Monday, December 2, 2013

Do Tribes Have Sovereign Immunity?

As I write this Monday morning the Supreme Court is hearing oral arguments in Michigan v. Bay Mills Indian Community, a dispute that arises out of the tribe's attempt to establish a casino on purchased land, over the objections of the State of Michigan. The tribe is asserting "sovereign immunity" to suits in federal court, a claim that might be decided on narrow statutory grounds, but that might oblige the Court to address the constitutional status of Indian nations, a question governed by confused and often contradictory precedents. 
There are two "sovereign immunity" doctrines. The first was a common-law doctrine that Holmes explained in 1907, Kawananakoa v. Polybank. This was simply the practical result of positive law: property rights were created by law, and so the only claims that could be asserted in a court were those that the lawmaker had created. It followed that a government could not be sued in its own courts without its permission. This "sovereign immunity" rubric does not apply to this proceeding, since Michigan is suing a tribe in federal court, and the claims it asserts are created by federal law, not Indian law. The second sort of "sovereign immunity" is a constitutional doctrine discovered by the Supreme Court in the structure of the federal system, in which state governments are accorded a dignity inconsistent with suits by private individuals in federal courts, unless Congress has granted express permission to extend federal court jurisdiction to such suits. (I am not going to cite precedents, which are numerous, but it is interesting to note that this modern doctrine grows out of suits brought under the Indian Gaming Regulatory Act, which governs the present suit as well.) The question therefore might be posed as a constitutional claim, that the sovereign Indian nations are entitled to the same dignity as state governments, and accordingly are immune from suits in federal court, except when Congress expressly authorizes them. Victory for the Bay Mills Community would help define the inherent sovereignty of Indian nations in our federal system, a sovereignty that as all law students learn was defined almost two hundred years ago by Chief Justice John Marshall, who thought the United States of America was an empire in which Indian tribes held a subordinate and dependent status as domestic, rather than foreign, nations.