(Re)Solving the Tribal No-Forum Conundrum: Michigan V. Bay Mills Indian Community
123 Yale Law Journal Online 311 (2013)
10 Pages Posted: 4 Dec 2013
Date Written: December 2, 2013
Michigan v. Bay Mills Indian Community, a dispute over a controversial off-reservation Indian casino, is the latest opportunity for the Supreme Court to address the doctrine of tribal sovereign immunity. The Court could hand Michigan a big win by broadly abrogating tribal immunity, and in turn wreak havoc on modern tribal governance. Alternately, the Court could hand Bay Mills a victory by affirming the tribe’s immunity, effectively precluding judicial review of the tribe’s casino project. In this Essay, Professor Matthew L.M. Fletcher argues that neither choice is preferable to a third option that would both advance tribal self-determination and hold tribes accountable to outsiders. The Court could condition tribal immunity in federal or state court on whether the tribe has solved the no-forum problem by providing a tribal forum for the resolution of important disputes.
Keywords: Michigan v. Bay Mills Indian Community, Supreme Court, tribal sovereign immunity, Indian Gaming Regulatory Act, off-reservation gaming, Native Nation Building
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