa, which is if there’s a dispute about the contours of immunity, commercial, off land, State is plaintiff, all of that, those are all things that Congress is well-suited for dealing with.

Ruth Bader Ginsburg:

Mr. Katyal, isn’t it odd to say that when this is the Court — the doctrine of tribal immunity is something that was announced by this Court.

Congress never passed a law that said the tribes have immunity.

It’s all this Court.

And then you say what this Court made only Congress can unmake.

That seems strange to me.

Neal Kumar Katyal:

Justice Ginsburg, that was precisely the argument that was made in Kiowa, was accepted by the dissent in Kiowa.

But what the majority said is really Congress is best able to balance the rights, remedies and reliance interests on the parties.

And I’d note, picking up on your question to my friend earlier, that after Kiowa Congress hasn’t been silent.

Congress has reaffirmed tribal immunity in the Patriot Act extension in 2005 and the SIGR Act of 2009.

They’ve cut it back in the Arizona Water Act and the Zuni Acts of 2003.

This is not a circumstance in which–

Anthony M. Kennedy:

But if the tribe takes such an obscure position, such a changing position, as to whether or not we are dealing with Federal lands here, or pardon me, with Indian land, maybe that’s a reason why we should confine and limit Kiowa so that it doesn’t apply to Indian gaming and we won’t have this problem.

Neal Kumar Katyal:

–Well, I think that’s–

Anthony M. Kennedy:

Because I wanted to get the answer to Justice Breyer’s question, is it your position that these are Indian lands?

And I still don’t understand your position.

Neal Kumar Katyal:

–Our position is–

Anthony M. Kennedy:

And if that’s true, then maybe this whole idea of immunity doesn’t work very well in the context of gaming.

Neal Kumar Katyal:

–Our position, Justice Kennedy, is that they are Indian lands and there is lots of different remedies available both on and off Indian lands, and that this Court in Kiowa set out a way to deal with any sort of cutting back, which is to leave it to Congress.

Samuel A. Alito, Jr.:

What remedy–

John G. Roberts, Jr.:

If we get — go ahead.

Samuel A. Alito, Jr.:

–What remedy would a private person have?

Suppose a patron of a casino was beaten up by casino employees.

What remedy could that person have?

Neal Kumar Katyal:

I think what the Court should do is the same thing it did in Kiowa, which is bracket that question, because this is as far away from that as you can possibly get.

Here the State entered into a contract with its eyes open that not just it didn’t say anything about tribal immunity, it reaffirmed tribal immunity, at Petition Appendix Page 90.

Now, Michigan doesn’t like the terms of that deal and so they are coming and trying to renegotiate that now.

So there may be — for the tort plaintiff, I understand there may be any number of arguments available, but this is so far from that.

John G. Roberts, Jr.:

We’ve talked about this prosecuting the employees.

I suppose if you bring a criminal action against one of the employees, the State would have to prove beyond a reasonable doubt that this was not Indian lands?

Neal Kumar Katyal:

They would.

John G. Roberts, Jr.:

That’s not much of a–

Neal Kumar Katyal:

I’m not sure for an element of that crime whether that piece of it would be beyond a reasonable doubt.

It would be an attendant circumstance and not subject to beyond reasonable doubt.

John G. Roberts, Jr.:

–That makes it a much more different remedy than the typical injunction action.

Neal Kumar Katyal:

But there is still civil remedies and other things going.

John G. Roberts, Jr.:

Thank you, counsel.

Not yet.

We are going to hear from Mr. Kneedler first.

[Laughter]

He might have something you would like to respond to.

Mr. Kneedler.

Edwin S. Kneedler:

Mr. Chief Justice and may it please the Court:

I would like to respond at the outset to the suggestion that this Court might modify the categorical rule in Kiowa that an Indian tribe is subject to suit only if Congress unequivocally consents in order to allow suits by States.

Edwin S. Kneedler:

First of all, both Puyallup and Pottawatomi were suits by States for prospective injunctive relief and the Court found them barred.

Puyallup was off reservation.

But there’s another point that I think ties in with the questions about foreign sovereign immunity.

In this Court’s decision in Blatchford, the Court held that the State of Alaska could not be sued by an Indian tribe complaining about the distribution of some State funds in Alaska, which does not have Indian country.

The Court held that the suit was barred.

In doing so, the Court recognized that the Eleventh Amendment had originally been understood to bar suits only by individuals.

But relying on this Court’s decision in Principality of Monaco, the Court said that the 11th Amendment also barred suits by foreign sovereigns.

And the Court’s rationale in Principality of Monaco was that foreign sovereigns were not parties to the convention.

There was no reciprocal abrogation of immunity between foreign sovereigns and States.

