Supreme Court Update: Michigan v. Bay Mills Indian Community (12-515), Wood v. Moss (13-115) and Martinez v. Illinois (13-5967)

June 2, 2014 Supreme Court Update

Greetings, Court fans!

We're back with the remainder of last week's decisions: Michigan v. Bay Mills Indian Community (12-515), embracing a broad view of tribal sovereign immunity; Wood v. Moss (13-115), finding that secret service officers who moved protesters away from President Bush were entitled to qualified immunity; and Martinez v. Illinois (13-5967), underscoring the bright-line rule that jeopardy in criminal cases attaches when a jury is empaneled and sworn.

In Michigan v. Bay Mills Indian Community (12-515) the Court determined that sovereign immunity prevents a State from suing an Indian tribe for commercial activity outside its reservation. Under the Indian Gaming Regulatory Act ("Gaming Act"), the state of Michigan entered into a compact that permitted the Bay Mills Indian Community to construct a casino on Indian lands within Michigan's borders. Bay Mills opened a casino on its reservation in the Upper Peninsula of Michigan without incident, but later bought property in the Lower Peninsula and sought to operate a casino there as well. For reasons not pertinent to the opinion, the Tribe argued that the Lower Peninsula lands were now Indian lands (they were not, as it turns out). Michigan sued and the District Court entered a preliminary injunction against the Tribe. The Sixth Circuit reversed on grounds of sovereign immunity.

An ideologically mixed majority affirmed. In her majority opinion, Justice Kagan stressed the baseline assumption in favor of tribal sovereign immunity. Indian tribes are "domestic dependent nations" that exercise "inherent sovereign authority." A tribe's sovereignty is subject to the plenary control of Congress and the tribe retains all its sovereign benefits until Congress acts. One of these benefits is immunity from suit. Citing Kiowa Tribe of Oklahoma v. Manufacturing Tech. (1998), Kagan noted that the Court had long held that there was no exception for a suit arising from a Tribe's commercial activities, even if those activities occurred outside of Indian lands. Here, the Gaming Act authorized a State to sue a tribe to "enjoin [certain] gaming activity located on Indian lands and conducted in violation of any Tribal-State compact." A plain reading of this language, Kagan reasoned, did not permit a suit to enjoin gaming activities located off Indian lands. The Court noted that Michigan still had other remedies, such as bringing a civil or criminal suit against the individual tribe members that operated the casino. The State just could not sue the Tribe.

The Court rejected Michigan's three arguments in favor of reversal. First, the Court rejected the notion that the Tribe had engaged in "gaming activity" on the reservation by authorizing, licensing and operating the Lower Peninsula casino from its offices on the Upper Peninsula reservation. Gaming activity meant "the stuff involved in playing [casino] games." Second, the Court left it to Congress to rectify what Michigan called an "anomaly" in the statute—the State can sue a Tribe for gaming activity on Indian land, but not where the activity occurs on the State's sovereign lands.

The third argument is where the majority, concurrence, and dissent had their major disagreement. Michigan asked the Court to overturn Kiowa and rule that Indian tribes have no immunity for illegal commercial activity outside of Indian lands. The majority stated that the Court would not overturn its precedents lightly, noting that both the Court and private litigants have already relied on Kiowa. Moreover, Congress was aware of Kiowa and had rejected attempts to overturn the decision through legislation. (In an interesting footnote, however, Justice Kagan noted a potential scenario in which the Court might depart from Kiowa in the future—if a person, such as a tort victim, has not chosen to deal with the Tribe and has no alternative remedy.)

