Michigan v. Bay Mills Indian Community
Oral argument transcript · No. 12-515 · October Term 2013 · argued December 2, 2013 · the respondent won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- John J. Bursch, State Solicitor General, for the petitioner
- Neal K. Katyal, Washington, D.C., for the respondent
- Edwin S. Kneedler, Deputy Solicitor General, amicus curiae supporting the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument first this morning in Case 12515, Michigan v. Bay Mills Indian Community. Mr. Bursch. ORAL ARGUMENT OF JOHN J. BURSCH ON BEHALF OF THE PETITIONER
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, offreservation, 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.
Justice Sotomayor: Counsel, before you go Alderson Reporting Company Official 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. But 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.
Justice 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 look at what the district court said. It explicitly Alderson Reporting Company Official said you weren't part of the order.
John J. Bursch: Well, again, they were consolidated cases. We were supporting the injunction
Justice 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
Justice 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, 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 Alderson Reporting Company Official together. And that's exactly the way the Sixth Circuit treated it.
Justice 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.
Justice 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
Justice Sotomayor: Well, it wasn't eminently clear to the district court who entered the order.
Chief Justice Roberts: 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 Alderson Reporting Company Official 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.
Justice 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
Justice 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 Alderson Reporting Company Official 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 offreservation gaming.
Chief Justice Roberts: 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? Alderson Reporting Company Official
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 would have asserted a tribal immunity there as well. So, really, all roads lead to tribal immunity, no matter how
Justice 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
Justice 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.
Justice 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 Young jurisdiction, but those cases are distinguishable. So Alderson Reporting Company Official 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
Justice Sotomayor: But all you wanted to do was stop them from doing the gaming casino.
John J. Bursch: Well, it's not clear
Justice 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 Alderson Reporting Company Official 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.
Justice 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. 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. Here
Justice Kennedy: What's your best authority what's your best case for that proposition?
John J. Bursch: For the proposition that States are different? Alderson Reporting Company Official
Justice 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.
Justice 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
Justice Kennedy: You know, that's that's a big reading assignment. (Laughter.)
Justice 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. Alderson Reporting Company Official
Justice Breyer: Two, California opens up a casino.
John J. Bursch: Yes.
Justice Breyer: Three, an Indian tribe opens up a casino, okay?
John J. Bursch: Correct.
Justice 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
Justice Breyer: Now, 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 Alderson Reporting Company Official happens, then the common law development
Justice 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.
Justice Breyer: Okay. All those are common law. Both
John J. Bursch: All common law.
Justice 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
Justice Kagan: But I think this is what Justice Kennedy was was getting at, when he asked you Alderson Reporting Company Official for a case, because what you're saying now is that when the State is the plaintiff
John J. Bursch: Yes.
Justice 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.
Justice 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 nontribal members. It's not
Justice Breyer: You know, but the question specifically then I think we're driving at the same Alderson Reporting Company Official thing is, remember, you just cited to me two cases
John J. Bursch: Yes.
Justice Breyer: one involving France and one involving California.
John J. Bursch: Yes.
Justice 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. Am I going to find that when I read those two cases?
John J. Bursch: Well
Justice 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 had 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. What
Justice Breyer: Now, what you're asking us to do then, if the answer is what I now think you're Alderson Reporting Company Official 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.
Justice 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.
Justice Ginsburg: But once the Congress didn't respond, the majority opinion in Kiowa I don't know whether it's "Kiowa" 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, Alderson Reporting Company Official 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.
Justice Alito: 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 intersovereign conflict that Congress was trying to avoid when it allowed, under IGRA, for States to get injunctions, even for onreservation conduct.
Justice Alito: 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 Alderson Reporting Company Official 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
Justice Alito: Going forward then
Justice 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?
Justice 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.
Justice Alito: Well, that's a more Alderson Reporting Company Official sophisticated version of my question. (Laughter.)
Justice Alito: 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
Justice Alito: Well, I understand that.
John J. Bursch: any time you take out our
Justice Alito: But going forward, is this of any importance? Why
John J. Bursch: Oh, this is of tremendous importance.
Justice Alito: 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 Alderson Reporting Company Official sovereign immunity?
John J. Bursch: Well, we had a compact in place in 1993 that limited their casinos, so that this wouldn't happen. Going forward
Justice Alito: 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 20year 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
Justice Alito: If I could just pursue that?
John J. Bursch: Sure.
Justice Alito: So the compact has expired, Alderson Reporting Company Official and there's so then how can they operate the casino?