And, in fact, the Court specifically pointed out that the State of Mississippi could not sue Monaco, and in this case Monaco could not sue Mississippi.

The Court applied that very same reasoning in Blatchford to an Indian tribe.

The Court said: We have held in the past that Indian tribes may not be sued, and they cited Puyallup, which was a suit by a State, and the Court said: Logically it follows that a tribe may not sue a State.

Stephen G. Breyer:

So you are prepared to live with the following.

Is it the case that if California opens a business in a commercial activity in 20 other States, at least one of which it is totally illegal, this other State, say Utah, cannot — can sue California or not, what’s the answer?

Edwin S. Kneedler:

The State where that gaming occurs can be, but that’s because of Nevada vs. Hall where the Court drew a distinction between — for States.

In the States–

Stephen G. Breyer:

So what the opposition says in your view is absolutely correct, that a foreign nation opens up an illegal business in a State.

The State can sue them now because of a treaty, but previously because of the common law.

California opens up an illegal business, the State can put them out of business by bringing a suit.

Bust an Indian tribe, they can’t?

That’s the United States view.

Edwin S. Kneedler:

–California in the State-to-State situation, it’s because of the reciprocity.

Stephen G. Breyer:

I’m saying that is your view, I just want the bottom line.

Edwin S. Kneedler:

Yes, but if I may explain.

It’s important to understand the reasoning.

The reasoning why a suit by a State against the sovereign would now be okay is because of the Foreign Sovereign Immunities Act.

As I mentioned with the Principality of Monaco, what the Court said there is the State could not sue the Principality of Monaco because at the time there was no abrogation of immunity.

Foreign sovereign immunity–

Antonin Scalia:

That statute was based upon judicial decisions that had already held that.

Edwin S. Kneedler:

–With all respect, Justice Scalia, it was based upon the executive branch’s determination in the Tate letter.

Edwin S. Kneedler:

In this Court’s decision in Republic of Mexico vs. Hoffman.

The Court said it is not for the Courts to deny an immunity that the government recognizes.

Prior to 1952, when the United States adopted the restrictive theory of sovereign immunity, foreign sovereigns were absolutely immune from suit, unless the political branches said otherwise.

In the Tate letter, the executive branch adopted what was the developing body of international law for foreign sovereign immunity and said that commercial activities could be the subject of suit.

That was codified, but the Court did not take it upon itself to modify that foreign sovereign immunity.

This is the point that the Court made.

Antonin Scalia:

Took it upon itself to accept the executive’s determination of how it ought to play out.

Edwin S. Kneedler:

Yes.

But it didn’t treat it just as a matter of common law, like a maritime common law claim or something like that.

It treated it as structural under the Constitution.

And the same thing is true of Indian tribes.

The Constitution refers to Indian tribes — Worcester v. Georgia announced that Indian tribes are sovereigns.

We make treaties with sovereigns.

John G. Roberts, Jr.:

They are quasi sovereigns.

Which means–

Ruth Bader Ginsburg:

Dependent sovereigns.

John G. Roberts, Jr.:

–Dependent sovereigns which is surprising that the scope of their immunity exceeds that of States or foreign sovereigns.

Edwin S. Kneedler:

They are dependent sovereigns, but they are dependent upon the plenary power of Congress, not the plenary power of this Court.

John G. Roberts, Jr.:

So the federal government can certainly take enforcement action against this casino.

Edwin S. Kneedler:

Yes.

John G. Roberts, Jr.:

The Federal Government, the Solicitor of Interior has said these are not Indian lands, the NIGC has adopted that interpretation.

The NIGC had said, But we can’t do anything because they are not Indian lands.

And we work on Indian lands.

And then they’ve referred, as I understand, the matter to the United States Attorney who has, thus far, not done anything, right?

So basically as I see it, the Federal Government is saying, States, you can’t take action against this illegal casino.

We’re the only ones who can.

We agree that it’s illegal, but we are not going to do anything.

Edwin S. Kneedler:

First of all, by — the casino is promptly closed.

Whether it would have been a prudent exercise of federal criminal prosecutorial authority or Civil Action under 1955, is committed to the ordinary prosecutorial discretion of the United States Government.

Antonin Scalia:

Who made these Indian tribe sovereign, was it Congress?

Edwin S. Kneedler:

The Constitution.

Antonin Scalia:

I mean, you are appealing to, you know, other branches’ determination.

Who decided that Indian tribes are sovereign?

Edwin S. Kneedler:

The Constitution–

Antonin Scalia:

Who pronounced them to be sovereign?

Edwin S. Kneedler:

–This Court.

Antonin Scalia:

This Court.

