In the first part of this two-part series, we provided a short history of the upcoming U.S. Supreme Court case State of Michigan v. Bay Mills Indian Community, discussed its relevance to the sustainability of the legal doctrine of tribal sovereign immunity, and detailed two potential outcomes of the case, what they would mean for tribes, and what tribes should consider doing to prepare. In this part, we detail two other, far more harmful potential outcomes, and offer tribes some concluding food for thought about the relationship between tribal sovereign immunity and their efforts to govern well.
POTENTIAL OUTCOME # 3: The Supreme Court finds that the Indian Gaming Regulatory Act (IGRA) does not explicitly abrogate sovereign immunity, but instead finds that sovereign immunity was implicitly abrogated by Congress or waived by the Bay Mills Indian Community.
In this scenario, the Supreme Court breaks from its long-held precedent that tribal sovereign immunity can be waived only when a tribe explicitly does so, or when Congress explicitly abrogates it. In essence, the Supreme Court would create a new common law test to determine whether a statute or a tribe implicitly waives sovereign immunity. For example, the Court might argue that when reading IGRA in its entirety, it’s clear that the intent of Congress was to eliminate sovereign immunity for all cases that grow out of gaming regardless of whether they did so explicitly or not. Or, alternatively, the Supreme Court might hold that the Bay Mills Indian Community’s actions – opening a gaming facility – is sufficient to indicate that it waived sovereign immunity in the context of gaming.
Just as in Potential Outcome # 2, the Supreme Court could distinguish between commercial activities and governmental activities, and it could distinguish between off-reservation activities and on-reservation activities. For instance, if the Supreme Court went down this path, it’s more likely it would find a waiver of immunity in cases where tribal actions occur off-reservation and when those actions involve commercial activities – regardless of the language of relevant Congressional statutes.
What It Will Mean for Tribes: If the Supreme Court finds an implicit waiver of sovereign immunity, then tribes must be prepared to defend themselves against a flood of lawsuits that would be brought under this new standard – not just under IGRA, but also under any other Congressional statute that may be read as granting an implicit waiver. This result would be devastating for tribes and would fundamentally change the legal and governance universe in which they operate.
What Tribes Should Consider Doing: If the Supreme Court finds an implicit waiver by tribes of sovereign immunity, tribes will need to takes steps to clearly define in their own codes and processes when they are waiving sovereign immunity and when they are not. For example, tribal statutes should be drafted to indicate the circumstances under which the tribe will explicitly waive its immunity, the procedures for waiving immunity, the body or bodies that have authority to waive immunity, any limitations on the waiver, and in what forum the waiver mandates that disputes be resolved. As previously mentioned, any changes to the amount of risk tribal assets are subject to should be insured appropriately.
If the Supreme Court finds an implicit abrogation by Congress of sovereign immunity, tribes still should consider reforming their codes with respect to waivers of sovereign immunity, but tribes likely will need to do more to protect themselves. If the Supreme Court is willing to read implied abrogations of sovereign immunity into Congressional statutes, then a whole host of potential lawsuits that were previously unavailable against tribes may become available to existing and potential plaintiffs.
For example, it is not impossible that courts could begin to find implied abrogations of sovereign immunity in statutes like the Indian Civil Rights Act, which would open up tribal assets to a host of lawsuits by tribal citizens for alleged civil rights violations that previously could not be brought. As such, tribes need to work with their legal teams and one another to identify the far reaches of the Supreme Court’s decision in these circumstances. In so doing, tribes should once again consider drafting their own rules and procedures that would waive sovereign immunity in a strategic, controlled fashion. Regarding the Indian Civil Rights Act, tribes could write a statute that waives their immunity for any claims that may arise under the statute, but could preclude money awards in such cases and instead allow the court to make orders instructing the government to resolve the civil rights issue moving forward (i.e. prospective injunctive relief). Once again, when risk can be quantified, tribal insurance policies should be altered to reflect the new reality.
POTENTIAL OUTCOME # 4: The Supreme Court could decide that IGRA does not abrogate sovereign immunity, but that the Supreme Court has the power to limit immunity even in the absence of explicit Congressional intent. In this scenario, the Supreme Court would simply hold that tribal sovereign immunity is a judicial creation and a part of federal common law and, therefore, it is the Supreme Court, and not Congress, that can limit or destroy tribal sovereign immunity. This would be a departure from previous Supreme Court rulings, but there is evidence from prior cases that the Supreme Court could go down this road.
