Monday, December 2, 2013

Reconsidering Tribal Sovereign Immunity

The Supreme Court today heard oral arguments in Michigan v. Bay Mills Indian Community, the case asking whether a Native American Indian tribe enjoys tribal sovereign immunity against a state's suit against it for operating an illegal casino outside of Indian lands.

One thing seemed clear: the Court is prepared to reconsider the scope of tribal sovereign immunity.

One problem is the odd result under the Tribe's position that a state could sue a tribe for operating a casino on its lands, but not off its lands.  The Tribe's position is that the state has a number of other ways to regulate a casino outside Indian lands, short of a suit against the Tribe, which would require relinquishing tribal sovereign immunity.  For example, the state could deal with the problem under the required compact between the state and the Tribe; it could sue Tribal officials for injunctive relief under an Ex Parte Young theory; the state could prosecute individuals who work at or frequent the casino; or it could get the federal government to enforce federal law against an illegal, off-Indian land casino.  But it's not clear that any of these alternatives would be effective--and the Court seemed skeptical of each of them.  In other words, practically speaking, relinquishing tribal sovereign immunity may be the only way that the state could regulate an off-Indian land casino.  (The Tribe and federal government both noted that the casino isn't currently operating--that it's waiting for a defiinitive answer to the question whether it can operate legally.)

At the end of the day, this problem may come down to the state's ability to collect money damages--something it can't do if the Tribe enjoys tribal sovereign immunity.  Justice Kagan proposed this modification to tribal sovereign immunity to the Tribe's attorney, Neal Katyal:

JUSTICE KAGAN: Mr. Katyal, what is the difference--the State can really--it can shut down these gambling operations easily if it's off Indian lands.  What the State can't do is get any kind of damages or money remedies; is't that really the difference?

MR. KATYAL: I do think so.  I think that's--I think that that's underlying some of this, absolutely.

JUSTICE KAGAN: Maybe that's an important difference.  I mean, maybe we should give the State the ability to collect damages.

Justice Kennedy came at it from a different angle, the problem with the definition of the land where the casino is located:

But if the tribe takes such an obscure position, such a changing position, as to whether or not we are dealing with . . . Indian land, maybe that's a reason why we should confine and limit [tribal immunity as defined in] Kiowa so that it doesn't apply to Indian gaming and we won't have this problem.

Another problem is the odd result that under the Tribe's theory a Native American Indian tribe would enjoy wider sovereign immunity than other states and foreign sovereigns.  Chief Justice Roberts put this fine point on the problem:

[Native American Indian tribes are] [d]ependent sovereigns, which is surprising that the scope of their immunity exceeds that of States or foreign sovereigns.

Combining the two problems, Justice Ginsburg proposed this to the Deputy Solicitor General:

Mr. Kneedler, you went through the development of foreign sovereign immunity, and whether the courts were influenced by the government, it was the courts that recognized this distinction between commercial activity and governmental activity.

Why couldn't the court extend that same distinction to Indian tribes and say it makes sense in the foreign country context, it also makes sense in the context of the tribes, to distinguish commercial from governmental?

Finally, there's the problem of who decides on tribal sovereign immunity.  Both the Tribe and the federal government argues that Congress should decide.  But that didn't sit well with the Court.  Justice Ginsburg said this on the question:

Mr. Katyal, isn't it odd to say that when this is the Court--the doctrine of tribal immunity is something that was announced by this Court.  Congress never passed a law that said the tribes have immunity.  It's all this Court.  And then you say what this Court made only Congress can unmake.  That seems strange to me.

In all, it seems likely that the Court will redefine the scope of tribal sovereign immunity.  It's less clear exactly how: whether the Court will carve out a limited exception to tribal sovereign immunity for off-Indian land commercial activity, or whether it will more substantially restrict tribal sovereign immunity.

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The legal concept of "[d]ependent sovereigns" answers any controversy suggested in this case. I believe there is no such thing, as it is a legal absurdity, like "military intelligence" of "jumbo shrimp". The question of tribal sovereignty was decided in the Jicarilla Apache decision, giving Congress total control of rights assigned to so called tribal governments, even to that of reducing US constitutional rights. The correct question is most likely not before the court. What of those who have not ceded their rights or treaty rights to foreign administration, that of the US!

Posted by: Kai landow | Dec 4, 2013 6:22:51 AM

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