Edwin S. Kneedler:

But–

Antonin Scalia:

So I assume that this Court could also determine the scope of their sovereignty.

Edwin S. Kneedler:

–But this Court didn’t do it as a matter of common law.

It did it by looking at the Constitution.

We have treaties with Indian tribes, we have the–

Antonin Scalia:

We do virtually nothing as a matter of common law.

We do virtually everything on the basis of the Constitution or statutes.

I don’t think that that’s much of an exception.

Edwin S. Kneedler:

–As this Court said, it’s a general proposition that diminishment of tribal sovereignty is for the political branches.

The Court said that–

Stephen G. Breyer:

Why?

Because you are representing the United States.

You understand Indian policy.

This case has tremendous implications if we follow your approach.

It seems to me well beyond anything to do with gaming.

My belief is Indian tribes all over the country, operate businesses off the reservation, and businesses all over the country are regulated.

And does the State, I guess, in your view does not have the power to enforce the regulation against the Indian tribe.

Edwin S. Kneedler:

–Not against–

Stephen G. Breyer:

Not against the tribe itself.

Why is that in the Indian tribe’s interest?

And is it a trap for the unwary lawyer?

And how is this supposed to work out in your view?

Edwin S. Kneedler:

–Well, Congress has addressed this problem in numerous ways.

Edwin S. Kneedler:

For example, the — and in deciding whether to abrogate immunity, they’re complex decisions.

Should it be under tribal law?

Should it be under State law?

Should it be under Federal law?

Should the suit be if Federal court?

Should it be in State court?

Samuel A. Alito, Jr.:

What about — what about private individuals who may have a claim against — as a result of the operation of the casino?

Vendors who want to be paid, somebody who slips and falls.

That’s all barred by sovereign immunity?

Edwin S. Kneedler:

Unless — unless the tribe consents.

As the — as two of the amicus briefs point out, a number of the tribal compacts provide for waivers of sovereign immunity for tort claims that may arise out of — out of the gaming operation.

Contract claims could be — could be brought in tribal court.

Ruth Bader Ginsburg:

Justice Alito’s question was the Kiowa case.

It was off reservation, the tribe owed money on a contract which it refused to pay, and the court said sovereign immunity.

Edwin S. Kneedler:

Exactly.

And I should also point out that the court said in Kiowa, in addition to reaffirming this analysis that I described from Blatchford and Coeur d’Alene Tribe v. Idaho, the court reaffirmed that reciprocity and principality of Monaco point.

But it also pointed out the tremendous reliance interests that have grown up on — the basis of foreign sovereign immunity.

It pointed out that, for example, 450 N of Title 25 which specifically preserves immunity, something that was reiterated in the No Child Left Behind Act.

But it also specifically pointed out that Congress has sometimes created narrow exceptions to the immunity.

And critically, one of the ones it cited was the very one on which Michigan is relying in this case, 2710(d)(7)(A)(ii).

That is a limited exception for injunctive actions by a State against a tribe.

Congress addressed–

Ruth Bader Ginsburg:

Mr. Kneedler, you went through the development of the foreign sovereign immunity, and whether the courts were influenced by the government, it was the courts that recognized this distinction between commercial activity and governmental activity.

Why couldn’t the court extend that same distinction to Indian tribes and say it makes sense in the foreign country context, it also makes sense in the context of the tribes, to distinguish commercial from governmental?

Edwin S. Kneedler:

–It may well not make sense or it may not lend itself to one answer for the reasons that I said.

Congress, for example, when it comes to tort claims against tribes, adopted a provision making the United States liable for tort claims and not — and not others.

It may not lend itself to one principal answer, which is why the Court said in Kiowa said it’s up to the legislature, the Congress, to weigh the various pros and cons or up to the tribe itself in deciding whether to weigh it.

John G. Roberts, Jr.:

Thank you, Mr. Kneedler.

Mr. Bursch, you have five minutes left.

John J. Bursch:

Thank you, Mr. Chief Justice.

John J. Bursch:

I want to clarify just two things about Court’s precedent and then get back to the remedies issue, which has taken up so much of our time this morning.

First, the state of the law when IGRA was adopted in 1988; again, that was before Kiowa.

I heard my friend on the other side talk about Puyallup and how that was an off-reservation case.

And what you need to understand was that Puyallup was the third in a series of three opinions that this Court issued.

And it’s true that some of the earlier cases involved on and off-reservation conduct.

But as we point out in our reply brief — this is at pages 167 to 68 of that opinion — here the tribe’s contention was that the fishing activities on its reservation were immune.

And Justice Stevens wrote that opinion, and then only a few short years later in Kiowa wrote his dissent where he said we’ve never before drawn that on/off-reservation distinction.