What It Will Mean for Tribes: Under this doomsday scenario, the consequences for tribes would range from significant to catastrophic, with no one precisely sure of the chaos it could create. For example, the Court – exerting this newfound, self-proclaimed authority – could decide to limit sovereign immunity only in cases that involve off-reservation commercial activities. This obviously would have enormous consequences for many tribal gaming operations, for example, as those operations suddenly would be subject to contract and tort lawsuits without sovereign immunity to use in their defense.
The Court could go a step further and indicate that all tribal commercial activities – whether on-reservation or off-reservation – no longer enjoy the doctrine of sovereign immunity. In this scenario, all tribally owned businesses would be subject to liability regardless of their location.
Or the Court simply could decide to eliminate the doctrine altogether, which would mean that neither tribal commercial activities nor tribal governmental activities could be protected by sovereign immunity any longer. One could envision the Court going as far as essentially reversing landmark cases like Santa Clara v. Martinez, subjecting tribes to something akin to Section 1983 actions (actions brought against tribal officials and employees for alleged violations of U.S. Constitutional rights). Additionally, if tribal sovereign immunity were eliminated, a whole host of federal statutes that previously did not apply to tribes now could. For instance, one could expect a bevy of new cases filed against tribes using the Americans with Disabilities Act, the National Labor Relations Act, the Equal Employment Opportunity Act, and other statutes as their basis. A final determination on whether such statutes apply to tribes would likely require years of litigation, but the question suddenly would be an open one.
What Tribes Should Consider Doing: The extent to which tribes would need to act would depend on how the Court decided to limit sovereign immunity. In circumstances where some semblance of tribal sovereign immunity remains, tribes should consider developing a comprehensive ordinance articulating the waiver of sovereign immunity as a voluntary action of the tribe. This comprehensive ordinance would need to prescribe specific procedures for the waiver of immunity on a voluntary basis, thereby limiting the potential for the finding of implicit waivers.
If the Court decides to crush the entire doctrine, then tribes should consider developing comprehensive statutes that allow for remedies in all conceivable circumstances. The goal would be to get ahead of any forthcoming litigation by creating causes of actions, procedures, and remedies in contexts that otherwise would end up in federal court. Without sovereign immunity to fall back on, this would not only include tort and contract cases, but also actions related to statutes that may prospectively apply to tribes.
In addition, tribes would want to confine risk by defining remedies. Tribes should also update insurance policies to reflect their new positions of risk. Beyond that, however, tribes would need to determine which of their assets were only being protected through the use of sovereign immunity. For example, tribes should reassess all of their trust accounts and other economic and real property holdings to determine if they might be subject to litigation. In such a circumstance, a top-notch trust attorney would be a smart investment in order to help protect the tribal treasury and assets.
There remains a tiny sliver of hope that the Court will issue a ruling that falls outside the hierarchy of horrors detailed above, or that it could remand the case back to the lower courts on some sort of legal technicality. But more likely than not, its opinion in the Bay Mills case will exact new limitations on the scope and functionality of tribal sovereign immunity, which will require tribes to adapt accordingly. But the beauty of tribal sovereignty is that there is nothing preventing tribes from taking action to prepare for a post-Bay Mills world, and nothing preventing them from taking action now. With just six months to go before the ruling is handed down, time is of the essence. Tribes would be wise to seek out those who can help them understand in minute detail what a post-Bay Mills world will mean for them, and then develop and implement plans of action that preserve their ability to exercise their sovereignty and achieve their goals – if not strengthen it.
Truth be told, all of the strategies offered above – creating an ordinance that codifies a tribe’s formal policy on sovereign immunity and waivers of that immunity, developing a tort claims act, creating avenues of redress for those who feel their civil rights have been violated, strengthening their court systems to enforce these measures, etc. – are things tribes should consider doing Bay Mills or no Bay Mills because it promotes good governance, governance that is accountable to citizens and non-citizens alike for the decisions tribes and tribal officials make. The fact that many tribes (as well as some states) already have done so is evidence of that fact.
Note: The Native Nations Institute for Leadership, Management and Policy (NNI) was founded by the Morris K. Udall and Stewart L. Udall Foundation and The University of Arizona in 2001
Ryan Seelau is a Senior Researcher with the Native Nations Institute for Leadership, Management, and Policy at the University of Arizona as well as a licensed attorney. He has advanced law degrees from the Indigenous Peoples Law and Policy program at the University of Arizona. Ian Record, Ph.D. is Manager, Educational Resources and Director, Rebuilding Native Nations course series for the Native Nations Institute for Leadership, Management, and Policy.