Rights Without Remedies

Abstract

In Michigan v. Bay Mills Indian Community, the Supreme Court issued a critically important decision on tribal sovereign immunity denying Michigan a forum to enforce its alleged rights under the Indian Gaming Regulatory Act and under state law. The decision reminds me of Oklahoma Tax Commission v. Citizen Potawatomi Nation, where the Court held that Oklahoma could tax tribal smokeshops, but could not sue the tribe to force remittance of the tax revenue. And so for the second time in recent decades, the Court issued a decision that a state had a right under federal Indian law that was unenforceable against an Indian tribe due to sovereign immunity – in other words, a right without a remedy.

The Supreme Court’s primary reasoning in the Bay Mills matter directly focuses the resolution of these kinds of disputes on Congress. Bay Mills did not simply reaffirm tribal immunity – the Court strongly reaffirmed something known as the clear statement rule. The reaffirmation of the clear statement rule could impact many areas of tribal governance beyond tribal sovereign immunity, including labor relations, treaty rights, tribal court jurisdiction, and of course Indian taxation. This paper parses out where the clear statement rule can by utilized by tribal interests for maximum effect, and where reliance upon the rule could generate signals to Congress.

I conclude by identifying the logical outcome of reliance upon the clear statement rule – Congressional reconsideration of tribal immunities. Indian country’s focus on litigation may be forced to give way to the legislative arena. There, tribal interests may be confronted with the rhetoric of rights without remedies.

Keywords: Michigan v. Bay Mills Indian Community, Cayuga Indian Nation v. Seneca County, Indian taxation, tribal sovereign immunity, clear statement rule, rights without remedies