The United States Supreme Court's Decision in Michigan v. Bay Mills Indian Community

Floor Speech

Mr. COLE. Mr. Speaker, on May 27, 2014 the United States Supreme Court issued its decision in Michigan v. Bay Mills Indian Community, wherein the Court affirmed the sovereign immunity of our Nation's federally-recognized Indian tribes for off-reservation commercial activities. Because the United States Constitution expressly and exclusively grants to Congress plenary authority over every one of our Nation's 566 federally-recognized Indian tribes, I rise to provide my views on this decision that can have serious ramifications for Indian Country.

As the Court's Bay Mills decision correctly observes, our nation's federally recognized Indian tribes are independent governments whose sovereignty pre-dates the United States Constitution. Our founding fathers wisely chose to subject Indian tribes solely to the authority of the United States Congress, to the exclusion of state governments, as well as the Executive and Judicial branches of the federal government. And though Indian tribes are subject to the authority of Congress, they retain all of their inherent and historic sovereign powers, except as those powers may be expressly modified by Congress. If Congress does not act to take away the sovereign powers of Indian tribes, those powers are retained.

One of the most important attributes of sovereignty possessed by Indian tribes is sovereign immunity from suit, including suits initiated by State governments. In addition to being consistently affirmed by decisions of our nation's highest court over the past two centuries, tribal sovereign immunity has been repeatedly acknowledged and confirmed in federal case precedent. Thus the Supreme Court correctly upheld the sovereign immunity of the Bay Mills Indian Community, and affirmed the express desire of Congress that Indian tribes retain the fullest extent of their immunity from suit.

Like state and federal governments, Indian tribes rely on their inherent sovereign powers, including immunity, to protect their treasuries and further their economies. These sovereign powers are vital for any government to provide essential programs and services for its citizens and are critical in maintaining the viability of our nation's Indian tribes, many of which are located in the most economically depressed regions of the country and have been under constant duress due to severe cutbacks in federal funding over the past several decades. For Indian tribes, sovereign immunity is necessary not only to protect the Tribes from private litigants, but also to prevent state governments from overstepping their constitutional authority and diminishing the rights and sovereignty of Indian tribes through litigation. As the Supreme Court acknowledged in the Bay Mills Indian Community decision, only Congress has the authority to diminish the sovereign rights of Indian tribes.

While I applaud the Supreme Court's decision affirming Tribal sovereign immunity, I am deeply disturbed by dicta in the Court's majority opinion that is not only at odds with the Constitution and prior Supreme Court precedent, but is an affront to tribal sovereignty. In its majority opinion, the Court suggests that a state may bring a suit for prospective injunctive relief against tribal officials for alleged violations of state law based on the doctrine of Ex Parte Young. Prior Supreme Court precedent, however, has made clear that the doctrine of Ex Parte Young only permits suit for prospective injunctive relief against government officials for alleged violations of federal law, not for alleged violations of state law. The basis for authorizing such suits against government officials is that federal law is supreme to state and tribal law, and thus states and tribes cannot officially authorize their officials to violate federal law. However, state law is not supreme to tribal law under the United States Constitution. The Court's suggestion that tribal officials acting in their official capacity are subject to suit for alleged violations of state law is not only in clear conflict with prior Supreme Court precedent, but permitting such suits would eviscerate tribal sovereign immunity by giving states the ability to do indirectly what our Constitution has prohibited from them doing directly: exercising jurisdiction and authority over Indian tribal governments through litigation. Furthermore, it will undoubtedly expose tribal officials to individual liability and aggravation if they are named in baseless Ex Parte Young suits.

Perhaps worse, the Supreme Court's Bay Mills decision includes dicta suggesting that, if civil remedies against Indian tribes and their officials ``prove[] inadequate,'' a state may bring criminal charges against tribal officials acting in their official capacity for alleged violations of state law. This also would enable states to trump the sovereign rights of Indian tribes by criminalizing what would otherwise be civil, government-to-government disputes between states and Indian tribes. Such action would violate the United States Constitution and the sovereign rights of Indian tribes that the Constitution guarantees. Again, the Constitution withholds from States the authority to exercise jurisdiction and power over Indian tribes, and grants that power solely to Congress. The Supreme Court does not have the power to usurp Congress' Constitutionally granted plenary power over Indian affairs by granting States the right to criminalize the exercise of tribal sovereignty where Congress has not seen fit to do so. And again, it will be tribal officials acting in their official capacity that could be exposed to potential criminal liability for doing the very same thing that all of us who are here as elected officials are trying to do--be good civil servants.

Therefore, I urge our federal and state judiciaries to treat the above-referenced dicta (and erroneous dicta at that) in the Bay Mills decision as just that: non-binding dicta, and to instead uphold the United States Constitution by deferring to Congress on all issues involving tribal-state conflicts. Where Congress has not expressly chosen to subject Indian tribes to state jurisdiction or authority, the states cannot usurp Congress' plenary and exclusive authority over Indian tribes by bringing suits or criminal charges against tribal officials for alleged violations of state law as a means of exercising control over sovereign Indian tribes.

Source