Federal Indian Law - Tribal Sovereign Immunity

Harvard Law Review, November 2014 | Go to article overview

Federal Indian Law - Tribal Sovereign Immunity


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 Act (7) (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 abrogation (22) 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. …

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