Sault Ste Marie Tribe of Chippewa Indians v. Bernard Bouschor ( 2010 )

Order Michigan Supreme Court Lansing, Michigan January 27, 2010 Marilyn Kelly, Chief Justice 137990 & (113) Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman SAULT STE. MARIE TRIBE OF CHIPPEWA Diane M. Hathaway, INDIANS, Justices Plaintiff/Counter-Defendant/ Appellee, v SC: 137990 COA: 276712 Chippewa CC: 04-007606-CC BERNARD BOUSCHOR, Defendant/Appellant, and DANIEL T. GREEN, DAVID E. SCOTT, JAMES M. JANNETTA, and DANIEL J. WEAVER, Defendants/Counter-Plaintiffs/ Appellees, and PAUL W. SHAGEN, JOSEPH M. PACZKOWSKI, and JOLENE M. NERTOLI, Defendants/Counter-Plaintiffs, and MILLER, CANFIELD, PADDOCK & STONE, P.L.C., Defendant/Appellee. _________________________________________/ By order of September 18, 2009, we directed the parties to provide supplemental briefs. On order of the Court, the briefs having been received, the application for leave to appeal the November 18, 2008 judgment of the Court of Appeals is again considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we AFFIRM on alternative grounds the Court of Appeals affirmance of the trial court’s denial of defendant Bernard Bouschor’s motion for summary disposition. MCL 691.1407(5) provides immunity to “elective . . . executive official[s]” of the state of Michigan “acting 2 within the scope of [their] . . . authority,” not to those of a sovereign Indian nation. The defendant, as a former executive official of a sovereign Indian nation, is therefore not entitled to governmental immunity under the law of the state of Michigan. MCL 691.1407(2) provides qualified immunity to an “officer . . . of a governmental agency” who “reasonably believes he or she is acting within the scope of his or her authority.” Similar to MCL 691.1407(5), MCL 691.1407(2) applies only to officers of “the state or a political subdivision.” See MCL 691.1401(c), (d). Accordingly, the defendant is not entitled to qualified immunity under Michigan’s governmental tort liability act. In incorporating Michigan’s governmental tort liability act into its own tribal code, as it did for all laws of the state of Michigan that do not conflict with the tribal code, the plaintiff tribe has only provided immunity to Michigan governmental employees and officers, not to its own employees and officers. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. January 27, 2010 _________________________________________ p0120 Clerk