Courts have long held that Native American governments enjoy tribal sovereign immunity from suit, subject only to Congress’s plenary authority. Sixteen years ago, in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc.,1 the Supreme Court affirmed that tribes retain sovereign immunity when engaged in off-reservation commercial activity.2 Subsequent economic development by some Indian tribes has resulted in an increasing number of legal disputes that have run up against tribal immunity, and some have argued that tribal immunity should be limited in commercial contexts to allow state and federal courts to adjudicate business disputes between nonmembers and tribes.3 Last Term, in Michigan v. Bay Mills Indian Community,4 the Supreme Court reaffirmed the broad reach of tribal immunity. The Court held that a tribe is immune from suit for commercial activities on nontribal land so long as federal law has not expressly waived immunity,5 but noted in dicta that a state may use alternative, state-specific enforcement measures against individuals affiliated with the commercial activity.6 While the Court’s decision is a victory for those who feared the abrogation of tribal immunity, its suggestion that states seek remedies in state law signals approval of leaving the resolution of legal questions central to state-tribe disputes to the states, even when the question concerns the extent of Indian land. Such a view would be inconsistent with recent trends generally favoring greater federal control and congressional support for tribal self-determination, and could result in actions that are detrimental to tribes.
In 1988, Congress passed the Indian Gaming Regulatory Act7 (IGRA) to regulate gaming activities on Indian land.8 IGRA requires Indian tribes seeking to operate casinos to enter a state-tribe compact that governs the gaming activity.9 The Act also allows states to sue tribes to enjoin unauthorized gaming activity on Indian lands.10 In 1993, the Bay Mills Indian Community (Bay Mills), a federally recognized Indian tribe, entered into a tribal gaming compact with the State of Michigan that allowed class III gaming activities on Indian lands.11 In 2010, Bay Mills used funds from a federally established trust to purchase off-reservation land, which was, under federal law, to “be held as Indian lands are held.”12 Bay Mills built and operated a casino on this land, claiming that it counted as Indian land under IGRA.13 Michigan disagreed and, with a competing tribe, sued Bay Mills to enjoin the casino’s operation.14
The district court granted a preliminary injunction.15 The court reasoned that interpretation of the “Indian lands” requirement of IGRA was a federal question over which it had jurisdiction and that the coplaintiffs had shown sufficient likelihood of success on the merits and risk of injury to warrant a preliminary injunction.16
The Sixth Circuit vacated. In an opinion authored by Judge Kethledge, the court noted that IGRA does not grant jurisdiction unless the cause of action seeks to enjoin class III gaming activity on Indian lands.17 Michigan had alleged that the casino was improperly not on tribal lands, but if that were true, the courts would have no jurisdiction.18 The court also dismissed the remaining charges under the doctrine of tribal immunity,19 which it described as applying regardless of where the activities occurred.20 Thus, even if the casino were not on “Indian lands,” as was claimed by Michigan, Michigan could not sue the tribe to shut the casino down unless either Congress expressly abrogated the tribe’s immunity or the tribe clearly waived it.21 The court concluded that IGRA included no “unequivocal expression” of abrogation22 and that the tribe’s gaming ordinance similarly did not waive immunity.23
The Supreme Court granted certiorari to decide whether tribal sovereign immunity barred Michigan’s suit, and it affirmed.24 Justice Kagan, writing for the Court,25 noted its longstanding tradition of treating Indian tribes as “domestic dependent nations”26 with inherent sovereignty predating the Constitution.27 As such, tribes have “common-law immunity from suit traditionally enjoyed by sovereign powers,”28 subject only to Congress’s control, and such tribal immunity applies even against suits brought by states.29 Justice Kagan noted that Kiowa expressly refused to limit tribal immunity to noncommercial activities or to conduct on tribal lands.30 Therefore, the Court reasoned, Michigan would prevail only if (1) tribal sovereignty had been abrogated or waived, or (2) the Court overturned Kiowa.31
The Court found that there had been no abrogation or waiver of tribal immunity under IGRA or the state-tribe charter. The Court agreed with the Sixth Circuit that IGRA allows a state to sue to enjoin only class III gaming activity on Indian lands.32 Justice Kagan rejected Michigan’s argument that “class III gaming activity” includes secondary activities, such as managing an off-reservation casino from within a reservation, because IGRA’s use of “class III gaming activity” made sense only if it referred to activities directly related to gambling.33
The Court also refused to go beyond the text of the statute, limiting suits to those concerning gaming activity on Indian lands. Though Michigan argued that Congress did not intend to leave states with the power to regulate Indian casinos on Indian land but not on state land, precedent demanded that Congress must “‘unequivocally’ express” its intent to waive tribal immunity.34 The Court also noted that Michigan has available other options to enforce its law on nontribal lands. For example, the State could deny state licenses for the casino,35 bring suit against individual Indian officials,36 or renegotiate its compact with the tribe to include a waiver of tribal immunity.37
The Court also declined to overturn Kiowa. The Court emphasized the importance of stare decisis and noted that Kiowa was only one case in a long line of precedent upholding broad tribal immunity from lawsuits.38 Even if, as Michigan argued, tribes have increased the scope of their commercial activities outside of Indian lands, many entities have relied upon the Kiowa line of cases when negotiating transactions with tribes, and tribes themselves have relied on this precedent when negotiating with other entities.39 Further, the Court observed that Congress had amended statutes governing tribal immunity since Kiowa without overturning Kiowa’s holding.40 Thus, the Court wrote, overturning Kiowa now would go against Congress’s tacit approval of tribal immunity for commercial activity outside of Indian lands.41
Justice Sotomayor filed a separate concurrence that emphasized the history of tribal sovereignty. She noted that, despite the dissent’s assertions, Indian nations have never been treated as foreign governments, even when they asked to be.42 Further, states have immunity against tribal suits, even over an alleged breach of good faith in negotiating a gaming compact under IGRA, and comity therefore demands reciprocal immunity.43 Justice Sotomayor also argued that, contrary to Michigan’s assertions, many tribes continue to suffer from poverty and continue to rely on gaming and other commercial activities to surmount external barriers to raising revenue.44 Therefore, upholding Kiowa was a matter not only of good law, but also of good policy.