John J. Bursch: Well, it hasn't expired. Until the parties
Justice Alito: Until they reach a new compact, it continues.
John J. Bursch: Until they reach a new compact, it continues in effect.
Chief Justice Roberts: 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
Justice Sotomayor: Could I ask you a question?
Justice 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.
Justice Sotomayor: Could I ask you a Alderson Reporting Company Official 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.
Justice 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.
Justice 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
Justice 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 are currently under its exclusive Alderson Reporting Company Official sovereign jurisdiction be determined to be Indian lands
Justice Sotomayor: Put put this aside of gambling. Let's assume that it was just their buying this land.
John J. Bursch: Yes.
Justice 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
Justice 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.
Justice 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 Alderson Reporting Company Official 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.
Justice 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? And so you have the ability to arrest people. You have the ability to bring Ex Parte Young actions. Presumably, you have the ability on nonIndian lands simply to shut down a casino. Presumably, you have the ability on nonIndian lands to condition any licensing of the casino on whatever you want. I guess the question is: On nonIndian 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.
Justice Kagan: Well, I think that all of our cases suggest that sovereign immunity is quite Alderson Reporting Company Official 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 Alderson Reporting Company Official 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.
Justice Alito: 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.
Chief Justice Roberts: Can you prosecute people who frequent this illegal casino?
John J. Bursch: Sue Michigan citizens?
Chief Justice Roberts: Yes.
John J. Bursch: Yes, we could do that. But you know, 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 Alderson Reporting Company Official 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. And so the State moved in to foreclose for nonpayment of taxes those offreservation 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, Alderson Reporting Company Official cert was dismissed because the tribe waived immunity, and they were able to go forward and pursue that remedy. But you know, 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.
Chief Justice Roberts: Thank you, counsel. Mr. Katyal. ORAL ARGUMENT OF NEAL KUMAR KATYAL ON BEHALF OF THE RESPONDENTS
Neal K. 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 offIndianlands activity.
Justice Scalia: So you think Congress Alderson Reporting Company Official 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 K. Katyal: I do think so, and if I could say first of all
Justice Scalia: Why would anybody want such a such a disposition?
Neal K. 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
Justice 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 K. Katyal: Well, Your Honor, I know my friend on the other side has said that. That is just Alderson Reporting Company Official flatly wrong. Puyallup, in 1977, Your Honor, precisely said that it involved both on and offreservation activity, it was commercial activity, it was fishing, and this Court said that tribal immunity protected against that. And so so I do think
Justice Scalia: I thought that was just on reservation. You think that was off reservation as well?
Neal K. 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
Justice Scalia: Kiowa was later, of course.
Neal K. 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
Justice Scalia: You think they read Puyallup that closely?
Neal K. Katyal: I well, I think it's several places in Puyallup, and certainly, that's what this Court in Kiowa said.
Justice Scalia: I see.
Neal K. Katyal: And I do think the text is the Alderson Reporting Company Official 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 onIndianlands activity, so it changed the game entirely. Cabazon did nothing with respect to offIndianlands activity. It left entirely intact all the remedies we've been talking about, Justice Alito's remedy about criminal sanctions
Justice 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 K. 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 onIndianlands activity. And we would like that
Chief Justice Roberts: 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 Alderson Reporting Company Official suggested this as an option: You think it is all right for the State to go in and arrest every employee, management you know, 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 K. Katyal: We think that that's a consequence of tribal immunity, that when you when they are seeking relief qua tribe, that's a different thing, and that's, I think, a standard principle
Chief Justice Roberts: You, as a tribe you, as a tribe, would have no objection to that action?
Neal K. 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
Chief Justice Roberts: 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 K. 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 Alderson Reporting Company Official squarely, that this is onIndianlands activity.
Chief Justice Roberts: Okay. 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
Neal K. Katyal: Sure. Sure. As part in the district court, as part of ordinary 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
Chief Justice Roberts: Not just are available; that you would not assert sovereign immunity if they brought an Ex Parte Young action.
Neal K. Katyal: Well, Your Honor, we would not assert it to the limits of Ex Parte Young. 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. Alderson Reporting Company Official If I could return to the second reason why I think what Congress did wasn't 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 Red." (A)(ii) would not abrogate immunity in that circumstance. The State would have no remedy.
Justice 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 K. Katyal: Yeah, on Indian lands, exactly. And so my example of the casino here would be
Justice Kennedy: Why couldn't this
Neal K. 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 Alderson Reporting Company Official that's why, off Indian land, there is standard tribal immunity because the tribe hasn't said anything one way or the other.
