Michigan v. Bay Mills Indian Community , 134 S. Ct. 2024 ( 2014 )

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MICHIGAN v. BAY MILLS INDIAN COMMUNITY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 12–515. Argued December 2, 2013—Decided May 27, 2014
The State of Michigan, petitioner, entered into a compact with respond-
ent Bay Mills Indian Community pursuant to the Indian Gaming
Regulatory Act (IGRA). See 25 U.S. C. §2710(d)(1)(C). The compact
authorizes Bay Mills to conduct class III gaming activities (i.e., to op-
erate a casino) on Indian lands located within the State’s borders, but
prohibits it from doing so outside that territory. Bay Mills later
opened a second casino on land it had purchased through a congres-
sionally established land trust. The Tribe claimed it could operate a
casino there because the property qualified as Indian land. Michigan
disagreed and sued the Tribe under §2710(d)(7)(A)(ii), which allows a
State to enjoin “class III gaming activity located on Indian lands and
conducted in violation of any Tribal-State compact.” The District
Court granted the injunction, but the Sixth Circuit vacated. It held
that tribal sovereign immunity barred the suit unless Congress pro-
vided otherwise, and that §2710(d)(7)(A)(ii) only authorized suits to
enjoin gaming activity located “on Indian lands,” whereas Michigan’s
complaint alleged the casino was outside such territory.
Held: Michigan’s suit against Bay Mills is barred by tribal sovereign
immunity. Pp. 4–21.
(a) As “ ‘domestic dependent nations,’ ” Indian tribes exercise “in-
herent sovereign authority” that is subject to plenary control by Con-
gress. Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe of
Okla., 498 U.S. 505, 509. Unless and “until Congress acts, the tribes
retain” their historic sovereign authority. United States v. Wheeler,
435 U.S. 313, 323. Among the core aspects of sovereignty that tribes
possess—subject to congressional action—is the “common-law im-
munity from suit traditionally enjoyed by sovereign powers.” Santa
Clara Pueblo v. Martinez, 436 U.S. 49, 58. That immunity applies
2 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
Syllabus
whether a suit is brought by a State, see, e.g., Puyallup Tribe, Inc. v.
Department of Game of Wash., 433 U.S. 165, or arises from a tribe’s
commercial activities off Indian lands, see Kiowa Tribe of Okla. v.
Manufacturing Technologies, Inc., 523 U.S. 751. Therefore, unless
Congress has “unequivocally” authorized Michigan’s suit, C & L En-
terprises, Inc. v. Citizen Band Potawatomi Tribe of Okla., 532 U.S.
411, 418, it must be dismissed. Pp. 4–8.
(b) IGRA’s plain terms do not authorize this suit. Section
2710(d)(7)(A)(ii) partially abrogates tribal immunity with respect to
class III gaming located “on Indian lands,” but the very premise of
Michigan’s suit is that Bay Mills’ casino is unlawful because it is out-
side Indian lands. Michigan argues that the casino is authorized, li-
censed, and operated from within the reservation, and that such ad-
ministrative action constitutes “class III gaming activity.” However,
numerous other IGRA provisions make clear that “class III gaming
activity” refers to the gambling that goes on in a casino, not the off-
site licensing of such games. See, e.g., §§2710(d)(3)(C)(i), (d)(9).
IGRA’s history and design also explain why Congress would have au-
thorized a State to enjoin illegal tribal gaming on Indian lands but
not on lands subject to the State’s own sovereign jurisdiction. Con-
gress adopted IGRA in response to California v. Cabazon Band of
Mission Indians, 480 U.S. 202, 221–222, which held that States
lacked regulatory authority over gaming on Indian lands but left in-
tact States’ regulatory power over tribal gaming outside Indian terri-
tory. A State therefore has many tools to enforce its law on state
land that it does not possess in Indian territory, including, e.g., bring-
ing a civil or criminal action against tribal officials rather than the
tribe itself for conducting illegal gaming. A State can also use its lev-
erage in negotiating an IGRA compact to bargain for a waiver of the
tribe’s immunity. Pp. 8–14.
(c) Michigan urges the Court to overrule Kiowa and hold that tribal
immunity does not apply to commercial activity outside Indian terri-
tory. However, “any departure” from precedent “demands special jus-
tification,” Arizona v. Rumsey, 467 U.S. 203, 212, and Michigan of-
fers nothing more than arguments already rejected in Kiowa. Kiowa
rejected these arguments because it is fundamentally Congress’s job
to determine whether or how to limit tribal immunity; Congress had
restricted tribal immunity “in limited circumstances” like
§2710(d)(7)(A)(ii), while “in other statutes” declaring an “intention
not to alter it.” 523 U.S., at 758. Kiowa therefore chose to “defer to
the role Congress may wish to exercise in this important judgment.”
Ibid. Congress has since reflected on Kiowa and decided to retain
tribal immunity in a case like this. Having held that the issue is up
to Congress, the Court cannot reverse itself now simply because some
Cite as: 572 U. S. ____ (2014) 3
Syllabus
may think Congress’s conclusion wrong. Pp. 14–21.
695 F.3d 406, affirmed and remanded.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, and SOTOMAYOR, JJ., joined. SOTOMAYOR,
J., filed a concurring opinion. SCALIA, J., filed a dissenting opinion.
THOMAS, J., filed a dissenting opinion, in which SCALIA, GINSBURG, and
ALITO, JJ., joined. GINSBURG, J., filed a dissenting opinion.
Cite as: 572 U. S. ____ (2014) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–515
_________________
MICHIGAN, PETITIONER v. BAY MILLS INDIAN
COMMUNITY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[May 27, 2014]
JUSTICE KAGAN delivered the opinion of the Court.
The question in this case is whether tribal sovereign
immunity bars Michigan’s suit against the Bay Mills
Indian Community for opening a casino outside Indian
lands. We hold that immunity protects Bay Mills from
this legal action. Congress has not abrogated tribal sover-
eign immunity from a State’s suit to enjoin gaming off a
reservation or other Indian lands. And we decline to
revisit our prior decisions holding that, absent such an
abrogation (or a waiver), Indian tribes have immunity
even when a suit arises from off-reservation commercial
activity. Michigan must therefore resort to other mecha-
nisms, including legal actions against the responsible
individuals, to resolve this dispute.
I
The Indian Gaming Regulatory Act (IGRA or Act), 102
Stat. 2467, 25 U.S. C. §2701 et seq., creates a framework
for regulating gaming activity on Indian lands.1 See
——————
1 The Act defines “Indian lands” as “(A) all lands within the limits of
any Indian reservation; and (B) any lands title to which is either held
2 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
Opinion of the Court
§2702(3) (describing the statute’s purpose as establishing
“regulatory authority . . . [and] standards for gaming on
Indian lands”). The Act divides gaming into three classes.
Class III gaming, the most closely regulated and the kind
involved here, includes casino games, slot machines, and
horse racing. See §2703(8). A tribe may conduct such
gaming on Indian lands only pursuant to, and in compli-
ance with, a compact it has negotiated with the sur-
rounding State. See §2710(d)(1)(C). A compact typically
prescribes rules for operating gaming, allocates law
enforcement authority between the tribe and State, and
provides remedies for breach of the agreement’s terms.
See §§2710(d)(3)(C)(ii), (v). Notable here, IGRA itself
authorizes a State to bring suit against a tribe for certain
conduct violating a compact: Specifically, §2710(d)(7)(A)(ii)
allows a State to sue in federal court to “enjoin a class III
gaming activity located on Indian lands and conducted in
violation of any Tribal-State compact . . . that is in effect.”
Pursuant to the Act, Michigan and Bay Mills, a federally
recognized Indian Tribe, entered into a compact in 1993.
See App. to Pet. for Cert. 73a–96a. The compact empow-
ers Bay Mills to conduct class III gaming on “Indian
lands”; conversely, it prohibits the Tribe from doing so
outside that territory. Id., at 78a, 83a; see n. 1, supra.
The compact also contains a dispute resolution mecha-
nism, which sends to arbitration any contractual differ-
ences the parties cannot settle on their own. See App. to
Pet. for Cert. 89a–90a. A provision within that arbitration
section states that “[n]othing in this Compact shall be
deemed a waiver” of either the Tribe’s or the State’s sover-
eign immunity. Id., at 90a. Since entering into the com-
——————
in trust by the United States for the benefit of any Indian tribe or
individual[,] or held by any Indian tribe or individual subject to re-
striction by the United States against alienation and over which an
Indian tribe exercises governmental power.” §2703(4).
Cite as: 572 U. S. ____ (2014) 3
Opinion of the Court
pact, Bay Mills has operated class III gaming, as author-
ized, on its reservation in Michigan’s Upper Peninsula.
In 2010, Bay Mills opened another class III gaming
facility in Vanderbilt, a small village in Michigan’s Lower
Peninsula about 125 miles from the Tribe’s reservation.
Bay Mills had bought the Vanderbilt property with ac-
crued interest from a federal appropriation, which Con-
gress had made to compensate the Tribe for 19th-century
takings of its ancestral lands. See Michigan Indian Land
Claims Settlement Act, 111 Stat. 2652. Congress had
directed that a portion of the appropriated funds go into a
“Land Trust” whose earnings the Tribe was to use to
improve or purchase property. According to the legisla-
tion, any land so acquired “shall be held as Indian lands
are held.” §107(a)(3), id., at 2658. Citing that provision,
Bay Mills contended that the Vanderbilt property was
“Indian land” under IGRA and the compact; and the Tribe
thus claimed authority to operate a casino there.
Michigan disagreed: The State sued Bay Mills in federal
court to enjoin operation of the new casino, alleging that
the facility violated IGRA and the compact because it was
located outside Indian lands. The same day Michigan filed
suit, the federal Department of the Interior issued an
opinion concluding (as the State’s complaint said) that the
Tribe’s use of Land Trust earnings to purchase the Van-
derbilt property did not convert it into Indian territory.
See App. 69–101. The District Court entered a prelimi-
nary injunction against Bay Mills, which promptly shut
down the new casino and took an interlocutory appeal.
While that appeal was pending, Michigan amended its
complaint to join various tribal officials as defendants, as
well as to add state law and federal common law claims.
The Court of Appeals for the Sixth Circuit then vacated
the injunction, holding (among other things) that tribal
sovereign immunity barred Michigan’s suit against Bay
Mills unless Congress provided otherwise, and that
4 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
Opinion of the Court
§2710(d)(7)(A)(ii) did not authorize the action. See 695
F.3d 406, 413–415 (2012). That provision of IGRA, the
Sixth Circuit reasoned, permitted a suit against the Tribe
to enjoin only gaming activity located on Indian lands,
whereas the State’s complaint alleged that the Vanderbilt
casino was outside such territory. See id., at 412.2 Ac-
cordingly, the Court of Appeals concluded that Michigan
could proceed, if at all, solely against the individual de-
fendants, and it remanded to the District Court to consider
those claims. See id., at 416–417.3 Although no injunc-
tion is currently in effect, Bay Mills has not reopened the
Vanderbilt casino.
We granted certiorari to consider whether tribal sover-
eign immunity bars Michigan’s suit against Bay Mills, 570
U. S. __ (2013), and we now affirm the Court of Appeals’
judgment.
II
Indian tribes are “ ‘domestic dependent nations’ ” that
exercise “inherent sovereign authority.” Oklahoma Tax
——————
2 TheSixth Circuit framed part of its analysis in jurisdictional terms,
holding that the District Court had no authority to consider Michigan’s
IGRA claim because §2710(d)(7)(A)(ii) provides federal jurisdiction only
over suits to enjoin gaming on Indian lands (and Michigan’s suit was
not that). See 695 F.3d, at 412–413. That reasoning is wrong, as all
parties agree. See Brief for Michigan 22–25; Brief for Bay Mills 23–24;
Brief for United States as Amicus Curiae 16–17. The general federal-
question statute, 28 U.S. C. §1331, gives a district court subject matter
jurisdiction to decide any claim alleging a violation of IGRA. Nothing
in §2710(d)(7)(A)(ii) or any other provision of IGRA limits that grant of
jurisdiction (although those provisions may indicate that a party has no
statutory right of action). See Verizon Md. Inc. v. Public Serv. Comm’n
of Md., 535 U.S. 635, 643–644 (2002).
3 The Court of Appeals’ decision applied not only to Michigan’s case,
but also to a consolidated case brought by the Little Traverse Bay
Bands of Odawa Indians, which operates a casino about 40 miles from
the Vanderbilt property. Little Traverse subsequently dismissed its
suit, rather than seek review in this Court.
