OCTOBER TERM, 1997
Syllabus
KIOWA TRIBE OF OKLAHOMA
v. MANUFACTURING TECHNOLOGIES,
INC.
CERTIORARI TO THE COURT OF CIVIL APPEALS OF OKLAHOMA, FIRST
DIVISION
No. 96-1037. Argued January 12, 1998-Decided May 26,1998
Petitioner, a federally recognized Indian Tribe, owns land in
Oklahoma, and the United States holds land in trust for it there.
After the Tribe's industrial development commission agreed to buy
from respondent certain stock issued by a third party, the
then-chairman of its business committee signed a promissory note,
in the Tribe's name, agreeing to pay respondent $285,000 plus
interest. The note recites it was signed at Carnegie, Oklahoma,
where the Tribe has a complex on trust land. According to
respondent, however, the note was executed and delivered in
Oklahoma City, beyond tribal lands, and obligated the Tribe to make
its payments in that city. The note does not specify a governing
law, but provides that nothing in it subjects or limits the Tribe's
sovereign rights. The Tribe defaulted on the note; respondent sued
in state court; and the Tribe moved to dismiss for lack of
jurisdiction, relying in part on its sovereign immunity from suit.
The trial court denied the motion and entered judgment for
respondent. The Oklahoma Court of Civil Appeals affirmed, holding
that Indian tribes are subject to suit in state court for breaches
of contract involving off-reservation commercial conduct.
Held: Indian tribes enjoy sovereign immunity from civil
suits on contracts, whether those contracts involve governmental or
commercial activities and whether they were made on or off a
reservation. As a matter of federal law, a tribe is subject to suit
only where Congress has authorized the suit or the tribe has waived
its immunity. See,
e. g.,
Three Affiliated Tribes of Fort
Berthold Reservation v.
Wold Engineering, P. c.,
476 U. S.
877,890. Respondent's request to confine such immunity to
transactions on reservations and to tribal governmental activities
is rejected. This Court's precedents have not drawn those
distinctions, see,
e. g., Puyallup Tribe, Inc. v.
Department of Game of Wash., 433 U. S. 165, 168, 172,
and its cases allowing States to apply their substantive laws to
tribal activities occurring outside Indian country or involving
nonmembers have recognized that tribes continue to enjoy immunity
from suit, see,
e. g., Oklahoma Tax Comm'n v.
Citizen
Band of Potawatomi Tribe of Okla., 498 U. S. 505, 510. The
Okla-
752
Syllabus
homa Court of Civil Appeals' belief that federal law does not
mandate such immunity is mistaken. It is a matter of federal law
and is not subject to diminution by the States.
E. g.,
Three Affiliated Tribes, supra, at 891. Nevertheless, the
tribal immunity doctrine developed almost by accident: The Court's
precedents reciting it, see,
e. g., United States v.
United States Fidelity &
Guaranty Co., 309 U. S. 506, 512, rest
on early cases that assumed immunity without extensive reasoning,
see,
e. g., Turner v.
United States, 248 U. S. 354, 358. The
wisdom of per petuating the doctrine may be doubted, but the Court
chooses to adhere to its earlier decisions in deference to
Congress, see
Potawatomi, supra, at 510, which may wish to
exercise its authority to limit tribal immunity through explicit
legislation, see,
e. g., Santa Clara Pueblo v.
Martinez, 436
U. S. 49, 58. Congress has not done so thus far, nor has
petitioner waived immunity, so it governs here. Pp. 754-760.
Reversed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, SOUTER, and BREYER, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in which THOMAS
and GINSBURG, JJ., joined,
post, p. 760.
R. Brown Wallace argued the cause for petitioner. With
him on the briefs was
Shelia D. Tims.
Edward C. DuMont argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Acting
Solicitor General Dellinger, Assistant Attorney General Schiffer,
Deputy Solicitor General Kneedler, and David C. Shilton.
John E. Patterson, Jr., argued the cause and filed a
brief for respondent. *
*Briefs of
amici curiae urging reversal were filed for
the Assiniboine and Sioux Tribes of the Fort Peck Reservation et
al. by
William R. Perry; for the Cheyenne-Arapaho Tribes of
Oklahoma et al. by
Donald R. Wharton and
Kim Jerome
Gottschalk; for the Choctaw Nation of Oklahoma et al. by
Bob
Rabon; for the Cow Creek Band of Umpqua Tribe of Indians et al.
by
Michael J.