Justice Kennedy: And you don't think that 1166 abrogates the immunity, which provides that, for purposes of Federal law, all State laws are applicable?
Neal K. 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
Justice Kennedy: And you do not take the position that this casino in this case is part of a compact?
Neal K. Katyal: Which casino?
Justice Kennedy: The casino in this case, in your view, is not subject to any is not covered by any compact?
Neal K. 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.
Justice Scalia: But he says that, if they Alderson Reporting Company Official arbitrated, when they tried to enforce the arbitral judgment, you would assert sovereign immunity.
Neal K. 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
Justice Scalia: Well, I mean, that's not an answer.
Neal K. 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 would, of course, not they would, of course, not assert sovereign immunity to enforce the arbitration agreement. We have
Justice 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 if the Federal government has said it's not Indian lands?
Neal K. 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 Alderson Reporting Company Official that we would make to the arbitration board. That should have been the remedy
Justice 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 K. 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.
Chief Justice Roberts: 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 K. Katyal: Well, it would bind, I think, the parties before it, and that's what the parties agreed to. In many compacts
Chief Justice Roberts: 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 K. 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 Alderson Reporting Company Official this area, so I think that's two separate questions.
Chief Justice Roberts: Yes. So the arbitration doesn't get so the arbitration doesn't get you anywhere at all.
Neal K. 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.
Justice Sotomayor: Just so we understand
Justice 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 K. 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 Alderson Reporting Company Official 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
Justice Ginsburg: But – Mr. Katyal, 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 K. 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
Justice 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. Alderson Reporting Company Official
Neal K. Katyal: And Justice Breyer
Justice 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 K. 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.
Justice Breyer: All right. What about the California and Nevada?
Neal K. 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 Alderson Reporting Company Official
Justice Breyer: Now, Kiowa is about is it Kiowa? is about individuals who are not the State.
Neal K. 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 dissent in Kiowa raised and what my friend is trying to resuscitate, that's a difference in circumstance because there was a mutuality of concession.
Justice 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 K. Katyal: We think that
Justice Breyer: Yes or no?
Neal K. Katyal: that if they are on Indian lands, yes, there is
Justice 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 Alderson Reporting Company Official the compact. Now, what's your answer to that?
Neal K. Katyal: When it's on Indian lands, exactly.
Justice 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 i and ii, it sounds as if, as I said, i, the tribe can sue the State to get the compact; ii, the State can sue the tribe when it violates the compact.
Neal K. 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.
Justice Alito: Well, for purposes of sovereign immunity, does it make any difference that you have at least a colorable claim that this is on Indian lands?
Neal K. Katyal: Well, I think that it I I don't think it matters either way. Our position is one way or the other. Alderson Reporting Company Official
Justice Alito: 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 K. 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.
Justice 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 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 K. 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 in Kohler Die which says you don't look to our answer to determine
Justice Sotomayor: What happens if you Alderson Reporting Company Official 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 K. Katyal: Well, I suppose
Justice Sotomayor: Who can stop you and using what mechanisms?
Neal K. 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 you know, 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.
Justice 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 K. 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 Alderson Reporting Company Official 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.
Justice Kagan: Mr. Katyal, isn’t 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 K. Katyal: I do think so. I think that that's I think that that's underlying some of this, absolutely.
Justice Kagan: Maybe that's an important difference. I mean, maybe we should give the State the ability to collect damages.
Neal K. 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 wellsuited for dealing with.
Justice Ginsburg: Mr. Katyal, isn't it odd Alderson Reporting Company Official 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 K. 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
Justice 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 that we should confine and limit Kiowa so that it doesn't apply to Indian gaming, and we won't have this problem. Alderson Reporting Company Official
Neal K. Katyal: Well, I think that's
Justice 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 K. Katyal: Our position is
Justice Kennedy: And if that's true, then maybe this whole idea of immunity doesn't work very well in the context of gaming.
Neal K. 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.
Justice Alito: What remedy
Chief Justice Roberts: If we get go ahead.
Justice Alito: 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 K. 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 Alderson Reporting Company Official 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.
Chief Justice Roberts: 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 K. Katyal: They would.
Chief Justice Roberts: That's not much of a
Neal K. 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.
Chief Justice Roberts: That makes it a much more difficult remedy than the typical injunction action.
Neal K. Katyal: But there is still civil Alderson Reporting Company Official remedies and other things going.
Chief Justice Roberts: Thank you, counsel. Not yet. We are going to hear from Mr. Kneedler first. (Laughter.)
