|Peter d'Errico discusses tribal sovereign immunity and Michigan
v. Bay Mills Indian Community, which was heard by the U.S. Supreme Court on December 2:
Sovereign immunity is an old concept. As pointed out in Bay Mills's brief, Alexander Hamilton described immunity as "inherent in the nature of sovereignty." In 1858, the U.S. Supreme Court described sovereign immunity as an "established principle of jurisprudence in all civilized nations." But Michigan (along with seventeen other states in an amicus brief in support of Michigan) is chafing at the fact that American Indian Nations have sovereign immunity, too.
Michigan's brief described tribal-immunity as having a "dubious foundation." The brief argues, "Indian tribes have no rights under the United States Constitution to any attributes of sovereignty. Congress therefore has plenary authority to prescribe the limits of - or eliminate entirely—tribal powers of local self-government." At another point, the brief asserts, "tribal immunity has no constitutional dimension and is solely a creature of the common law," and says, "tribes' status is entirely dependent on the will of Congress."
Michigan's brief concludes, "Since tribes are subject to the plenary authority of Congress, there is no reason for courts to exercise the same caution [they would when considering an abrogation of state or federal immunity] when considering an abrogation of a tribe's common-law immunity…."
In contrast, Michigan asserts, "state immunity is constitutional": "The only authority that Congress has over the states is the power the states themselves transferred to Congress in the Constitution." Michigan wants its cake and let the Indians do without.
Get the Story:
The Maddening and Dangerous Muddle of Federal Indian Law
(Indian Country Today 12/23)