Cite as: 572 U. S. ____ (2014) 5
Opinion of the Court
Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498
U.S. 505, 509 (1991) (Potawatomi) (quoting Cherokee
Nation v. Georgia, 5 Pet. 1, 17 (1831)). As dependents, the
tribes are subject to plenary control by Congress. See
United States v. Lara, 541 U.S. 193, 200 (2004) (“[T]he
Constitution grants Congress” powers “we have consist-
ently described as ‘plenary and exclusive’ ” to “legislate in
respect to Indian tribes”). And yet they remain “separate
sovereigns pre-existing the Constitution.” Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 56 (1978). Thus, unless
and “until Congress acts, the tribes retain” their historic
sovereign authority. United States v. Wheeler, 435 U.S.
313, 323 (1978).
Among the core aspects of sovereignty that tribes pos-
sess—subject, again, to congressional action—is the
“common-law immunity from suit traditionally enjoyed by
sovereign powers.” Santa Clara Pueblo, 436 U.S., at 58.
That immunity, we have explained, is “a necessary corol-
lary to Indian sovereignty and self-governance.” Three
Affiliated Tribes of Fort Berthold Reservation v. Wold
Engineering, P. C., 476 U.S. 877, 890 (1986); cf. The Fed-
eralist No. 81, p. 511 (B. Wright ed. 1961) (A. Hamilton)
(It is “inherent in the nature of sovereignty not to be ame-
nable” to suit without consent). And the qualified nature
of Indian sovereignty modifies that principle only by plac-
ing a tribe’s immunity, like its other governmental powers
and attributes, in Congress’s hands. See United States v.
United States Fidelity & Guaranty Co., 309 U.S. 506, 512
(1940) (USF&G) (“It is as though the immunity which was
theirs as sovereigns passed to the United States for their
benefit”). Thus, we have time and again treated the “doc-
trine of tribal immunity [as] settled law” and dismissed
any suit against a tribe absent congressional authorization
(or a waiver). Kiowa Tribe of Okla. v. Manufacturing
Technologies, Inc., 523 U.S. 751, 756 (1998).
In doing so, we have held that tribal immunity applies
6 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
Opinion of the Court
no less to suits brought by States (including in their own
courts) than to those by individuals. First in Puyallup
Tribe, Inc. v. Department of Game of Wash., 433 U.S. 165,
167–168, 172–173 (1977), and then again in Potawatomi,
498 U.S., at 509–510, we barred a State seeking to en-
force its laws from filing suit against a tribe, rejecting
arguments grounded in the State’s own sovereignty. In
each case, we said a State must resort to other remedies,
even if they would be less “efficient.” Id., at 514; see
Kiowa, 523 U.S., at 755 (“There is a difference between
the right to demand compliance with state laws and the
means available to enforce them”). That is because, as we
have often stated (and contrary to the dissent’s novel
pronouncement, see post, at 3 (opinion of THOMAS, J.)
(hereinafter the dissent)), tribal immunity “is a matter of
federal law and is not subject to diminution by the States.”
523 U.S., at 756 (citing Three Affiliated Tribes, 476 U.S.,
at 891; Washington v. Confederated Tribes of Colville
Reservation, 447 U.S. 134, 154 (1980)). Or as we else-
where explained: While each State at the Constitutional
Convention surrendered its immunity from suit by sister
States, “it would be absurd to suggest that the tribes”—at
a conference “to which they were not even parties”—
similarly ceded their immunity against state-initiated
suits. Blatchford v. Native Village of Noatak, 501 U.S.
775, 782 (1991).
Equally important here, we declined in Kiowa to make
any exception for suits arising from a tribe’s commercial
activities, even when they take place off Indian lands. In
that case, a private party sued a tribe in state court for
defaulting on a promissory note. The plaintiff asked this
Court to confine tribal immunity to suits involving conduct
on “reservations or to noncommercial activities.” 523
U.S., at 758. We said no. We listed Puyallup, Potawa-
tomi, and USF&G as precedents applying immunity to a
suit predicated on a tribe’s commercial conduct—
Cite as: 572 U. S. ____ (2014) 7
Opinion of the Court
respectively, fishing, selling cigarettes, and leasing coal
mines. 523 U.S., at 754–755. Too, we noted that
Puyallup involved enterprise “both on and off [the Tribe’s]
reservation.” 523 U.S., at 754 (quoting 433 U.S., at 167).
“[O]ur precedents,” we thus concluded, have not previously
“drawn the[ ] distinctions” the plaintiff pressed in the case.
523 U.S., at 755. They had established a broad principle,
from which we thought it improper suddenly to start
carving out exceptions. Rather, we opted to “defer” to
Congress about whether to abrogate tribal immunity for
off-reservation commercial conduct. Id., at 758, 760; see
infra, at 17–18.
Our decisions establish as well that such a congressional
decision must be clear. The baseline position, we have
often held, is tribal immunity; and “[t]o abrogate [such]
immunity, Congress must ‘unequivocally’ express that
purpose.” C & L Enterprises, Inc. v. Citizen Band Pota-
watomi Tribe of Okla., 532 U.S. 411, 418 (2001) (quoting
Santa Clara Pueblo, 436 U.S., at 58). That rule of con-
struction reflects an enduring principle of Indian law:
Although Congress has plenary authority over tribes,
courts will not lightly assume that Congress in fact in-
tends to undermine Indian self-government. See, e.g., id.,
at 58–60; Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18
(1987); United States v. Dion, 476 U.S. 734, 738–739
(1986).
The upshot is this: Unless Congress has authorized
Michigan’s suit, our precedents demand that it be dis-
missed.4 And so Michigan, naturally enough, makes two
arguments: first, that IGRA indeed abrogates the Tribe’s
immunity from the State’s suit; and second, that if it
does not, we should revisit—and reverse—our decision in
——————
4 Michigan does not argue here that Bay Mills waived its immunity
from suit. Recall that the compact expressly preserves both the Tribe’s
and the State’s sovereign immunity. See supra, at 2.
8 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
Opinion of the Court
Kiowa, so that tribal immunity no longer applies to claims
arising from commercial activity outside Indian lands. We
consider—and reject—each contention in turn.
III
IGRA partially abrogates tribal sovereign immunity in
§2710(d)(7)(A)(ii)—but this case, viewed most naturally,
falls outside that term’s ambit. The provision, as noted
above, authorizes a State to sue a tribe to “enjoin a class
III gaming activity located on Indian lands and conducted
in violation of any Tribal-State compact.” See supra, at 2;
Kiowa, 523 U.S., at 758 (citing the provision as an exam-
ple of legislation “restrict[ing] tribal immunity from suit in
limited circumstances”). A key phrase in that abrogation
is “on Indian lands”—three words reflecting IGRA’s over-
all scope (and repeated some two dozen times in the stat-
ute). A State’s suit to enjoin gaming activity on Indian
lands (assuming other requirements are met, see n. 6,
infra) falls within §2710(d)(7)(A)(ii); a similar suit to stop
gaming activity off Indian lands does not. And that cre-
ates a fundamental problem for Michigan. After all, the
very premise of this suit—the reason Michigan thinks Bay
Mills is acting unlawfully—is that the Vanderbilt casino is
outside Indian lands. See App. to Pet. for Cert. 59a–60a.
By dint of that theory, a suit to enjoin gaming in Vander-
bilt is correspondingly outside §2710(d)(7)(A)(ii)’s abroga-
tion of immunity.
Michigan first attempts to fit this suit within
§2710(d)(7)(A)(ii) by relocating the “class III gaming activ-
ity” to which it is objecting. True enough, Michigan states,
the Vanderbilt casino lies outside Indian lands. But Bay
Mills “authorized, licensed, and operated” that casino from
within its own reservation. Brief for Michigan 20. Accord-
ing to the State, that necessary administrative action—no
less than, say, dealing craps—is “class III gaming activ-
ity,” and because it occurred on Indian land, this suit to
Cite as: 572 U. S. ____ (2014) 9
Opinion of the Court
enjoin it can go forward.
But that argument comes up snake eyes, because nu-
merous provisions of IGRA show that “class III gaming
activity” means just what it sounds like—the stuff in-
volved in playing class III games. For example,
§2710(d)(3)(C)(i) refers to “the licensing and regulation of
[a class III gaming] activity” and §2710(d)(9) concerns the
“operation of a class III gaming activity.” Those phrases
make perfect sense if “class III gaming activity” is what
goes on in a casino—each roll of the dice and spin of the
wheel. But they lose all meaning if, as Michigan argues,
“class III gaming activity” refers equally to the off-site
licensing or operation of the games. (Just plug in those
words and see what happens.) See also §§2710(b)(2)(A),
(b)(4)(A), (c)(4), (d)(1)(A) (similarly referring to class II or
III “gaming activity”). The same holds true throughout
the statute. Section 2717(a)(1) specifies fees to be paid by
“each gaming operation that conducts a class II or class III
gaming activity”—signifying that the gaming activity is
the gambling in the poker hall, not the proceedings of the
off-site administrative authority. And §§2706(a)(5) and
2713(b)(1) together describe a federal agency’s power to
“clos[e] a gaming activity” for “substantial violation[s]” of
law—e.g., to shut down crooked blackjack tables, not the
tribal regulatory body meant to oversee them. Indeed,
consider IGRA’s very first finding: Many tribes, Congress
stated, “have licensed gaming activities on Indian lands,”
thereby necessitating federal regulation. §2701(1). The
“gaming activit[y]” is (once again) the gambling. And that
means §2710(d)(7)(A)(ii) does not allow Michigan’s suit
even if Bay Mills took action on its reservation to license
or oversee the Vanderbilt facility.
Stymied under §2710(d)(7)(A)(ii), Michigan next urges
us to adopt a “holistic method” of interpreting IGRA that
would allow a State to sue a tribe for illegal gaming off, no
less than on, Indian lands. Brief for Michigan 30. Michi-
10 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
Opinion of the Court
gan asks here that we consider “IGRA’s text and structure
as a whole.” Id., at 28. But (with one briefly raised excep-
tion) Michigan fails to identify any specific textual or
structural features of the statute to support its proposed
result.5 Rather, Michigan highlights a (purported) anomaly
of the statute as written: that it enables a State to sue a
tribe for illegal gaming inside, but not outside, Indian
country. “[W]hy,” Michigan queries, “would Congress
authorize a state to obtain a federal injunction against
illegal tribal gaming on Indian lands, but not on lands
subject to the state’s own sovereign jurisdiction?” Reply
Brief 1. That question has no answer, Michigan argues:
Whatever words Congress may have used in IGRA, it
could not have intended that senseless outcome. See Brief
for Michigan 28.
But this Court does not revise legislation, as Michigan
proposes, just because the text as written creates an ap-
parent anomaly as to some subject it does not address.
Truth be told, such anomalies often arise from statutes, if
——————
5 Michigan’s single reference to another statutory provision, 18
U.S. C. §1166, does not advance its argument, because that term
includes a geographical limitation similar to the one appearing in
§2710(d)(7)(A)(ii). Section 1166 makes a State’s gambling laws applica-
ble “in Indian country” as federal law, and then gives the Federal
Government “exclusive jurisdiction over criminal prosecutions” for
violating those laws. 18 U.S. C. §1166(a), (d). Michigan briefly argues
that, by negative implication, §1166 gives a State the power “to bring a
civil suit to enforce [its] anti-gambling laws in Indian country,” and
that this power applies “even when the defendant is an Indian tribe.”
Brief for Michigan 26 (emphasis added). Bay Mills and the United
States vigorously contest both those propositions, arguing that §1166
gives States no civil enforcement authority at all, much less as against
a tribe. See Brief for Bay Mills 30–31; Brief for United States as
Amicus Curiae 20–22. But that dispute is irrelevant here. Even
assuming Michigan’s double inference were valid, §1166 would still
allow a State to sue a tribe for gaming only “in Indian country.” So
Michigan’s suit, alleging that illegal gaming occurred on state lands,
could no more proceed under §1166 than under §2710(d)(7)(A)(ii).
Cite as: 572 U. S. ____ (2014) 11
Opinion of the Court
for no other reason than that Congress typically legislates
by parts—addressing one thing without examining all
others that might merit comparable treatment. Rejecting
a similar argument that a statutory anomaly (between
property and non-property taxes) made “not a whit of
sense,” we explained in one recent case that “Congress
wrote the statute it wrote”—meaning, a statute going so
far and no further. See CSX Transp., Inc. v. Alabama
Dept. of Revenue, 562 U. S. ___, ___ (2011) (slip op., at 17–
18). The same could be said of IGRA’s abrogation of tribal
immunity for gaming “on Indian lands.” This Court has
no roving license, in even ordinary cases of statutory
interpretation, to disregard clear language simply on the
view that (in Michigan’s words) Congress “must have
intended” something broader. Brief for Michigan 32. And
still less do we have that warrant when the consequence
would be to expand an abrogation of immunity, because
(as explained earlier) “Congress must ‘unequivocally’
express [its] purpose” to subject a tribe to litigation.
