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