Chief Justice Roberts: He might have something you would like to respond to. Mr. Kneedler. ORAL ARGUMENT OF EDWIN S. KNEEDLER, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING the RESPONDENTS
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. 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 Alderson Reporting Company Official that the State of Alaska could not be sued by an Indian tribe complaining about the distribution of State 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 Eleventh 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
Justice Breyer: So you are prepared to live with the following: Is it the case that if California Alderson Reporting Company Official 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 v. Hall where the Court where the Court drew a distinction between for States. In the States there was a
Justice 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. If California opens up an illegal business, the State can put them out of business by bringing a suit. But an Indian tribe, they can't? That's the United States' view?
Edwin S. Kneedler: California in the StatetoState situation, it's because of the reciprocity
Justice Breyer: But I'm saying that is your view, though? I just want the bottom line.
Edwin S. Kneedler: Yes, but let me if I may explain? It's important to understand the reasoning. The reasoning why a suit by a State against Alderson Reporting Company Official the sovereign would now be okay is because of the Foreign Sovereign Immunities Act. As I mentioned with the Principality of Monaco, part of 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
Justice Scalia: That that statute was based upon judicial decisions that had 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. In this Court's decision in Republic of Mexico v. 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 Alderson Reporting Company Official itself to modify that foreign sovereign immunity. And this is this is the point that the Court made in Kiowa.
Justice Scalia: Took it upon itself to accept the Executive's determination of how it ought to play out?
Edwin S. Kneedler: Well, 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’ve made treaties with sovereigns.
Chief Justice Roberts: But they are quasi quasisovereigns, which means
Justice Ginsburg: Dependent sovereigns.
Chief Justice Roberts: Dependent sovereigns, which means the it is surprising that the scope of their immunity exceeds that of States or foreign sovereigns.
Edwin S. Kneedler: They they are dependent sovereigns, but they are dependent upon the plenary power of Congress, not the plenary power of this Court.
Chief Justice Roberts: So the so the Federal government can certainly take enforcement action Alderson Reporting Company Official against this casino.
Edwin S. Kneedler: Yes.
Chief Justice Roberts: The Federal government, the Solicitor of Interior has said these are not Indian lands, the NIGC has adopted that interpretation. The NIGC has 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?
Edwin S. Kneedler: Well
Chief Justice Roberts: 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: We are first of all, by the casino was promptly closed. And 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.
Justice Scalia: Who made these Indian tribe sovereign? Was it Congress?
Edwin S. Kneedler: The Constitution. Alderson Reporting Company Official
Justice Scalia: I mean, you are appealing to you know, other branches' determination. Who decided that Indian tribes are sovereign?
Edwin S. Kneedler: The Constitution by in the Commerce clause
Justice Scalia: Who pronounced them to be sovereign?
Edwin S. Kneedler: This this Court.
Justice Scalia: This Court.
Edwin S. Kneedler: But
Justice 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 Commerce Clause
Justice 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 in Lara, it's a general proposition that diminishment of tribal sovereignty is for the political branches. The Court said that
Justice Breyer: Why? Because you are representing the United States. You have you Alderson Reporting Company Official 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
Justice Breyer: Why is that 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. 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 in Federal court? Should it be in State court?
Justice Alito: 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 Alderson Reporting Company Official 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
Justice 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, 450n 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 Alderson Reporting Company Official 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
Justice 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, in Kiowa, said it's up Alderson Reporting Company Official to the legislature, the Congress, to weigh the various pros and cons or up to the tribe itself in deciding whether to weigh it.
Chief Justice Roberts: Thank you, Mr. Kneedler. Mr. Bursch, you have five minutes left. REBUTTAL ARGUMENT OF JOHN J. BURSCH ON BEHALF OF THE PETITIONER
John J. Bursch: Thank you, Mr. Chief Justice. I want to clarify just two things about the 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 offreservation 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 offreservation 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 Alderson Reporting Company Official 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/offreservation 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.
Justice Scalia: If we modified it to make Alderson Reporting Company Official 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
Justice 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? Alderson Reporting Company Official
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.
Justice Scalia: Maybe we've learned something in 15 years, such as the fact that (Laughter.)
Justice Kagan: Maybe we learned 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.
Justice 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. 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. Alderson Reporting Company Official
John J. Bursch: I respectfully disagree. And the best evidence of that congressional intent is in IGRA itself, where Congress abrogated immunity, even for onreservation 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
Justice 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
Justice 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. Alderson Reporting Company Official Really quickly on on these remedies
Justice 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.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:06 a.m., the case in the Alderson Reporting Company Official aboveentitled matter was submitted.)