Justice Thomas dissented.45 He argued that Kiowa was a problematic and unsupported extension of tribal immunity doctrine, which itself arose “almost by accident.”46 Doctrinally, tribal sovereignty is not like that of foreign sovereigns because foreign sovereign immunity does not apply “of its own force in the courts of another sovereign.”47 In Justice Thomas’s view, tribal immunity in state and federal courts is not a result of inherent sovereignty, but rather due to federal or state law.48 Further, tribes, as domestic dependent nations, logically ought to have more limited immunity than independent sovereigns and states.49 Justice Thomas also rejected Justice Sotomayor’s policy reasoning, as the Kiowa Court had stated that “tribal immunity extends beyond what is needed to safeguard tribal self-governance.”50
Justice Thomas then addressed the majority’s arguments in favor of upholding Kiowa out of deference to Congress and stare decisis. He argued that stare decisis can be rejected where “decisions are unworkable or are badly reasoned.”51 Kiowa was unworkable because tribes now manage extensive commercial activities52 and tribal immunity could prevent the “only feasible legal remedy” available against a tribal business.53 Further, Justice Thomas expressed concern that some unsavory entities may escape state regulation by arranging to share profits with tribes in exchange for using tribal immunity.54
Justice Thomas also criticized the majority’s claim that its decision defers to Congress’s power over tribal sovereignty.55 Congress had never addressed the issue, and taking its silence on court-created doctrine as tacit approval would be tantamount to allowing codification of a law without bicameral support and presidential approval.56 Lastly, overturning Kiowa would not overturn a long line of subsequent case law, as only one Supreme Court decision had mentioned Kiowa, and then only in dicta.57
In Bay Mills, the Court reaffirmed the doctrine of tribal immunity, alleviating tribes’ fears that their immunity would be abrogated.58 While the Court’s holding is correct and consistent with its own precedent and congressional policy on tribal sovereignty, the opinion fails to resolve the underlying territorial dispute and instead leaves the issue up to state governments and state courts to resolve. By listing alternative remedies under state law, the Court’s dicta suggest that state courts, as part of their adjudication of individual enforcement actions, may resolve the underlying legal disputes between tribes and states about the extent of tribal territory even where federal courts cannot. Such state power is inconsistent with both recent congressional policy favoring tribal development and much of the Court’s own jurisprudence.
By refusing to overturn Kiowa and maintaining the broad contours of tribal immunity relied upon by private actors and courts, the Court’s holding maintains the Court’s longstanding precedent regarding tribal immunity.59 Tribal immunity began as a recognition that Indian tribes were nations existing as “distinct, independent political communities, retaining their original natural rights” except as limited by the doctrine of discovery and tribal treaties with the federal government.60 Tribal immunity remained largely unchanged even as the Supreme Court limited other tribal powers.61
Maintaining the doctrine of tribal sovereign immunity is important, as there has been widespread reliance on Kiowa’s interpretation oftribal immunity. Though Justice Thomas observed that the Court only once discussed tribal immunity after Kiowa, a multitude of lower courts have relied on the case to uphold tribal immunity for tribal businesses, including off-reservation businesses.62 Indian commercial entities have themselves also relied on tribal immunity.63 Even where there has been no express reliance, parties doing business with Indian tribes have negotiated under the awareness of tribal immunity — in fact, Michigan’s compact with Bay Mills included an express acknowledgement of immunity.64 In other agreements, Indian tribes have waived their immunity,65 suggesting that their counterparties already account for its existence during negotiations.