The dissent would have overruled Kiowa, characterizing that decision as an ill-advised, judge-made expansion of tribal sovereign immunity that has not withstood the test of time. Writing for the dissent, Justice Thomas stated that tribal sovereign immunity in federal courts arose "almost by accident," and noted that sovereigns do not generally have immunity in courts of another sovereign. Outside of tribal courts, Thomas argued there is no inherent immunity for tribes. Therefore, tribal immunity is not based on an inherent right, but rather on the principles of comity. Accordingly, like the immunity afforded to other foreign sovereigns, a tribe's immunity should be limited to instances where it is necessary to protect the tribe's government or internal affairs. Thomas also argued that principles of comity weighed in favor of overturning Kiowa because it unnecessarily interfered with the sovereignty of the States. Tribes have used Kiowa to conduct commercial activity that is otherwise heavily regulated by States, such as the regulation of payday lenders and campaign finance laws. These factors, Thomas contended, weigh in favor of overturning Kiowa. (In her concurrence, Justice Sotomayor also weighed the principles of comity, but concluded that they favored Bay Mills.) Justice Scalia, who had concurred in Kiowa but joined the dissent here, wrote separately to underscore that he wanted the Court to overrule Kiowa now, "rather than insist that Congress clean up a mess that I helped make." And Justice Ginsburg put in a word for strong federal power in her own dissenting opinion, stating her view that the Court had also "carried beyond the pale" the principle of States' sovereign immunity.

We turn now from sovereign immunity to qualified immunity. Woods v. Moss (13-115) poses this tricky question: What's a secret service agent to do when the President suddenly decides to dine . . . on an outdoor patio . . . in close proximity to a group of protesters? The secret service officers in Woods moved the protesters a block down the street and then, because they were still within weapons range, another block away. As a result, the protesters ended up being two blocks away, out of sight and hearing of President Bush, when his motorcade later traveled along its planned route, while the Bush supporters remained in their original location with a close up view of the President as he passed by in his limo. The protesters sued the agents for damages under Bivens, claiming that the agents had engaged in viewpoint discrimination by moving them, but not the Bush supporters. They claimed that the agents' conduct was part of an overall plan to minimize public protests and dissent led by the White House. The case was originally dismissed, but after plaintiffs repleaded with additional details (including other alleged examples of viewpoint discrimination by the secret service), the District Court denied the agents' motion to dismiss based on qualified immunity and the Ninth Circuit affirmed.

The Court reversed unanimously, in an opinion by Justice Ginsburg. As an initial matter, the Court noted that it was unclear whether a Bivens claim for damages is available for violations of the First Amendment. However, as the agents did not raise this issue below, the Court did not address it. Assuming that the cause of action did exist, the agents were still entitled to qualified immunity as there was no clearly established law requiring that, in establishing a security perimeter to protect the President, the agents had to keep both protesters and supporters at equal distances from the President at all times. The route was set up so that both protesters and supporters would be within sight of the motorcade. However, when President Bush unexpectedly stopped for dinner, only the protesters were within weapons range, while the supporters were blocked by a two story building. Thus, there was an objectively reasonable basis supporting the agents' differing treatment of the two groups. Accordingly, the agents were immune from suit.

Finally, in Martinez v. Illinois (13-5967), Martinez was charged with aggravated battery and "mob action" in 2006, but his trial was continued multiple times at the State's request because it could not locate the complaining witnesses. When the fourth or fifth rescheduled start of trial arrived and the State was still unable to produce the witnesses, the court refused to grant another continuance, telling the prosecutors they could dismiss the case or proceed with swearing the jurors. The State opted to take a third route, allowing the jurors to be sworn, but intoning "the State is not participating in this case" when directed to give an opening statement, and again when directed to call its first witness. At that point, the defense moved for an acquittal, which the court granted. The State appealed. Martinez contested the appeal on Double Jeopardy grounds, but the Illinois Appellate Court and Supreme Court both held that jeopardy never attached because Martinez "was never at risk of conviction." The Court swiftly and decisively reversed, in a per curiam opinion. The Court's precedents make clear that jeopardy attaches when the jury is empaneled and sworn. This is a "bright-line rule." The Court further found that, having attached, Martinez's jeopardy in this case ended in a manner that bars retrial, namely in a "textbook acquittal: a finding that the State's evidence cannot support a conviction."

The Court issued three new opinions today, including Bond v. United States (12-158), the case of the aggrieved wife charged under a federal chemical weapons statute. We'll be back with those opinions shortly.

Kim, Jenny & Tadhg