Supreme Court: Tribal Sovereignty

The surprise of the day (going by SCOTUSBLOG live blogging at least) was a 5-4 tribal sovereignty case. Native American legal matters is an area of interest for yours truly. As that blog noted (as here, in effect, it is seen as a limited win for the tribes):

The Court acknowledged the “apparent anomaly” in the law: although states can sue tribes for illegal gaming activity on Indian lands, they cannot sue them for the same activity off Indian lands. “But,” the Court continued, “this Court does not revise legislation . . . just because the text as written creates an apparent anomaly as to some subject it does not address.” And – significantly – even if the state can’t sue a tribe for off-reservation illegal gaming, it still “has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory.” Most state laws will apply to Indians off reservation, for example: Michigan “could, in the first instance, deny a license” for an off-reservation casino; if the tribe went ahead with the project anyway, it could sue tribal officials to stop the gaming activity and, if necessary, invoke its criminal laws. Moreover, states also could seek a waiver to allow lawsuits for off-reservation gaming activity as part of its compact with the tribe regarding on-reservation gaming.

Justice Kagan wrote the opinion on precedent/judicial restraint grounds (Congress has power over Indian affairs), Scalia dissented separately to admit error in joining a key precedent, Thomas wrote the primary dissent and Ginsburg briefly noted she was joining with the proviso that she thought state immunity has gone too far too. I'm sympathetic, but as Sotomayor notes, it isn't really fair to only have one. If immunity is on the table, let's be consistent -- both sides should have it. And, congressional discretion provides a balancing of interests that the alleged constitutional state immunity bar does not so readily provide.

In the earlier case cited, Stevens (with Ginsburg/Thomas) criticized the immunity provided to tribes on three grounds -- it was a wrong-minded common law rule, it should be left to Congress and off reservation* activity should not be covered. As shown in his proposed amendments (see comments; though criticism has noted consistency would apply it to the federal government too), he wants to end broad constitutionally based immunity largely on fairness grounds:

Third, the rule is unjust. This is especially so with respect to tort victims who have no opportunity to negotiate for a waiver of sovereign immunity; yet nothing in the Court’s reasoning limits the rule to lawsuits arising out of voluntary contractual relationships. Governments, like individuals, should pay their debts and should be held accountable for their unlawful, injurious conduct.

The provision here is congressionally imposed. The opinion notes states have ways to avoid the immunity bar. As to innocent victims, it also noted in a footnote:

We have never, for example, specifically addressed (nor, so far as we are aware, has Congress) whether immunity should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct.

As to the off reservation immunity aspect, bad policy or not, Congress can balance various concerns here. Justice Sotomayor provides the Native American voice, so to speak here, including this argument:

Tribes are ever to become more self-sufficient, and fund a more substantial portion of their own governmental functions, commercial enterprises will likely be a central means of achieving that goal.

The previous ruling offered the other side:

There are reasons to doubt the wisdom of perpetuating the doctrine. At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States. In our interdependent and mobile society, however, tribal immunity extends beyond what is needed to safeguard tribal self-governance.

Congress pursuant to its power over Indian commerce has the power here to balance things out. As the majority (joined by Roberts and Kennedy) noted: "We ruled that way for a single, simple reason: because it is fundamentally Congress’s job, not ours, to determine whether or how to limit tribal immunity." "Fundamentally" doesn't mean "completely," so perhaps there is some wiggle room there. But, as Kagan said when using a gambling reference against the state's claims, the argument for the courts to strike down discretionary partial immunity here "comes up snake eyes."

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* Justice Ginsburg joined Thomas' (yes, she didn't use the second "s"!) dissent with one "reservation" and noted that she does not think the majority's opinion should have "staying power."