C & L Enterprises, 532 U.S., at 418; see supra, at 7.
In any event, IGRA’s history and design provide a more
than intelligible answer to the question Michigan poses
about why Congress would have confined a State’s author-
ity to sue a tribe as §2710(d)(7)(A)(ii) does. Congress
adopted IGRA in response to this Court’s decision in Cali-
fornia v. Cabazon Band of Mission Indians, 480 U.S. 202,
221–222 (1987), which held that States lacked any regula-
tory authority over gaming on Indian lands. Cabazon left
fully intact a State’s regulatory power over tribal gaming
outside Indian territory—which, as we will soon show, is
capacious. See infra, at 12–13. So the problem Congress
set out to address in IGRA (Cabazon’s ouster of state
authority) arose in Indian lands alone. And the solution
Congress devised, naturally enough, reflected that fact.
See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58
(1996) (“[T]he Act grants the States a power that they
12 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
Opinion of the Court
would not otherwise have, viz., some measure of author-
ity over gaming on Indian lands”). Everything—literally
everything—in IGRA affords tools (for either state or
federal officials) to regulate gaming on Indian lands, and
nowhere else. Small surprise that IGRA’s abrogation of
tribal immunity does that as well.6
And the resulting world, when considered functionally,
is not nearly so “enigma[tic]” as Michigan suggests. Reply
Brief 1. True enough, a State lacks the ability to sue a
tribe for illegal gaming when that activity occurs off the
reservation. But a State, on its own lands, has many
other powers over tribal gaming that it does not possess
(absent consent) in Indian territory. Unless federal law
provides differently, “Indians going beyond reservation
boundaries” are subject to any generally applicable state
law. See Wagnon v. Prairie Band Potawatomi Nation, 546
U.S. 95, 113 (2005) (quoting Mescalero Apache Tribe v.
Jones, 411 U.S. 145, 148 (1973)). So, for example, Michi-
gan could, in the first instance, deny a license to Bay Mills
for an off-reservation casino. See Mich. Comp. Laws Ann.
——————
6 Indeed, the statutory abrogation does not even cover all suits to
enjoin gaming on Indian lands, thus refuting the very premise of
Michigan’s argument-from-anomaly. Section 2710(d)(7)(A)(ii), recall,
allows a State to sue a tribe not for all “class III gaming activity located
on Indian lands” (as Michigan suggests), but only for such gaming as is
“conducted in violation of any Tribal-State compact . . . that is in effect.”
Accordingly, if a tribe opens a casino on Indian lands before negotiating
a compact, the surrounding State cannot sue; only the Federal Gov-
ernment can enforce the law. See 18 U.S. C. §1166(d). To be precise,
then, IGRA’s authorization of suit mirrors not the full problem Cabazon
created (a vacuum of state authority over gaming in Indian country)
but, more particularly, Congress’s “carefully crafted” compact-based
solution to that difficulty. Seminole Tribe of Fla. v. Florida, 517 U.S.
44, 73–74 (1996). So Michigan’s binary challenge—if a State can sue to
stop gaming in Indian country, why not off?—fails out of the starting
gate. In fact, a State cannot sue to enjoin all gaming in Indian country;
that gaming must, in addition, violate an agreement that the State and
tribe have mutually entered.
Cite as: 572 U. S. ____ (2014) 13
Opinion of the Court
§§432.206–432.206a (West 2001). And if Bay Mills went
ahead anyway, Michigan could bring suit against tribal
officials or employees (rather than the Tribe itself) seeking
an injunction for, say, gambling without a license. See
§432.220; see also §600.3801(1)(a) (West 2013) (designat-
ing illegal gambling facilities as public nuisances). As this
Court has stated before, analogizing to Ex parte Young,
209 U.S. 123 (1908), tribal immunity does not bar such
a suit for injunctive relief against individuals, includ-
ing tribal officers, responsible for unlawful conduct. See
Santa Clara Pueblo, 436 U.S., at 59. And to the extent
civil remedies proved inadequate, Michigan could resort to
its criminal law, prosecuting anyone who maintains—or
even frequents—an unlawful gambling establishment.
See Mich. Comp. Laws Ann. §§432.218 (West 2001),
750.303, 750.309 (West 2004). In short (and contrary to
the dissent’s unsupported assertion, see post, at 11), the
panoply of tools Michigan can use to enforce its law on its
own lands—no less than the suit it could bring on Indian
lands under §2710(d)(7)(A)(ii)—can shutter, quickly and
permanently, an illegal casino.7
Finally, if a State really wants to sue a tribe for gaming
outside Indian lands, the State need only bargain for a
waiver of immunity. Under IGRA, a State and tribe nego-
tiating a compact “may include . . . remedies for breach of
contract,” 25 U.S. C. §2710(d)(3)(C)(v)—including a provi-
sion allowing the State to bring an action against the tribe
in the circumstances presented here. States have more
——————
7 Michigan contends that these alternative remedies may be more
intrusive on, or less respectful of, tribal sovereignty than the suit it
wants to bring. See Brief for Michigan 15; Tr. of Oral Arg. 18. Bay
Mills, which presumably is better positioned to address that question,
emphatically disagrees. See id., at 32–33. And the law supports Bay
Mills’ position: Dispensing with the immunity of a sovereign for fear of
pursuing available remedies against its officers or other individuals
would upend all known principles of sovereign immunity.
14 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
Opinion of the Court
than enough leverage to obtain such terms because a tribe
cannot conduct class III gaming on its lands without a
compact, see §2710(d)(1)(C), and cannot sue to enforce a
State’s duty to negotiate a compact in good faith, see
Seminole Tribe, 517 U.S., at 47 (holding a State immune
from such suits). So as Michigan forthrightly acknowl-
edges, “a party dealing with a tribe in contract negotia-
tions has the power to protect itself by refusing to deal
absent the tribe’s waiver of sovereign immunity from suit.”
Brief for Michigan 40. And many States have taken that
path. See Brief for Seminole Tribe of Florida et al. as
Amici Curiae 12–22 (listing compacts with waivers of tribal
immunity). To be sure, Michigan did not: As noted earlier,
the compact at issue here, instead of authorizing judicial
remedies, sends disputes to arbitration and expressly
retains each party’s sovereign immunity. See supra, at 2.
But Michigan—like any State—could have insisted on a
different deal (and indeed may do so now for the future,
because the current compact has expired and remains in
effect only until the parties negotiate a new one, see Tr. of
Oral Arg. 21). And in that event, the limitation Congress
placed on IGRA’s abrogation of tribal immunity—whether
or not anomalous as an abstract matter—would have
made no earthly difference.
IV
Because IGRA’s plain terms do not abrogate Bay Mills’
immunity from this suit, Michigan (and the dissent) must
make a more dramatic argument: that this Court should
“revisit[ ] Kiowa’s holding” and rule that tribes “have no
immunity for illegal commercial activity outside their
sovereign territory.” Reply Brief 8, 10; see post, at 1.
Michigan argues that tribes increasingly participate in off-
reservation gaming and other commercial activity, and
operate in that capacity less as governments than as
private businesses. See Brief for Michigan 38 (noting,
Cite as: 572 U. S. ____ (2014) 15
Opinion of the Court
among other things, that “tribal gaming revenues have
more than tripled” since Kiowa). Further, Michigan con-
tends, tribes have broader immunity from suits arising
from such conduct than other sovereigns—most notably,
because Congress enacted legislation limiting foreign
nations’ immunity for commercial activity in the United
States. See id., at 41; 28 U.S. C. §1605(a)(2). It is time,
Michigan concludes, to “level[ ] the playing field.” Brief for
Michigan 38.
But this Court does not overturn its precedents lightly.
Stare decisis, we have stated, “is the preferred course
because it promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance
on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.” Payne v. Ten-
nessee, 501 U.S. 808, 827 (1991). Although “not an inexo-
rable command,” id., at 828, stare decisis is a foundation
stone of the rule of law, necessary to ensure that legal
rules develop “in a principled and intelligible fashion,”
Vasquez v. Hillery, 474 U.S. 254, 265 (1986). For that
reason, this Court has always held that “any departure”
from the doctrine “demands special justification.” Arizona
v. Rumsey, 467 U.S. 203, 212 (1984).
And that is more than usually so in the circumstances
here. First, Kiowa itself was no one-off: Rather, in reject-
ing the identical argument Michigan makes, our decision
reaffirmed a long line of precedents, concluding that “the
doctrine of tribal immunity”—without any exceptions for
commercial or off-reservation conduct—“is settled law and
controls this case.” 523 U.S., at 756; see id., at 754–755;
supra, at 5–7. Second, we have relied on Kiowa subse-
quently: In another case involving a tribe’s off-reservation
commercial conduct, we began our analysis with Kiowa’s
holding that tribal immunity applies to such activity (and
then found that the Tribe had waived its protection). See
C & L Enterprises, 532 U.S., at 418. Third, tribes across
16 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
Opinion of the Court
the country, as well as entities and individuals doing
business with them, have for many years relied on Kiowa
(along with its forebears and progeny), negotiating their
contracts and structuring their transactions against a
backdrop of tribal immunity. As in other cases involving
contract and property rights, concerns of stare decisis are
thus “at their acme.” State Oil Co. v. Khan, 522 U.S. 3, 20
(1997). And fourth (a point we will later revisit, see infra,
at 17–20), Congress exercises primary authority in this
area and “remains free to alter what we have done”—
another factor that gives “special force” to stare decisis.
Patterson v. McLean Credit Union, 491 U.S. 164, 172–173
(1989). To overcome all these reasons for this Court to
stand pat, Michigan would need an ace up its sleeve.8
But instead, all the State musters are retreads of asser-
tions we have rejected before. Kiowa expressly considered
the view, now offered by Michigan, that “when tribes take
part in the Nation’s commerce,” immunity “extends be-
yond what is needed to safeguard tribal self-governance.”
523 U.S., at 758. (Indeed, as Kiowa noted, see id., at 757,
Potawatomi had less than a decade earlier rejected Okla-
homa’s identical contention that “because tribal business
activities . . . are now so detached from traditional tribal
interests,” immunity “no longer makes sense in [the com-
mercial] context,” 498 U.S., at 510.) So too, the Kiowa
——————
8 Adhering to stare decisis is particularly appropriate here given that
the State, as we have shown, has many alternative remedies: It has no
need to sue the Tribe to right the wrong it alleges. See supra, at 12–13.
We need not consider whether the situation would be different if
no alternative remedies were available. 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 alterna-
tive way to obtain relief for off-reservation commercial conduct. The
argument that such cases would present a “special justification” for
abandoning precedent is not before us. Arizona v. Rumsey, 467 U.S.
203, 212 (1984).
Cite as: 572 U. S. ____ (2014) 17
Opinion of the Court
Court comprehended the trajectory of tribes’ commercial
activity (which is the dissent’s exclusive rationale for
ignoring stare decisis, see post, at 10–13). In the preceding
decade, tribal gaming revenues had increased more than
thirty fold9 (dwarfing the still strong rate of growth since
that time, see supra, at 14–15); and Kiowa noted the
flourishing of other tribal enterprises, ranging from ciga-
rette sales to ski resorts, see 523 U.S., at 758. Moreover,
the Kiowa Court understood that other sovereigns did not
enjoy similar immunity for commercial activities outside
their territory; that seeming “anomal[y]” was a principal
point in the dissenting opinion. See id., at 765 (Stevens,
J., dissenting). Kiowa did more, in fact, than acknowledge
those arguments; it expressed a fair bit of sympathy to-
ward them. See id., at 758 (noting “reasons to doubt the
wisdom of perpetuating the doctrine” as to off-reservation
commercial conduct). Yet the decision could not have been
any clearer: “We decline to draw [any] distinction” that
would “confine [immunity] to reservations or to noncom-
mercial activities.” Ibid.
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. The special
brand of sovereignty the tribes retain—both its nature and
its extent—rests in the hands of Congress. See Lara, 541
U.S., at 200; Wheeler, 435 U.S., at 323. Kiowa chose to
respect that congressional responsibility (as Potawatomi
had a decade earlier) when it rejected the precursor to
Michigan’s argument: Whatever our view of the merits, we
explained, “we defer to the role Congress may wish to
exercise in this important judgment.” 523 U.S., at 758;
see Potawatomi, 498 U.S., at 510 (stating that because
——————
9 See Nat. Gambling Impact Study Comm’n, Final Report, pp. 6–1 to
6–2 (1999), online at http://govinfo.library.unt.edu/ngisc/reports/6.pdf
(as visited Apr. 30, 2014, and available in Clerk of Court’s case file).
