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Supreme Court hears arguments in American Indian casino case

The US Supreme Court [official website] heard oral arguments [day call, PDF] Monday in two cases. In Michigan v. Bay Mills Indian Community [transcript, PDF; JURIST report] the court was asked to consider whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating the Indian Gaming Regulatory Act (IGRA) [25 USC § 2701 et seq.] outside of Indian lands. In this case the state of Michigan and the Little Traverse Bay Bands of Odawa Indians brought suit to prevent the Bay Mills Indian Community from operating a small casino in Vanderbilt, Michigan. The district court entered a preliminary injunction ordering Bay Mills to stop gaming at the Vanderbilt casino. The US Court of Appeals for the Sixth Circuit held [opinion] that the district court lacked jurisdiction over some of the plaintiffs' claims and that sovereign immunity bars the others. Counsel for Michigan argued that "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." Counsel for the respondents argued that "The proper inquiry for this Court ... 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." Counsel for the US government argued as amicus curiae on behalf of respondents.

In BG Group PLC v. Republic of Argentina [transcript, PDF; JURIST report] the court must decide whether a court or the arbitrator determines if a precondition to arbitration has been satisfied in disputes involving a multi-staged dispute resolution process. The case involves a Bilateral Investment Treaty between the UK and Argentina, signed into law in 1990. The treaty provides that a dispute between an investor and a host state will be resolved in the host state's courts, and, if no timely resolution is reached, then the case proceeds to arbitration. British investor BG Group PLC invoked the arbitration clause against Argentina without first filing in Argentine court. The panel found that it had jurisdiction and awarded damages to BG Group. The district court denied Argentina's motion to vacate the award, but the US Court of Appeals for the District of Columbia Circuit vacated the award [opinion]. BG Group argues that it is for the arbitrator, not the court, to determine whether the precondition to arbitration has been satisfied. Counsel for BG Group asked the court "to resolve this case narrowly by reaffirming that an arbitrator rather than a court presumptively resolves a dispute over a precondition to arbitration." Counsel for the US government argued as amicus curiae in support of vacating the lower court's judgment and remanding. Counsel for Argentina argued, "This is a contract formation case and it's a case that is decided properly by the court below whether you apply first options or whether you apply treaty principles."

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