So that’s what Puyallup says.

With respect to Alfred Dunhill and the evolution of foreign sovereign immunity as a common law doctrine, four Justices agreed or signed on to the entire opinion where that discussion was held.

One Justice agreed only with parts one and two, but part two, on page 694, draws the commercial line and says the problem here is that the district court found the only evidence of an active state, as opposed to a commercial act, was a statement by counsel that the Cuban government and the intervenors denied liability and that’s not enough.

And — and the Court did reference the Tate letter, but that’s not why the Court changed the common law of foreign nation sovereign immunity.

It — it gave respectful consideration to the Executive Branch’s views, and then it reached its own conclusion about what the common law should say.

And, Justice Ginsburg, you are exactly right to say if it makes sense in the foreign nation context and it makes sense here, apply it to both.

Antonin Scalia:

If we modified it to make an exception for commercial activities off reservation, could Congress reinstitute sovereign immunity if they wanted?

John J. Bursch:

No question they could.

Just like when this Court in Cabazon said that States didn’t have the regulatory authority they thought they did to regulate illegal gaming on reservation, and this Court said, you know, States can’t really touch that.

Congress immediately jumped in and corrected course.

You know, conversely, with Alfred Dunhill, when this Court drew the line at commercial conduct, Congress immediately jumped in and it put its stamp of approval on that, and essentially adopted the line–

Elena Kagan:

Well, there seems something sort of strange about that, General, because as I read Kiowa, what it was, was an invitation to Congress.

It was saying, you know, we have some concerns about this, we’re not sure it makes sense.

We are dropping a very broad hint that Congress should change it.

And 15 years later, Congress has done nothing.

And then to come back 15 years later and to say, you know, Congress didn’t really accept our hint, so we’ll just do it ourselves and make Congress reverse it, wouldn’t you think that that’s a strange procedure to use?

John J. Bursch:

–Actually, Justice Kagan, I think that’s the way that the common law works, that the Court does extend invitations to the legislative and executive branches.

Antonin Scalia:

Maybe we’ve learned something in 15 years, such as the fact that–

Elena Kagan:

Or that Congress thought that this did make sense.

John J. Bursch:

I think you could draw the conclusion either way.

And the suggestion by the tribe and the government that somehow this Court lacks the power to define common law tribal immunity, we think, doesn’t hold water.

Elena Kagan:

But I would have thought, General Bursch, that one of the principles behind Indian law in this country goes something like this: Congress can do pretty much whatever it wants with respect to Indian tribes, but we will not likely assume that Congress means to undermine tribal sovereignty.

We will — we will insist that Congress says that before we put it into effect.

Elena Kagan:

And here, it’s not just — I mean, Congress has given every indication that it does not wish to change this, notwithstanding our hints that it should.

John J. Bursch:

I respectfully disagree.

And the best evidence of that congressional intent is in IGRA itself where Congress abrogated immunity even for on-reservation conduct.

Think about what an extraordinary remedy that is, that even on the reservation, a State would have the ability to go into court and get a Federal injunction rather than send in police to arrest–

Stephen G. Breyer:

He’s adding one thing, which is as you’ve just heard, that the Indian tribes are in the same Eleventh Amendment type position as the principality of Monaco before the treaty.

John J. Bursch:

–Right, but–

Stephen G. Breyer:

They didn’t participate in the convention and the principality of Monaco was held to be immune, presumably, even from commercial activity.

Let Congress change it.

That’s what Kiowa says.

And that I think is their basic argument.

And if it’s a wash — I mean, I hate to put it this way because it sounds like a joke, but it isn’t meant to be — in this case, if it’s a wash, follow the precedent.

John J. Bursch:

–I think Alfred Dunhill makes clear that this Court can change the stream of the common law when it comes to — to immunity.

Really quickly on — on these remedies.

Sonia Sotomayor:

Then go back to the beginning question.

You have remedies you don’t like, but the waiver under IGRA is not for damages.

It’s only for injunctive relief.

You have that in Ex parte Young.

Why are you asking us to waive sovereign immunity with respect to damages?

John J. Bursch:

I’ll explain why, if I may answer the question.

With respect to arresting, Ex Parte Young remedies, enforcing the arbitration and having them waive immunity, all these things are unclear whether they’re available to us.

And if this Court issued a definitive opinion that said we have each one of those remedies, that would do great good in this area.

But the reason why we think that you should go farther than that is because if sovereignty means anything, it means allowing people to define what is illegal on their own lands, whether it’s prostitution, gaming or underage drinking, and being able to use the full enforcement power of the sovereign State, civil and criminal, to enforce those laws.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.