18 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
Opinion of the Court
“Congress has always been at liberty to dispense with” or
limit tribal immunity, “we are not disposed to modify” its
scope). Congress, we said—drawing an analogy to its role
in shaping foreign sovereign immunity10—has the greater
capacity “to weigh and accommodate the competing policy
concerns and reliance interests” involved in the issue. 523
U.S., at 759. And Congress repeatedly had done just
that: It had restricted tribal immunity “in limited circum-
stances” (including, we noted, in §2710(d)(7)(A)(ii)), while “in
other statutes” declaring an “intention not to alter” the
doctrine. Id., at 758; see Potawatomi, 498 U.S., at 510
(citing statutory provisions involving tribal immunity). So
too, we thought, Congress should make the call whether
to curtail a tribe’s immunity for off-reservation commer-
cial conduct—and the Court should accept Congress’s
judgment.
All that we said in Kiowa applies today, with yet one
——————
10 Kiowa explained that Congress, in the Foreign Sovereign Immuni-
ties Act of 1976, 28 U.S. C. §1605(a)(2), “den[ied] immunity for the
commercial acts of a foreign nation,” codifying an earlier State Depart-
ment document, known as the Tate Letter, announcing that policy. 523
U.S., at 759. Michigan takes issue with Kiowa’s account, maintaining
that this Court took the lead in crafting the commercial exception to
foreign sovereign immunity, and so should feel free to do the same
thing here. See Reply Brief 6–7. But the decision Michigan cites,
Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682
(1976), does not show what the State would like. First, Michigan points
to a part of the Dunhill opinion commanding only four votes, see id., at
695–706 (opinion of White, J.); the majority’s decision was based on the
act of state doctrine, not on anything to do with foreign sovereign
immunity, see id., at 690–695. And second, even the plurality opinion
relied heavily on the views of the Executive Branch as expressed in the
Tate Letter—going so far as to attach that document as an appendix.
See id., at 696–698 (opinion of White, J.); id., at 711–715 (appendix 2 to
opinion of the Court). The opinion therefore illustrates what Kiowa
highlighted: this Court’s historic practice of “deferr[ing] to the decisions
of the political branches,” rather than going it alone, when addressing
foreign sovereign immunity. Verlinden B. V. v. Central Bank of Nige-
ria, 461 U.S. 480, 486 (1983).
Cite as: 572 U. S. ____ (2014) 19
Opinion of the Court
more thing: Congress has now reflected on Kiowa and
made an initial (though of course not irrevocable) decision
to retain that form of tribal immunity. Following Kiowa,
Congress considered several bills to substantially modify
tribal immunity in the commercial context. Two in partic-
ular—drafted by the chair of the Senate Appropriations
Subcommittee on the Interior—expressly referred to Kiowa
and broadly abrogated tribal immunity for most torts
and breaches of contract. See S. 2299, 105th Cong., 2d
Sess. (1998); S. 2302, 105th Cong., 2d Sess. (1998). But
instead of adopting those reversals of Kiowa, Congress
chose to enact a far more modest alternative requiring
tribes either to disclose or to waive their immunity in
contracts needing the Secretary of the Interior’s approval.
See Indian Tribal Economic Development and Contract
Encouragement Act of 2000, §2, 114 Stat. 46 (codified at
25 U.S. C. §81(d)(2)); see also F. Cohen, Handbook of
Federal Indian Law §7.05[1][b], p. 643 (2012). Since then,
Congress has continued to exercise its plenary authority
over tribal immunity, specifically preserving immunity in
some contexts and abrogating it in others, but never
adopting the change Michigan wants.11 So rather than
confronting, as we did in Kiowa, a legislative vacuum as to
the precise issue presented, we act today against the
backdrop of a congressional choice: to retain tribal immun-
ity (at least for now) in a case like this one.12
——————
11 Compare, e.g., Prevent All Cigarette Trafficking Act of 2009, §§2(e),
(3)(a), 124 Stat. 1101, 1108 (preserving immunity), with Arizona Water
Settlements Act, §§213(a)(2), 301, 118 Stat. 3531, 3551 (abrogating
immunity). The dissent’s claim that “Congress has never granted tribal
sovereign immunity in any shape or form,” post, at 13, apparently does
not take into account the many statutes in which Congress preserved or
otherwise ratified tribal immunity. See, e.g., 25 U.S. C. §450n; see
generally Potawatomi, 498 U.S., at 510 (“Congress has consistently
reiterated its approval of the immunity doctrine”).
12 The dissent principally counters that this history is not “relevan[t]”
because Kiowa was a “common-law decision.” Post, at 14. But that is
20 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
Opinion of the Court
Reversing Kiowa in these circumstances would scale
the heights of presumption: Beyond upending “long-
established principle[s] of tribal sovereign immunity,” that
action would replace Congress’s considered judgment with
our contrary opinion. Potawatomi, 498 U.S., at 510. As
Kiowa recognized, a fundamental commitment of Indian
law is judicial respect for Congress’s primary role in defin-
ing the contours of tribal sovereignty. See 523 U.S., at
758–760; see also Santa Clara Pueblo, 436 U.S., at 60
(“[A] proper respect . . . for the plenary authority of Con-
gress in this area cautions that [the courts] tread lightly”);
Cohen, supra, §2.01[1], at 110 (“Judicial deference to the
paramount authority of Congress in matters concerning
Indian policy remains a central and indispensable princi-
ple of the field of Indian law”). That commitment gains
only added force when Congress has already reflected on
an issue of tribal sovereignty, including immunity from
suit, and declined to change settled law. And that force
must grow greater still when Congress considered that
issue partly at our urging. See Kiowa, 523 U.S., at 758
(hinting, none too subtly, that “Congress may wish to
exercise” its authority over the question presented). Hav-
ing held in Kiowa that this issue is up to Congress, we
cannot reverse ourselves because some may think its
conclusion wrong. Congress of course may always change
its mind—and we would readily defer to that new decision.
But it is for Congress, now more than ever, to say whether
to create an exception to tribal immunity for off-
reservation commercial activity. As in Kiowa—except still
——————
to ignore what Kiowa (in line with prior rulings) specifically told
Congress: that tribal immunity, far from any old common law doctrine,
lies in Congress’s hands to configure. See 523 U.S., at 758; Potawatomi,
498 U.S., at 510; Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58–
60 (1978). When we inform Congress that it has primary responsibility
over a sphere of law, and invite Congress to consider a specific issue
within that sphere, we cannot deem irrelevant how Congress responds.
Cite as: 572 U. S. ____ (2014) 21
Opinion of the Court
more so—“we decline to revisit our case law[,] and choose”
instead “to defer to Congress.” Id., at 760.
V
As “domestic dependent nations,” Indian tribes exercise
sovereignty subject to the will of the Federal Government.
Cherokee Nation, 5 Pet., at 17. Sovereignty implies im-
munity from lawsuits. Subjection means (among much
else) that Congress can abrogate that immunity as and to
the extent it wishes. If Congress had authorized this suit,
Bay Mills would have no valid grounds to object. But
Congress has not done so: The abrogation of immunity in
IGRA applies to gaming on, but not off, Indian lands. We
will not rewrite Congress’s handiwork. Nor will we create
a freestanding exception to tribal immunity for all off-
reservation commercial conduct. This Court has declined
that course once before. To choose it now would entail
both overthrowing our precedent and usurping Congress’s
current policy judgment. Accordingly, Michigan may not
sue Bay Mills to enjoin the Vanderbilt casino, but must
instead use available alternative means to accomplish that
object.
We affirm the Sixth Circuit’s judgment and remand the
case for further proceedings consistent with this opinion.
It is so ordered.
Cite as: 572 U. S. ____ (2014) 1
SOTOMAYOR, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–515
_________________
MICHIGAN, PETITIONER v. BAY MILLS INDIAN
COMMUNITY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[May 27, 2014]
JUSTICE SOTOMAYOR, concurring.
The doctrine of tribal immunity has been a part of
American jurisprudence for well over a century. See, e.g.,
Parks v. Ross, 11 How. 362 (1851); Struve, Tribal Immu-
nity and Tribal Courts, 36 Ariz. St. L. J. 137, 148–155 (2004)
(tracing the origins of the doctrine to the mid-19th cen-
tury); Wood, It Wasn’t An Accident: The Tribal Sovereign
Immunity Story, 62 Am. U. L. Rev. 1587, 1640–1641
(2013) (same). And in more recent decades, this Court has
consistently affirmed the doctrine. See, e.g., United States
v. United States Fidelity & Guaranty Co., 309 U.S. 506
(1940); Puyallup Tribe, Inc. v. Department of Game of
Wash., 433 U.S. 165 (1977); C & L Enterprises, Inc. v.
Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S.
411, 418 (2001). Despite this history, the principal dissent
chides the Court for failing to offer a sufficient basis for
the doctrine of tribal immunity, post, at 3 (opinion of
THOMAS, J.), and reasons that we should at least limit the
doctrine of tribal sovereign immunity in ways that resem-
ble restrictions on foreign sovereign immunity.
The majority compellingly explains why stare decisis
and deference to Congress’ careful regulatory scheme
require affirming the decision below. I write separately to
further detail why both history and comity counsel against
limiting Tribes’ sovereign immunity in the manner the
2 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
SOTOMAYOR, J., concurring
principal dissent advances.
I
Long before the formation of the United States, Tribes
“were self-governing sovereign political communities.”
United States v. Wheeler, 435 U.S. 313, 322–323 (1978).
And Tribes “have not given up their full sovereignty.” Id.,
at 323. Absent contrary congressional acts, Tribes “retain
their existing sovereign powers” and “possess those as-
pects of sovereignty not withdrawn by treaty or statute, or
by implication as a necessary result of their dependent
status.” Ibid. See also 25 U.S. C. §1301(1) (affirming
Tribes’ continued “powers of self-government”). In this
case then, the question is what type of immunity federal
courts should accord to Tribes, commensurate with their
retained sovereignty.
In answering this question, the principal dissent analo-
gizes tribal sovereign immunity to foreign sovereign im-
munity. Foreign sovereigns (unlike States) are generally
not immune from suits arising from their commercial
activities. Post, at 4; see also Foreign Sovereign Immuni-
ties Act of 1976, 28 U.S. C. §1605(a)(2) (commercial-
activity exception to foreign sovereign immunity). This
analogy, however, lacks force. Indian Tribes have never
historically been classified as “foreign” governments in
federal courts even when they asked to be.
The case of Cherokee Nation v. Georgia, 5 Pet. 1 (1831),
is instructive. In 1828 and 1829, the Georgia Legislature
enacted a series of laws that purported to nullify acts of
the Cherokee government and seize Cherokee land, among
other things. Id., at 7–8. The Cherokee Nation sued
Georgia in this Court, alleging that Georgia’s laws violated
federal law and treaties. Id., at 7. As the constitutional
basis for jurisdiction, the Tribe relied on Article III, §2, cl.
1, which extends the federal judicial power to cases “be-
tween a state, or the citizens thereof, and foreign states,
Cite as: 572 U. S. ____ (2014) 3
SOTOMAYOR, J., concurring
citizens, or subjects.” 5 Pet., at 15 (internal quotation
marks omitted). But this Court concluded that it lacked
jurisdiction because Tribes were not “foreign state[s].” Id.,
at 20. The Court reasoned that “[t]he condition of the
Indians in relation to the United States is perhaps unlike
that of any other two people in existence.” Id., at 16.
Tribes were more akin to “domestic dependent nations,”
the Court explained, than to foreign nations. Id., at 17.
We have repeatedly relied on that characterization in
subsequent cases. See, e.g., Oklahoma Tax Comm’n v.
Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505,
509 (1991); Merrion v. Jicarilla Apache Tribe, 455 U.S.
130, 141 (1982). Two centuries of jurisprudence therefore
weigh against treating Tribes like foreign visitors in
American courts.
II
The principal dissent contends that whenever one sov-
ereign is sued in the courts of another, the question
whether to confer sovereign immunity is not a matter of
right but rather one of “comity.” Post, at 3. But in my
view, the premise leads to a different conclusion than the
one offered by the dissent. Principles of comity strongly
counsel in favor of continued recognition of tribal sover-
eign immunity, including for off-reservation commercial
conduct.
Comity—“that is, ‘a proper respect for [a sovereign’s]
functions,’ ” Sprint Communications, Inc. v. Jacobs, 571
U. S. ___, ___ (2013) (slip op., at 7)—fosters “respectful,
harmonious relations” between governments, Wood v.
Milyard, 566 U. S. ___, ___ (2012) (slip op., at 7). For two
reasons, these goals are best served by recognizing sover-
eign immunity for Indian Tribes, including immunity for
off-reservation conduct, except where Congress has ex-
pressly abrogated it. First, a legal rule that permitted
States to sue Tribes, absent their consent, for commercial
4 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
SOTOMAYOR, J., concurring
conduct would be anomalous in light of the existing prohi-
bitions against Tribes’ suing States in like circumstances.