Tribal immunity is also consistent with congressional policy. Courts and commentators alike have recognized that the principles of tribal sovereignty, including tribal immunity, are crucial to enhancing the economic welfare and self-sufficiency of Indian tribes.66 In IGRA, Congress explicitly stated its goal as “promot[ing] tribal economic development, tribal self-sufficiency, and strong tribal government.”67 Given congressional statements justifying tribal sovereignty, including tribal immunity, for economic purposes, as well as Congress’s refusal to broadly limit existing Court doctrine on tribal immunity,68 it is not entirely accurate to declare tribal immunity merely a judge-made doctrine. Rather, tribal immunity is a doctrine that originally arose out of the Court’s deference to congressional power over Indian affairs, and its continued vitality rests with Congress.69
Despite the Court’s decision to uphold tribal immunity, its opinion is potentially problematic for tribes. The issue is not how the Court answered the question on which it granted certiorari, but its comfort with allowing states, through individual enforcement actions, to provide the primary venue in which tribes and states resolve their differences over whether state law applies to a tribal business. While the Court may have seen this as a way to assuage its doubts regarding the wisdom of tribal immunity,70 such a view is in tension with a major underlying justification for tribal immunity — exclusive federal control over relationships between the United States and Indian tribes — and has negative policy implications.
The Bay Mills opinion acknowledges that it leaves it to states to decide where and when the federal IGRA applies. This places tribal interests under greater state control and moves away from both Congress’s recent policies in favor of greater tribal self-determination and much of the Court’s own doctrine. The idea that tribal affairs are subject to exclusive federal control was first established by the Marshall trilogy of Indian-law decisions in the early nineteenth century.71 In the last of those three cases, Chief Justice Marshall held that the Constitution’s Indian Commerce Clause “comprehend[s] all that is required for the regulation of our intercourse with the Indians.”72 By the mid- to late twentieth century, the Court had moved away from this philosophy, for example by allowing states to reach into some tribal affairs where state action did not discriminate against the regulated group and was not precluded by federal law.73 Recently, however, Congress has signaled that it favors a view of tribal sovereignty that is more state-like, such as by partially affirming tribal criminal jurisdiction over non-Indians.74 The Court has followed — where the Court had previously weighed state interests in activities on tribal land against tribal interests to determine whether to allow state regulation, its more recent cases have placed greater emphasis on categorical rules establishing the boundaries of exclusive tribal sovereignty.75
The Court’s emphasis on state enforcement against individuals is also bad policy, with potential negative consequences for individuals and for tribes. Individual defendants are less likely than tribes to have the resources to effectively defend against the state.76 Further, tribes might not be able to intervene to defend their employees — at least one court has held that a tribe could not join a suit even when the outcome affected the status of its casino and IGRA compact with the state.77 Thus, the greater disparity between a state and individual tribal members may actually give the state a greater advantage in pursuing its interpretations of tribal rights than a suit against a tribe in the absence of tribal immunity. Even if a tribe could intervene or otherwise help cover its members’ legal costs, the greater number of cases that would result from state enforcement against individuals may drain tribal resources. Tribes may also have trouble pursuing declaratory actions to protect their officers and employees from state enforcement.78 Therefore, if a state acts against tribal individuals to enforce its side of a legal disagreement with a tribe, tribes may have no legal avenue except to defend their members against the enforcement actions in state court.79 The resulting risk of individual liability for tribal members may have chilling effects on their willingness to participate in off-reservation tribal enterprises, which harms their tribes’ development efforts.80 Lastly, Bay Mills’s lack of guidance on how to resolve the underlying dispute over what qualifies as Indian lands risks creating confusing and conflicting precedent in lower courts that varies tribe-by-tribe or business-by-business, which would leave tribes without a reliable basis for predicting whether their off-reservation businesses would be considered legal.81
State control also subjects tribes to greater pressure from local public opinion on their activities,82 a particular concern for tribes still bootstrapping themselves out of poverty. While many current tribe-affiliated businesses are considered unsavory, including both casinos and payday lenders, tribes have sponsored such activities in part due to their need for revenue. With further economic development, some tribes have been able to build less controversial businesses, such as hotels and construction companies.83 Thus, the delegation of legal resolution of state-tribe disputes to the states may hinder Indian tribes’ ongoing attempts to develop sufficiently to expand into more mainstream businesses.
Tribes obtained their desired outcome in Bay Mills, but the Court’s positive portrayal of state-specific enforcement against tribal individuals suggests a great deal of sympathy for state power, even against businesses that a tribe believes lie within its own borders. As tribes increasingly attempt to reclaim historical lands for commercial and other purposes, territorial disputes will become an increasing source of tension between states and tribes. Though the Court’s endorsement of state enforcement in such disputes was dicta, its opinion signals its willingness to allow state law and courts to serve as the primary battleground for future territorial disputes.