Such disparate treatment of these two classes of domestic
sovereigns would hardly signal the Federal Government’s
respect for tribal sovereignty. Second, Tribes face a num-
ber of barriers to raising revenue in traditional ways. If
Tribes are ever to become more self-sufficient, and fund a
more substantial portion of their own governmental func-
tions, commercial enterprises will likely be a central
means of achieving that goal.
A
We have held that Tribes may not sue States in federal
court, Blatchford v. Native Village of Noatak, 501 U.S.
775 (1991), including for commercial conduct that chiefly
impacts Indian reservations, Seminole Tribe of Fla. v.
Florida, 517 U.S. 44 (1996). In Seminole Tribe, the Tribe
sued the State of Florida in federal court under the Indian
Gaming Regulatory Act (IGRA)—the same statute peti-
tioner relies on here. The suit alleged that Florida had
breached its statutory “duty to negotiate in good faith with
[the Tribe] toward the formation of a [gaming] compact.”
Id., at 47. This Court held that state sovereign immunity
prohibited such a suit.
Importantly, the Court barred the Tribe’s suit against
Florida even though the case involved the State’s conduct
in the course of commercial negotiations. As this Court
later observed, relying in part on Seminole Tribe, the
doctrine of state sovereign immunity is not “any less ro-
bust” when the case involves conduct “that is undertaken
for profit, that is traditionally performed by private citi-
zens and corporations, and that otherwise resembles the
behavior of ‘market participants.’ ” College Savings Bank
v. Florida Prepaid Postsecondary Ed. Expense Bd., 527
U.S. 666, 684 (1999). Nor did Seminole Tribe adopt a
state corollary to the “off-reservation” exception to tribal
Cite as: 572 U. S. ____ (2014) 5
SOTOMAYOR, J., concurring
sovereign immunity that the principal dissent urges today.
To the contrary, the negotiations in Seminole Tribe con-
cerned gaming on Indian lands, not state lands.
As the principal dissent observes, “comity is about one
sovereign respecting the dignity of another.” Post, at 4.
This Court would hardly foster respect for the dignity of
Tribes by allowing States to sue Tribes for commercial
activity on State lands, while prohibiting Tribes from
suing States for commercial activity on Indian lands. Both
States and Tribes are domestic governments who come to
this Court with sovereignty that they have not entirely
ceded to the Federal Government.
Similar asymmetry would result if States could sue
Tribes in state courts.1 In Nevada v. Hicks, 533 U.S. 353,
355 (2001), this Court considered whether a tribal court
had “jurisdiction over civil claims against state officials
who entered tribal land to execute a search warrant
against a tribe member suspected of having violated state
law outside the reservation.” It held that the tribal court
did not. Id., at 374. In reaching that conclusion, the
Court observed that “[s]tate sovereignty does not end at a
reservation’s border.” Id., at 361. And relying on similar
principles, some federal courts have more explicitly held
that tribal courts may not entertain suits against States.
See, e.g., Montana v. Gilham, 133 F.3d 1133, 1136–1137
(CA9 1998) (holding that while neither “the Eleventh
Amendment [n]or congressional act” barred suits against
States in tribal courts, “the inherent sovereign powers of
the States” barred such suits). To the extent Tribes are
barred from suing in tribal courts, it would be anomalous
to permit suits against Tribes in state courts.
Two of the dissenting opinions implicitly address this
——————
1 While this case involves a suit against a Tribe in federal court, the
principal dissent also critiques tribal sovereign immunity in state
courts. Post, at 4–5.
6 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
SOTOMAYOR, J., concurring
asymmetry. The principal dissent reasons that States and
Tribes should be treated differently for purposes of sover-
eign immunity because—unlike tribal sovereign immu-
nity—state sovereign immunity has constitutional origins.
Post, at 3, n. 1. JUSTICE GINSBURG offers another view:
that Tribes and States should both receive less immunity.
She expresses concerns about cases like Seminole Tribe,
pointing to dissents that have catalogued the many prob-
lems associated with the Court’s sprawling state sovereign
immunity jurisprudence. Post, at 1–2 (citing, among
others, Alden v. Maine, 527 U.S. 706, 814 (1999) (Souter,
J., dissenting)).
As things stand, however, Seminole Tribe and its prog-
eny remain the law. And so long as that is so, comity would
be ill-served by unequal treatment of States and Tribes. If
Tribes cannot sue States for commercial activities on
tribal lands, the converse should also be true. Any other
result would fail to respect the dignity of Indian Tribes.
B
The principal dissent contends that Tribes have
emerged as particularly “substantial and successful”
commercial actors. Post, at 13. The dissent expresses
concern that, although tribal leaders can be sued for pro-
spective relief, ante, at 13 (majority opinion), Tribes’ pur-
portedly growing coffers remain unexposed to broad dam-
ages liability. Post, at 10–11. These observations suffer
from two flaws.
First, not all Tribes are engaged in highly lucrative
commercial activity. Nearly half of federally recognized
Tribes in the United States do not operate gaming facili-
ties at all. A. Meister, Casino City’s Indian Gaming In-
dustry Report 28 (2009–2010 ed.) (noting that “only 237,
or 42 percent, of the 564 federally recognized Native
Cite as: 572 U. S. ____ (2014) 7
SOTOMAYOR, J., concurring
American tribes in the U. S. operate gaming”).2 And even
among the Tribes that do, gaming revenue is far from
uniform. As of 2009, fewer than 20% of Indian gaming
facilities accounted for roughly 70% of the revenues from
such facilities. Ibid. One must therefore temper any
impression that Tribes across the country have suddenly
and uniformly found their treasuries filled with gaming
revenue.
Second, even if all Tribes were equally successful in
generating commercial revenues, that would not justify
the commercial-activity exception urged by the principal
dissent. For tribal gaming operations cannot be under-
stood as mere profit-making ventures that are wholly
separate from the Tribes’ core governmental functions. A
key goal of the Federal Government is to render Tribes
more self-sufficient, and better positioned to fund their
own sovereign functions, rather than relying on federal
funding. 25 U.S. C. §2702(1) (explaining that Congress’
purpose in enacting IGRA was “to provide a statutory
basis for the operation of gaming by Indian tribes as a
means of promoting tribal economic development, self-
sufficiency, and strong tribal governments”); see also
Cohen’s Handbook of Federal Indian Law 1357–1373
(2012) (Cohen’s Handbook) (describing various types of
federal financial assistance that Tribes receive). And
tribal business operations are critical to the goals of tribal
self-sufficiency because such enterprises in some cases
“may be the only means by which a tribe can raise reve-
nues,” Struve, 36 Ariz. St. L. J., at 169. This is due in
large part to the insuperable (and often state-imposed)
barriers Tribes face in raising revenue through more
——————
2 The term “ ‘Indian gaming facility’ is defined as any tribal enterprise
that offer[s] gaming in accordance with [the Indian Gaming Regulation
Act].’ ” A. Meister, Casino City’s Indian Gaming Industry Report 10
(2009–2010 ed.).
8 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
SOTOMAYOR, J., concurring
traditional means.
For example, States have the power to tax certain indi-
viduals and companies based on Indian reservations,
making it difficult for Tribes to raise revenue from those
sources. See Oklahoma Tax Comm’n v. Citizen Band
Potawatomi Tribe of Okla., 498 U.S. 505 (allowing State
to collect taxes on sales to non-Indians on Indian land);
Arizona Dept. of Revenue v. Blaze Constr. Co., 526 U.S. 32
(1999) (allowing taxation of companies owned by non-
Indians on Indian land); Thomas v. Gay, 169 U.S. 264
(1898) (allowing taxation of property owned by non-
Indians on Indian land). States may also tax reservation
land that Congress has authorized individuals to hold in
fee, regardless of whether it is held by Indians or non-
Indians. See Cass County v. Leech Lake Band of Chip-
pewa Indians, 524 U.S. 103 (1998) (States may tax Indian
reservation land if Congress made the land subject to sale
under the Indian General Allotment Act of 1887 (also
known as the Dawes Act)); County of Yakima v. Confeder-
ated Tribes and Bands of Yakima Nation, 502 U.S. 251
(1992) (same).
As commentators have observed, if Tribes were to im-
pose their own taxes on these same sources, the resulting
double taxation would discourage economic growth.
Fletcher, In Pursuit of Tribal Economic Development as a
Substitute for Reservation Tax Revenue, 80 N. D. L. Rev.
759, 771 (2004); see also Cowan, Double Taxation in Indian
Country: Unpacking the Problem and Analyzing the
Role of the Federal Government in Protecting Tribal Gov-
ernmental Revenues, 2 Pittsburgh Tax Rev. 93, 95 (2005);
Enterprise Zones, Hearings before the Subcommittee on
Select Revenue Measures of the House Committee On
Ways and Means, 102d Cong., 1st Sess., 234 (1991)
(statement of Peterson Zah, President of the Navajo Na-
tion) (“[D]ouble taxation interferes with our ability to
encourage economic activity and to develop effective reve-
Cite as: 572 U. S. ____ (2014) 9
SOTOMAYOR, J., concurring
nue generating tax programs. Many businesses may find
it easier to avoid doing business on our reservations rather
than . . . bear the brunt of an added tax burden”).
If non-Indians controlled only a small amount of prop-
erty on Indian reservations, and if only a negligible amount
of land was held in fee, the double-taxation concern might
be less severe. But for many Tribes, that is not the case.
History explains why this is so: Federal policies enacted in
the late 19th and early 20th centuries rendered a devas-
tating blow to tribal ownership. In 1887, Congress enacted
the Dawes Act. 24 Stat. 388. That Act had two major
components relevant here. First, it converted the property
that belonged to Indian Tribes into fee property, and
allotted the land to individual Indians. Id., at 388–389.
Much of this land passed quickly to non-Indian owners.
Royster, The Legacy of Allotment, 27 Ariz. St. L. J. 1, 12
(1995). Indeed, by 1934, the amount of land that passed
from Indian Tribes to non-Indians totaled 90 million acres.
See Cohen’s Handbook 74. Other property passed to non-
Indians when destitute Indians found themselves unable
to pay state taxes, resulting in sheriff ’s sales. Royster,
supra, at 12.
A second component of the Dawes Act opened “surplus”
land on Indian reservations to settlement by non-Indians.
24 Stat. 389–390. Selling surplus lands to non-Indians
was part of a more general policy of forced assimilation.
See Cohen’s Handbook 75. Sixty million acres of land
passed to non-Indian hands as a result of surplus pro-
grams. Royster, supra, at 13.3
These policies have left a devastating legacy, as the
cases that have come before this Court demonstrate. We
——————
3 This figure does not include land taken from Indian Tribes after
World War II; during that time, some Tribes and reservations were
liquidated and given to non-Indians. A. Debo, A History of Indians of
the United States 301–312 (1970).
10 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
SOTOMAYOR, J., concurring
noted in Montana v. United States, 450 U.S. 544, 548
(1981), for example, that due in large part to the Dawes
Act, 28% of the Crow Tribe’s reservation in Montana was
held in fee by non-Indians. Similarly, Justice White ob-
served in Brendale v. Confederated Tribes and Bands of
Yakima Nation, 492 U.S. 408, 414 (1989) (plurality opin-
ion), that 20% of the Yakima Nation’s reservation was
owned in fee. For reservations like those, it is particu-
larly impactful that States and local governments may tax
property held by non-Indians, Thomas, 169 U.S., at 264–
265, and land held in fee as a result of the Dawes Act. See
County of Yakima, 502 U.S., at 259.
Moreover, Tribes are largely unable to obtain substan-
tial revenue by taxing tribal members who reside on non-
fee land that was not allotted under the Dawes Act. As
one scholar recently observed, even if Tribes imposed high
taxes on Indian residents, “there is very little income,
property, or sales they could tax.” Fletcher, supra, at 774.
The poverty and unemployment rates on Indian reserva-
tions are significantly greater than the national average.
See n. 4, infra. As a result, “there is no stable tax base on
most reservations.” Fletcher, supra, at 774; see Williams,
Small Steps on the Long Road to Self-Sufficiency for In-
dian Nations: The Indian Tribal Governmental Tax Status
Act of 1982, 22 Harv. J. Legis. 335, 385 (1985).
To be sure, poverty has decreased over the past few
decades on reservations that have gaming activity. One
recent study found that between 1990 and 2000, the pres-
ence of a tribal casino increased average per capita income
by 7.4% and reduced the family poverty rate by 4.9 per-
centage points. Anderson, Tribal Casino Impacts on Amer-
ican Indians Well-Being: Evidence From Reservation-
Level Census Data, 31 Contemporary Economic Policy
291, 298 (Apr. 2013). But even reservations that have
gaming continue to experience significant poverty, espe-
cially relative to the national average. See id., at 296.
 Cite as: 572 U. S. ____ (2014) 11
SOTOMAYOR, J., concurring
The same is true of Indian reservations more generally.4
* * *
Both history and proper respect for tribal sovereignty—
or comity—counsel against creating a special “commercial
activity” exception to tribal sovereign immunity. For
these reasons, and for the important reasons of stare
decisis and deference to Congress outlined in the majority
opinion, I concur.
——————
4 See Dept. of Interior, Office of Assistant Secretary–Indian Affairs,
2013 American Indian Population and Labor Force Report 11 (Jan. 16,
2014) (placing the poverty rate among American Indians at 23%); see
also Dept. of Commerce, Bureau of Census, Press Release, Income,
Poverty and Health Insurance Coverage in the United States: 2010
(Sept. 13, 2011) stating that the national poverty rate in 2010
was 15.1%), online at http://www.census.gov/newsroom/releases/
archives/income_wealth/cb13-165.html (as visited May 22, 2014, and
available in Clerk of Court’s Case file).
Cite as: 572 U. S. ____ (2014) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–515
_________________
MICHIGAN, PETITIONER v. BAY MILLS INDIAN
COMMUNITY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[May 27, 2014]
JUSTICE SCALIA, dissenting.
In Kiowa Tribe of Okla. v. Manufacturing Technolo-
gies, Inc., 523 U.S. 751 (1998), this Court expanded the
judge-invented doctrine of tribal immunity to cover off-
reservation commercial activities. Id., at 760. I concurred
in that decision. For the reasons given today in JUSTICE
THOMAS’s dissenting opinion, which I join, I am now con-
vinced that Kiowa was wrongly decided; that, in the inter-
vening 16 years, its error has grown more glaringly obvi-
ous; and that stare decisis does not recommend its
retention. Rather than insist that Congress clean up a
mess that I helped make, I would overrule Kiowa and
reverse the judgment below.
Cite as: 572 U. S. ____ (2014) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–515
_________________
MICHIGAN, PETITIONER v. BAY MILLS INDIAN
COMMUNITY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[May 27, 2014]
JUSTICE THOMAS, with whom JUSTICE SCALIA, JUSTICE
GINSBURG, and JUSTICE ALITO join, dissenting.
In Kiowa Tribe of Okla. v. Manufacturing Technologies,
Inc., 523 U.S. 751 (1998), this Court extended the judge-
made doctrine of tribal sovereign immunity to bar suits
arising out of an Indian tribe’s commercial activities con-
ducted outside its territory. That was error. Such an
expansion of tribal immunity is unsupported by any ra-
tionale for that doctrine, inconsistent with the limits on
tribal sovereignty, and an affront to state sovereignty.
That decision, wrong to begin with, has only worsened
with the passage of time. In the 16 years since Kiowa,
tribal commerce has proliferated and the inequities en-
gendered by unwarranted tribal immunity have multi-
plied. Nevertheless, the Court turns down a chance to
rectify its error. Still lacking a substantive justification
for Kiowa’s rule, the majority relies on notions of deference
to Congress and stare decisis. Because those considera-
tions do not support (and cannot sustain) Kiowa’s unjusti-
fiable rule and its mounting consequences, I respectfully
dissent.
I
A
There is no substantive basis for Kiowa’s extension of
2 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
THOMAS, J., dissenting
tribal immunity to off-reservation commercial acts. As
this Court explained in Kiowa, the common-law doctrine of
tribal sovereign immunity arose “almost by accident.” Id.,
at 756. The case this Court typically cited as the doc-
trine’s source “simply does not stand for that proposition,”
ibid. (citing Turner v. United States, 248 U.S. 354
(1919)), and later cases merely “reiterated the doctrine”
“with little analysis,” 523 U.S., at 757. In fact, far from
defending the doctrine of tribal sovereign immunity, the
Kiowa majority “doubt[ed] the wisdom of perpetuating the
doctrine.” Id., at 758. The majority here suggests just one
post hoc justification: that tribes automatically receive
immunity as an incident to their historic sovereignty. But
that explanation fails to account for the fact that immunity
does not apply of its own force in the courts of another
sovereign. And none of the other colorable rationales for
the doctrine—i.e., considerations of comity, and protection
of tribal self-sufficiency and self-government—supports
extending immunity to suits arising out of a tribe’s com-
mercial activities conducted beyond its territory.
1
Despite the Indian tribes’ subjection to the authority
and protection of the United States Government, this
Court has deemed them “domestic dependent nations”
that retain limited attributes of their historic sovereignty.
Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831); see also
United States v. Wheeler, 435 U.S. 313, 323 (1978) (“The
sovereignty that the Indian tribes retain is of a unique and
limited character”). The majority suggests that tribal
immunity is one such attribute of sovereignty that tribes
have retained. See ante, at 5; Brief for Respondent Bay
Mills Indian Community 48; On that view, immunity
from suit applies automatically, on the theory that it is
simply “inherent in the nature of sovereignty,” The Feder-
alist No. 81, p. 548 (J. Cooke ed. 1961).
Cite as: 572 U. S. ____ (2014) 3
THOMAS, J., dissenting
This basis for immunity—the only substantive basis the
majority invokes—is unobjectionable when a tribe raises
immunity as a defense in its own courts. We have long
recognized that in the sovereign’s own courts, “the sover-
eign’s power to determine the jurisdiction of its own courts
and to define the substantive legal rights of its citizens
adequately explains the lesser authority to define its own
immunity.” Kiowa, supra, at 760 (Stevens, J., dissenting)
(citing Kawananakoa v. Polyblank, 205 U.S. 349, 353
(1907)). But this notion cannot support a tribe’s claim of
immunity in the courts of another sovereign—either a
State (as in Kiowa) or the United States (as here). Sover-
eign immunity is not a freestanding “right” that applies of
its own force when a sovereign faces suit in the courts of
another. Republic of Austria v. Altmann, 541 U.S. 677,
688 (2004). Rather, “[t]he sovereign’s claim to immunity
in the courts of a second sovereign . . . normally depends
on the second sovereign’s law.” Kiowa, supra, at 760–761
(Stevens, J., dissenting); see, e.g., Altmann, supra, at 711
(BREYER, J., concurring) (application of foreign sovereign
immunity “is a matter, not of legal right, but of ‘grace and
comity’ ”).1 In short, to the extent an Indian tribe may
claim immunity in federal or state court, it is because
federal or state law provides it, not merely because the
tribe is sovereign. Outside of tribal courts, the majority’s
——————
1 State sovereign immunity is an exception: This Court has said that
the States’ immunity from suit in federal court is secured by the Con-
stitution. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000)
(“[F]or over a century now, we have made clear that the Constitution
does not provide for federal jurisdiction over suits against nonconsent-
ing States”); Alden v. Maine, 527 U.S. 706, 733 (1999) (“Although the
sovereign immunity of the States derives at least in part from the
common-law tradition, . . . the immunity exists today by constitutional
design”). Unlike the States, Indian tribes “are not part of this constitu-
tional order,” and their immunity is not guaranteed by it. United
States v. Lara, 541 U.S. 193, 219 (2004) (THOMAS, J., concurring in
judgment).
4 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
THOMAS, J., dissenting
inherent-immunity argument is hardly persuasive.
2
Immunity for independent foreign nations in federal
courts is grounded in international “comity,” Verlinden B. V.
v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983), i.e.,
respecting the dignity of other sovereigns so as not to
“ ‘ “ imperil the amicable relations between governments
and vex the peace of nations,” ’ ” Banco Nacional de Cuba
v. Sabbatino, 376 U.S. 398, 418 (1964). But whatever its
relevance to tribal immunity, comity is an ill-fitting justi-
fication for extending immunity to tribes’ off-reservation
commercial activities. Even with respect to fully sovereign
foreign nations, comity has long been discarded as a suffi-
cient reason to grant immunity for commercial acts. In
1976, Congress provided that foreign states are not im-
mune from suits based on their “commercial activity” in
the United States or abroad. Foreign Sovereign Immuni-
ties Act, 28 U.S. C. §1605(a)(2); see also Alfred Dunhill of
London, Inc. v. Republic of Cuba, 425 U.S. 682, 703–704
(1976) (plurality opinion of White, J., joined by Burger,
C. J., and Powell and Rehnquist, JJ.) (“Subjecting for-
eign governments to the rule of law in their commercial
dealings” is “unlikely to touch very sharply on ‘na-
tional nerves,’” because “[i]n their commercial capacities, for-
eign governments do not exercise powers peculiar to
sovereigns”).
There is a further reason that comity cannot support
tribal immunity for off-reservation commercial activities.
At bottom, comity is about one sovereign respecting the
dignity of another. See Nevada v. Hall, 440 U.S. 410, 416
(1979). But permitting immunity for a tribe’s off-
reservation acts represents a substantial affront to a
different set of sovereigns—the States, whose sovereignty
is guaranteed by the Constitution, see New York v. United
States, 505 U.S. 144, 188 (1992) (“The Constitution . . .
Cite as: 572 U. S. ____ (2014) 5
THOMAS, J., dissenting
‘leaves to the several States a residuary and inviolable
sovereignty ’ ” (quoting The Federalist No. 39, at 256)).
When an Indian tribe engages in commercial activity
outside its own territory, it necessarily acts within the
territory of a sovereign State. This is why, “[a]bsent ex-
press federal law to the contrary, Indians going beyond
reservation boundaries have generally been held subject to
nondiscriminatory state law otherwise applicable to all
citizens of the State.” Mescalero Apache Tribe v. Jones,
411 U.S. 145, 148–149 (1973). A rule barring all suits
against a tribe arising out of a tribe’s conduct within state
territory—whether private actions or (as here) actions
brought by the State itself—stands in stark contrast to a
State’s broad regulatory authority over Indians within its
own territory. Indeed, by foreclosing key mechanisms
upon which States depend to enforce their laws against
tribes engaged in off-reservation commercial activity, such
a rule effects a breathtaking pre-emption of state power.
Kiowa, 523 U.S., at 764 (Stevens, J., dissenting). What is
worse, because that rule of immunity also applies in state
courts, it strips the States of their prerogative “to decide
for themselves whether to accord such immunity to Indian
tribes as a matter of comity.” Id., at 760 (same). The
States may decide whether to grant immunity in their
courts to other sovereign States, see Hall, supra, at 417–
418 (a State’s immunity from suit in the courts of a second
State depends on whether the second has chosen to extend
immunity to the first “as a matter of comity”), but when it
comes to Indian tribes, this Court has taken that right
away. Kiowa, supra, at 765 (Stevens, J., dissenting).
Nor does granting tribes immunity with respect to their
commercial conduct in state territory serve the practical
aim of comity: allaying friction between sovereigns. See
Banco Nacional de Cuba, supra, at 417–418. We need look
no further than this case (and many others cited by peti-
tioner and amici States) to see that such broad immunity
6 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
THOMAS, J., dissenting
has only aggravated relationships between States and
tribes throughout the country. See infra, at 11–13; see
generally Brief for State of Alabama et al. 11–16; Brief for
State of Oklahoma 8–10, 12–15.
3
This Court has previously suggested that recognizing
tribal immunity furthers a perceived congressional goal of
promoting tribal self-sufficiency and self-governance. See
Kiowa, supra, at 757; Three Affiliated Tribes of Fort
Berthold Reservation v. Wold Engineering, P. C., 476 U.S.
877, 890 (1986). Whatever the force of this assertion as a
general matter, it is easy to reject as a basis for extending
tribal immunity to off-reservation commercial activities.
In Kiowa itself, this Court dismissed the self-sufficiency
rationale as “inapposite to modern, wide-ranging tribal
enterprises extending well beyond traditional tribal cus-
toms and activities.” 523 U.S., at 757–758. The Court
expressed concern that “[i]n this economic context, im-
munity can harm those who are unaware that they are
dealing with a tribe, who do not know of tribal immunity,
or who have no choice in the matter, as in the case of tort
victims.” Id., at 758.
Nor is immunity for off-reservation commercial acts
necessary to protect tribal self-governance. As the Kiowa
majority conceded, “[i]n our interdependent and mobile
society, . . . tribal immunity extends beyond what is needed
to safeguard tribal self-governance.” Ibid. Such broad
immunity far exceeds the modest scope of tribal sover-
eignty, which is limited only to “what is necessary to pro-
tect tribal self-government or to control internal relations.”
Montana v. United States, 450 U.S. 544, 564 (1981); see
also Nevada v. Hicks, 533 U.S. 353, 392 (2001) (O’Connor,
J., concurring in part and concurring in judgment)
(“[T]ribes retain sovereign interests in activities that occur
on land owned and controlled by the tribe . . .”). And no
Cite as: 572 U. S. ____ (2014) 7
THOMAS, J., dissenting
party has suggested that immunity from the isolated suits
that may arise out of extraterritorial commercial dealings
is somehow fundamental to protecting tribal government
or regulating a tribe’s internal affairs.
B
Despite acknowledging that there is scant substantive
justification for extending tribal immunity to off-
reservation commercial acts, this Court did just that in
Kiowa. See 523 U.S., at 758. The Kiowa majority admit-
ted that the Court—rather than Congress—“has taken the
lead in drawing the bounds of tribal immunity.” Id., at
759. Nevertheless, the Court adopted a rule of expansive
immunity purportedly to “defer to the role Congress may
wish to exercise in this important judgment.” Id., at 758.
This asserted “deference” to Congress was a fiction and
remains an enigma, however, because the Kiowa Court did
not actually leave to Congress the decision whether to
extend tribal immunity. Tribal immunity is a common-
law doctrine adopted and shaped by this Court. Okla-
homa Tax Comm’n v. Citizen Band Potawatomi Tribe of
Okla., 498 U.S. 505, 510 (1991); Kiowa, 523 U.S., at 759.
Before Kiowa, we had never held that tribal sovereign
immunity applied to off-reservation commercial activities.2
Thus, faced with an unresolved question about a common-
law doctrine of its own design, the Kiowa Court had to
——————
2 The Court in Kiowa noted that in one case, we upheld a claim of
immunity where “a state court had asserted jurisdiction over tribal
fishing ‘both on and off its reservation.’ ” 523 U.S., at 754 (quoting
Puyallup Tribe, Inc. v. Department of Game of Wash., 433 U.S. 165,
167 (1977)). It went on to admit, however, that Puyallup “did not
discuss the relevance of where the fishing had taken place.” 523 U.S.,
at 754. And, as Justice Stevens explained in dissent, that case was
about whether the state courts had jurisdiction to regulate fishing
activities on the reservation; “we had no occasion to consider the
validity of an injunction relating solely to off-reservation fishing.” Id.,
at 763.
8 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
THOMAS, J., dissenting
make a choice: tailor the immunity to the realities of their
commercial enterprises, or “grant . . . virtually unlimited
tribal immunity.” Id., at 764 (Stevens, J., dissenting).
The Court took the latter course. In doing so, it did not
“defe[r] to Congress or exercis[e] ‘caution,’—rather, it . . .
creat[ed] law.” Id., at 765 (citation omitted). To be sure,
Congress had the power to “alter” that decision if it wanted.
Id., at 759 (majority opinion). But Congress has the au-
thority to do that with respect to any nonconstitutional
decision involving federal law, and the mere existence of
this authority could not be the basis for choosing one
outcome over another in Kiowa.3
Accident or no, it was this Court, not Congress, that
adopted the doctrine of tribal sovereign immunity in the
first instance. And it was this Court that left open a
question about its scope. Why should Congress—and only
Congress, according to the Kiowa Court—have to take on a
problem this Court created? In other areas of federal
common law, until Congress intervenes, it is up to us to
correct our errors. See, e.g., Exxon Shipping Co. v. Baker,
554 U.S. 471, 507 (2008) (“[I]f, in the absence of legisla-
tion, judicially derived standards leave the door open to
outlier punitive-damages awards [in maritime law], it is
hard to see how the judiciary can wash its hands of a
——————
3 Nor did the Kiowa Court “defer” to any pre-existing congressional
policy choices. As I have already made clear, the rule the Court chose
in Kiowa was divorced from, and in some ways contrary to any federal
interest. See Part I–A, supra; see also Kiowa, 523 U.S., at 765 (Ste-
vens, J., dissenting). And the rule is a “strikingly anomalous” depar-
ture from the immunities of other sovereigns in federal and state court.
Ibid. (observing that Kiowa conferred on Indian tribes “broader immun-
ity than the States, the Federal Government, and foreign nations”); see
also Florey, Indian Country’s Borders: Territoriality, Immunity, and
the Construction of Tribal Sovereignty, 51 Boston College L. Rev. 595,
627 (2010) (After Kiowa, “the actual contours of [tribal immunity]
remain astonishingly broad”).
Cite as: 572 U. S. ____ (2014) 9
THOMAS, J., dissenting
problem it created, simply by calling quantified standards
legislative”); National Metropolitan Bank v. United States,
323 U.S. 454, 456 (1945) (“[I]n the absence of an applica-
ble Act of Congress, federal courts must fashion the gov-
erning rules” in commercial-paper cases affecting the
rights and liabilities of the United States). We have the
same duty here.
II
Today, the Court reaffirms Kiowa. Unsurprisingly, it
offers no new substantive defense for Kiowa’s indefensible
view of tribal immunity. Instead, the majority relies on a
combination of the Kiowa Court’s purported deference to
Congress and considerations of stare decisis. I have al-
ready explained why it was error to ground the Kiowa rule
in deference to Congress. I turn now to stare decisis.
Contrary to the majority’s claim, that policy does not
require us to preserve this Court’s mistake in Kiowa. The
Court’s failure to justify Kiowa’s rule and the decision’s
untoward consequences outweigh the majority’s argu-
ments for perpetuating the error.
A
Stare decisis may sometimes be “the preferred course,”
but as this Court acknowledges, it is “not an inexorable
command.” Payne v. Tennessee, 501 U.S. 808, 827, 828
(1991). “[W]hen governing decisions are unworkable or
are badly reasoned,” id., at 827, or “experience has pointed
up the precedent’s shortcomings,” Pearson v. Callahan,
555 U.S. 223, 233 (2009), “ ‘this Court has never felt con-
strained to follow precedent,’ ” Payne, supra, at 827. See
also Gulfstream Aerospace Corp. v. Mayacamas Corp., 485
U.S. 271, 282–283 (1988) (overruling precedent as “defi-
cient in utility and sense,” “unsound in theory, unworka-
ble and arbitrary in practice, and unnecessary to achieve
any legitimate goals”). The discussion above explains why
10 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
THOMAS, J., dissenting
Kiowa was unpersuasive on its own terms. Now, the
adverse consequences of that decision make it even more
untenable.
In the 16 years since Kiowa, the commercial activities of
tribes have increased dramatically. This is especially evi-
dent within the tribal gambling industry. Combined tribal
gaming revenues in 28 States have more than tripled—from
$8.5 billion in 1998 to $27.9 billion in 2012. National
Indian Gaming Commission, 2012 Indian Gaming Reve-
nues Increase 2.7 Percent (July 23, 2013), online at http://
www.nigc.gov/LinkClick.aspx?fileticket=Fhd5shyZ1fM%3D
(all Internet materials as visited May 2, 2014, and availa-
ble in Clerk of Court’s case file). But tribal businesses
extend well beyond gambling and far past reservation
borders. In addition to ventures that take advantage of
on-reservation resources (like tourism, recreation, mining,
forestry, and agriculture), tribes engage in “domestic and
international business ventures” including manufacturing,
retail, banking, construction, energy, telecommunications,
and more. Graham, An Interdisciplinary Approach to
American Indian Economic Development, 80 N. D. L. Rev.
597, 600–604 (2004). Tribal enterprises run the gamut:
they sell cigarettes and prescription drugs online; engage
in foreign financing; and operate greeting cards compa-
nies, national banks, cement plants, ski resorts, and ho-
tels. Ibid.; see also, e.g., The Harvard Project on American
Indian Economic Development, The State of the Native
Nations 124 (2008) (Ho-Chunk, Inc., a tribal corporation
of the Winnebago Tribe of Nebraska, operates “hotels
in Nebraska and Iowa,” “numerous retail grocery
and convenience stores,” a “tobacco and gasoline distribu-
tion company,” and “a temporary labor service provider”);
Four Fires, San Manuel Band of Mission Indians, http://
www.sanmanuel-nsn.gov/fourfires.php.html) (four Tribes from
California and Wisconsin jointly own and operate a $43
million hotel in Washington, D. C.). These manifold com-
Cite as: 572 U. S. ____ (2014) 11
THOMAS, J., dissenting
mercial enterprises look the same as any other—except
immunity renders the tribes largely litigation-proof.
As the commercial activity of tribes has proliferated, the
conflict and inequities brought on by blanket tribal im-
munity have also increased. Tribal immunity significantly
limits, and often extinguishes, the States’ ability to protect
their citizens and enforce the law against tribal busi-
nesses. This case is but one example: No one can seriously
dispute that Bay Mills’ operation of a casino outside its
reservation (and thus within Michigan territory) would
violate both state law and the Tribe’s compact with Michi-
gan. Yet, immunity poses a substantial impediment to
Michigan’s efforts to halt the casino’s operation perma-
nently. The problem repeats itself every time a tribe fails
to pay state taxes, harms a tort victim, breaches a con-
tract, or otherwise violates state laws, and tribal immu-
nity bars the only feasible legal remedy. Given the wide
reach of tribal immunity, such scenarios are common-
place.4 See, e.g., Oneida Indian Nation of New York v.
Madison Cty., 605 F.3d 149, 163 (CA2 2010) (Cabranes,
J., joined by Hall, J., concurring) (“The holding in this case
comes down to this: an Indian tribe can purchase land
(including land that was never part of a reservation); refuse
——————
4 Lower courts have held that tribal immunity shields not only Indian
tribes themselves, but also entities deemed “arms of the tribe.” See,
e.g., Breakthrough Management Group, Inc. v. Chukchansi Gold Casino
& Resort, 629 F.3d 1173, 1191–1195 (CA10 2010) (casino and economic
development authority were arms of the Tribe); Memphis Biofuels, LLC
v. Chickasaw Nation Industries, Inc., 585 F.3d 917, 921 (CA6 2009)
(tribal conglomerate was an arm of the Tribe). In addition, tribal
immunity has been interpreted to cover tribal employees and officials
acting within the scope of their employment. See, e.g., Cook v. AVI
Casino Enterprises, Inc., 548 F.3d 718, 726–727 (CA9 2008); Native
American Distributing v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288,
1296 (CA10 2008); Chayoon v. Chao, 355 F.3d 141, 143 (CA2 2004) (per
curiam); Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of Fla.,
177 F.3d 1212, 1225–1226 (CA11 1999).
12 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
THOMAS, J., dissenting
to pay lawfully-owed taxes; and suffer no consequences
because the taxing authority cannot sue to collect the
taxes owed”); see also Furry v. Miccosukee Tribe of Indians
of Fla., 685 F.3d 1224 (CA11 2012) (Tribe immune from a
suit arising out of a fatal off-reservation car crash that
alleged negligence and violation of state dram shop laws);
Native American Distributing v. Seneca-Cayuga Tobacco
Co., 546 F.3d 1288 (CA10 2008) (tribal officials and a
tobacco-products manufacturer were immune from a suit
brought by a national distributor alleging breach of con-
tract and interstate market manipulation); Tonasket v.
Sargent, 830 F. Supp. 2d 1078 (ED Wash. 2011) (tribal
immunity foreclosed an action against the Tribe for illegal
price fixing, antitrust violations, and unfair competition),
aff ’d, 510 Fed. Appx. 648 (CA9 2013); Multimedia Games,
Inc. v. WLGC Acquisition Corp., 214 F. Supp. 2d 1131 (ND
Okla. 2001) (tribal immunity barred a suit alleging copy-
right infringement, unfair competition, breach of contract,
and other claims against a tribal business development
agency).
In the wake of Kiowa, tribal immunity has also been
exploited in new areas that are often heavily regulated by
States. For instance, payday lenders (companies that lend
consumers short-term advances on paychecks at interest
rates that can reach upwards of 1,000 percent per annum)
often arrange to share fees or profits with tribes so they
can use tribal immunity as a shield for conduct of ques-
tionable legality. Martin & Schwartz, The Alliance Be-
tween Payday Lenders and Tribes: Are Both Tribal Sover-
eignty and Consumer Protection at Risk? 69 Wash. & Lee
L. Rev. 751, 758–759, 777 (2012). Indian tribes have also
created conflict in certain States by asserting tribal im-
munity as a defense against violations of state campaign
finance laws. See generally Moylan, Sovereign Rules of
the Game: Requiring Campaign Finance Disclosure in the
Face of Tribal Sovereign Immunity, 20 B. U. Pub. Interest
Cite as: 572 U. S. ____ (2014) 13
THOMAS, J., dissenting
L. J. 1 (2010).
In sum, any number of Indian tribes across the country
have emerged as substantial and successful competitors in
interstate and international commerce, both within and
beyond Indian lands. As long as tribal immunity remains
out of sync with this reality, it will continue to invite
problems, including de facto deregulation of highly regu-
lated activities; unfairness to tort victims; and increas-
ingly fractious relations with States and individuals alike.
The growing harms wrought by Kiowa’s unjustifiable rule
fully justify overruling it.
B
In support of its adherence to stare decisis, the majority
asserts that “Congress has now reflected on Kiowa” and
has decided to “retain” the decision. Ante, at 18; see also
ante, at 19 (“[W]e act today against the backdrop of an
apparent congressional choice: to keep tribal immunity . . .
in a case like this one”). On its face, however, this is a
curious assertion. To this day, Congress has never granted
tribal sovereign immunity in any shape or form—much
less immunity that extends as far as Kiowa went. What
the majority really means, I gather, is that the Court must
stay its hand because Congress has implicitly approved of
Kiowa’s rule by not overturning it.
This argument from legislative inaction is unavailing.
As a practical matter, it is “ ‘ impossible to assert with any
degree of assurance that congressional failure to act rep-
resents’ affirmative congressional approval of ” one of this
Court’s decisions. Patterson v. McLean Credit Union, 491
U.S. 164, 175, n. 1 (1989) (quoting Johnson v. Transporta-
tion Agency, Santa Clara Cty., 480 U.S. 616, 672 (1987)
(SCALIA, J., dissenting)); see also Girouard v. United
States, 328 U.S. 61, 69 (1946) (“It is at best treacherous to
find in congressional silence alone the adoption of a con-
trolling rule of law”); Helvering v. Hallock, 309 U.S. 106,
14 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
THOMAS, J., dissenting
121 (1940) (“[W]e walk on quicksand when we try to find
in the absence of corrective legislation a controlling legal
principle”). There are many reasons Congress might not
act on a decision like Kiowa, and most of them have noth-
ing at all to do with Congress’ desire to preserve the deci-
sion. See Johnson, 480 U.S., at 672 (SCALIA, J., dissent-
ing) (listing various kinds of legislative inertia, including
an “inability to agree upon how to alter the status quo”
and “indifference to the status quo”).
Even assuming the general validity of arguments from
legislative inaction, they are a poor fit in this common-law
context. Such arguments are typically based on the prem-
ise that the failure of later Congresses to reject a judicial
decision interpreting a statute says something about what
Congress understands the statute to mean. See, e.g., id.,
at 629, n. 7 (majority opinion). But it is not clear why
Congress’ unenacted “opinion” has any relevance to de-
termining the correctness of a decision about a doctrine
created and shaped by this Court. Giving dispositive
weight to congressional silence regarding a common-law
decision of this Court effectively codifies that decision
based only on Congress’ failure to address it. This ap-
proach is at odds with our Constitution’s requirements for
enacting law. Cf. Patterson, supra, at 175, n. 1 (“Congress
may legislate . . . only through the passage of a bill which
is approved by both Houses and signed by the President.
Congressional inaction cannot amend a duly enacted
statute” (citation omitted)). It is also the direct opposite of
this Court’s usual approach in common-law cases, where
we have made clear that, “in the absence of an applicable
Act of Congress, federal courts must fashion the governing
rules.” National Metropolitan Bank, 323 U.S., at 456; see
also supra, at 11–12; Moragne v. States Marine Lines, Inc.,
398 U.S. 375, 378 (1970) (precedent barring recovery for
wrongful death, “somewhat dubious even when rendered,
is such an unjustifiable anomaly in the present maritime
Cite as: 572 U. S. ____ (2014) 15
THOMAS, J., dissenting
[common] law that it should no longer be followed”).5
Allowing legislative inaction to guide common-law deci-
sionmaking is not deference, but abdication.6
In any event, because legislative inaction is usually
——————
5 The majority appears to agree that the Court can revise the judicial
doctrine of tribal immunity, because it reserves the right to make an
“off-reservation” tort exception to Kiowa’s blanket rule. See ante, at 16,
n. 8. In light of that reservation, the majority’s declaration that it is
“Congress’s job . . . to determine whether or how to limit tribal immu-
nity” rings hollow. Id., at 17. Such a judge-made exception would no
more defer to Congress to “make the call whether to curtail a tribe’s
immunity” than would recognizing that Kiowa was wrongly decided in
the first instance. Id., at 18. In any event, I welcome the majority’s
interest in fulfilling its independent responsibility to correct Kiowa’s
mistaken extension of immunity “without any exceptions for commer-
cial or off-reservation conduct.” Id., at 15. I regret only that the Court
does not see fit to take that step today.
6 Of course, stare decisis still applies in the common-law context; I
reject only the notion that arguments from legislative inaction have any
place in the analysis.
I also reject the majority’s intimation that stare decisis applies as
strongly to common-law decisions as to those involving statutory
interpretation. The majority asserts that stare decisis should have
“ ‘special force’ ” in this case because “ ‘Congress remains free to alter
what we have done.’ ” Ante, at 16 (quoting Patterson v. McLean Credit
Union, 491 U.S. 164, 172–173 (1989)). Although the Court has invoked
this reasoning in the statutory context, I am not aware of a case in
which we have relied upon it to preserve a common-law decision of this
Court. Indeed, we have minimized that reasoning when interpreting
the Sherman Act precisely because “the Court has treated the Sherman
Act as a common-law statute.” Leegin Creative Leather Products, Inc.
v. PSKS, Inc., 551 U.S. 877, 899 (2007) (emphasis added); see also
State Oil Co. v. Khan, 522 U.S. 3, 20–21 (1997) (“[T]he general pre-
sumption that legislative changes should be left to Congress has less
force with respect to the Sherman Act in light of the accepted view that
Congress ‘expected the courts to give shape to the statute’s broad
mandate by drawing on common-law tradition’ ”). Surely no higher
standard of stare decisis can apply when dealing with common law
proper, which Congress certainly expects the Court to shape in the
absence of legislative action. See, e.g., National Metropolitan Bank v.
United States, 323 U.S. 454, 456 (1945).
16 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
THOMAS, J., dissenting
indeterminate, we “ ‘require very persuasive circumstances
enveloping Congressional silence to debar this Court from
reexamining its own doctrines.’ ” Girouard, supra, at 69.
Here, the majority provides nothing that solidifies the
inference of approval it draws from congressional silence
in the wake of Kiowa.
First, the majority cites two Senate bills that proposed
to abrogate tribal immunity for contract and tort claims
against tribes. See S. 2299, 105th Cong., 2d Sess. (1998)
(contract claims); S. 2302, 105th Cong., 2d Sess. (1998)
(tort claims). Neither bill expresses Congress’ views on
Kiowa’s rule, for both died in committee without a vote.
Second, the majority notes various post-Kiowa enact-
ments that either abrogate tribal immunity in various
limited contexts or leave it be. See ante, at 18, 19, n. 10.
None of these enactments provides a reason to believe that
Congress both considered and approved Kiowa’s holding.
None of them targets with any precision the immunity of
Indian tribes for off-reservation commercial activities.
See, e.g., Indian Tribal Economic Development and Con-
tract Encouragement Act of 2000 (codified at 25 U.S. C.
§81(d)(2)) (for contracts that encumber Indian lands for
more than seven years, tribes must either provide for
breach-of-contract remedies or disclose tribal immunity if
applicable). And given the exceedingly narrow contexts in
which these provisions apply, see, e.g., Arizona Water
Settlements Act, §213(a)(2), 118 Stat. 3531 (abrogating
one tribe’s immunity for the limited purpose of enforcing
water settlements), the far stronger inference is that
Congress simply did not address Kiowa or its extension of
immunity in these Acts; rather, Congress considered only
whether an abrogation of judge-made tribal immunity was
necessary to the narrow regulatory scheme on the table.
See, e.g., Prevent All Cigarette Trafficking Act of 2009,
§§2(e), 3(a), 124 Stat. 1101, 1108.
The majority posits that its inference of congressional
Cite as: 572 U. S. ____ (2014) 17
THOMAS, J., dissenting
approval of Kiowa is stronger because Congress failed to
act after the Kiowa Court “urg[ed]” Congress to consider
the question presented. Ante, at 17, 19–20 (quoting
Kiowa, 523 U.S., at 758) (“[W]e defer to the role Congress
may wish to exercise in this important judgment”). But
this circumstance too raises any number of inferences.
Congress is under no obligation to review and respond to
every statement this Court makes; perhaps legislative
inertia simply won out. The majority seems to suggest
that Congress understood Kiowa to assign the burgeoning
problems of expansive common-law immunity to the Legis-
lature, and then chose to let those problems fester. But
Congress has not explained its inaction, and we should not
pretend that it has done so by remaining silent after we
supposedly prodded it to say something. Even if we credit
the relevance of post-Kiowa congressional silence in this
common-law context—and I do not—there is certainly not
enough evidence of congressional acquiescence here “that
we can properly place on the shoulders of Congress the
burden of the Court’s own error.” Girouard, 328 U.S., at
69–70.
C
The majority’s remaining arguments for retaining Kiowa
are also unconvincing.
First, the majority characterizes Kiowa as one case in a
“long line of precedents” in which the Court has recognized
tribal immunity “without any exceptions for commercial or
off-reservation conduct.” Ante, at 15. True, the Court has
relied on tribal immunity as a general matter in several
cases. But not until Kiowa were we required to decide
whether immunity should extend to commercial activities
beyond Indian reservations. See supra, at 7. And after
Kiowa, we have mentioned it only once, and then only in
dicta. C & L Enterprises, Inc. v. Citizen Band Potawatomi
Tribe of Okla., 532 U.S. 411, 418 (2001) (holding that the
18 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
THOMAS, J., dissenting
Tribe had waived its immunity in a construction contract).
Thus, overturning Kiowa would overturn Kiowa only.
Second, the majority suggests that tribes and their
business partners have now relied on Kiowa in structuring
their contracts and transactions. Ante, at 15. But even
when Kiowa extended the scope of tribal immunity, it was
readily apparent that the Court had strong misgivings
about it. Not one Member of the Kiowa Court identified a
substantive justification for its extension of immunity:
Three would not have expanded the immunity in the first
place, Kiowa, 523 U.S., at 760 (Stevens, J., dissenting),
and the other six essentially expressed hope that Congress
would overrule the Court’s decision, see id., at 758–759.
Against that backdrop, it would hardly be reasonable for a
tribe to rely on Kiowa as a permanent grant of immunity
for off-reservation commercial activities. In any event, the
utter absence of a reasoned justification for Kiowa’s rule
and its growing adverse effects easily outweigh this gen-
eralized assertion of reliance. See, e.g., Leegin Creative
Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 906
(2007) (in the antitrust context, overturning the per se rule
against vertical price restraints in part because the “reli-
ance interests” in the case could not “justify an inefficient
rule”).
* * *
In Kiowa, this Court adopted a rule without a reason: a
sweeping immunity from suit untethered from commercial
realities and the usual justifications for immunity, prem-
ised on the misguided notion that only Congress can place
sensible limits on a doctrine we created. The decision was
mistaken then, and the Court’s decision to reaffirm it in
the face of the unfairness and conflict it has engendered is
doubly so. I respectfully dissent.
Cite as: 572 U. S. ____ (2014) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–515
_________________
MICHIGAN, PETITIONER v. BAY MILLS INDIAN
COMMUNITY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[May 27, 2014]
JUSTICE GINSBURG, dissenting.
I join JUSTICE THOMAS’ dissenting opinion with one
reservation. Kiowa Tribe of Okla. v. Manufacturing Tech-
nologies, Inc., 523 U.S. 751 (1998), held for the first time
that tribal sovereign immunity extends to suits arising out
of an Indian tribe’s off-reservation commercial activity.
For the reasons stated in the dissenting opinion I joined
in Kiowa, id., at 760–766 (opinion of Stevens, J.), and co-
gently recapitulated today by JUSTICE THOMAS, this Court’s
declaration of an immunity thus absolute was and re-
mains exorbitant. But I also believe that the Court has
carried beyond the pale the immunity possessed by States
of the United States. Compare ante, at 3, n. 3 (THOMAS,
J., dissenting), with Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 100 (1996) (Souter, J., dissenting) (“[T]he Court
today holds for the first time since the founding of the
Republic that Congress has no authority to subject a State
to the jurisdiction of a federal court at the behest of an
individual asserting a federal right. . . . I part company
from the Court because I am convinced its decision is
fundamentally mistaken.”); Kimel v. Florida Bd. of Re-
gents, 528 U.S. 62, 93 (2000) (Stevens, J., dissenting in
part and concurring in part) (“Congress’ power to author-
ize federal remedies against state agencies that violate
federal statutory obligations is coextensive with its power
2 MICHIGAN v. BAY MILLS INDIAN COMMUNITY
GINSBURG, J., dissenting
to impose those obligations on the States in the first place.
Neither the Eleventh Amendment nor the doctrine of
sovereign immunity places any limit on that power.”);
Alden v. Maine, 527 U.S. 706, 814 (1999) (Souter, J.,
dissenting) (court’s enhancement of the States’ immunity
from suit “is true neither to history nor to the structure of
the Constitution”). Neither brand of immoderate, judi-
cially confirmed immunity, I anticipate, will have staying
power.