Wahoske; for the Fond Du Lac Band of
Lake Superior Chippewa by
Dennis J.
Peterson and
Henry M. Buffalo, Jr.; for the Navajo Nation et al. by
Paul E. Frye; for the Seminole Nation of Oklahoma et al. by
D. Michael McBride III and
David A. Mullon, Jr.; and
for
753
JUSTICE KENNEDY delivered the opinion of the Court.
In this commercial suit against an Indian Tribe, the Oklahoma
Court of Civil Appeals rejected the Tribe's claim of sovereign
immunity. Our case law to date often recites the rule of tribal
immunity from suit. While these precedents rest on early cases that
assumed immunity without extensive reasoning, we adhere to these
decisions and reverse the judgment.
I
Petitioner Kiowa Tribe is an Indian Tribe recognized by the
Federal Government. The Tribe owns land in Oklahoma, and, in
addition, the United States holds land in that State in trust for
the Tribe. Though the record is vague about some key details, the
facts appear to be as follows: In 1990, a tribal entity called the
Kiowa Industrial Development Commission agreed to buy from
respondent Manufacturing Technologies, Inc., certain stock issued
by Clinton-Sherman Aviation, Inc. On April 3, 1990, the
then-chairman of the Tribe's business committee signed a promissory
note in the name of the Tribe. By its note, the Tribe agreed to pay
Manufacturing Technologies $285,000 plus interest. The face of the
note recites it was signed at Carnegie, Oklahoma,
the Shakopee Mdewakanton Sioux (Dakota) Community et al. by
Steven
Briefs of
amici curiae urging affirmance were filed for
the State of Oklahoma by
W A. Drew Edmondson, Attorney
General, and
Neal Leader, Senior Assistant Attorney General;
for the State of South Dakota et al. by
Mark W Barnett,
Attorney General of South Dakota, and
John Patrick Guhin,
Deputy Attorney General, and by the Attorneys General for their
respective States as follows:
Bruce M. Botelho of Alaska,
Daniel E. Lungren of California,
Richard Blumenthal
of Connecticut,
Robert A. Butterworth of Florida,
Margery S.
Bronster of Hawaii,
Richard P.
Ieyoub of Louisiana,
Scott Harshbarger of Massachusetts,
Frank J.
Kelley of Michigan,
Joseph P. Mazurek
of Montana,
Philip T. McLaughlin of New Hampshire,
Dennis C.
Vacco of New York,
Jan Graham of
Utah,
William H. Sorrell of Vermont, and
James E.
Doyle of Wisconsin; and for the First National Bank of Altus et
al. by
Steven W Bugg and
Richard H. Goldberg.
754
where the Tribe has a complex on land held in trust for the
Tribe. According to respondent, however, the Tribe executed and
delivered the note to Manufacturing Technologies in Oklahoma City,
beyond the Tribe's lands, and the note obligated the Tribe to make
its payments in Oklahoma City. The note does not specify a
governing law. In a paragraph entitled "Waivers and Governing Law,"
it does provide:
"Nothing in this Note subjects or limits the sovereign rights of
the Kiowa Tribe of Oklahoma." App. 14.
The Tribe defaulted; respondent sued on the note in state court;
and the Tribe moved to dismiss for lack of jurisdiction, relying in
part on its sovereign immunity from suit. The trial court denied
the motion and entered judgment for respondent. The Oklahoma Court
of Civil Appeals affirmed, holding Indian tribes are subject to
suit in state court for breaches of contract involving
off-reservation commercial conduct. The Oklahoma Supreme Court
declined to review the judgment, and we granted certiorari. 521 U.
S. 1117 (1997).
II
As a matter of federal law, an Indian tribe is subject to suit
only where Congress has authorized the suit or the tribe has waived
its immunity. See
Three Affiliated Tribes of Fort Berthold
Reservation v.
Wold Engineering, P. c.,
476 U. S. 877, 890
(1986);
Santa Clara Pueblo v.
Martinez, 436 U. S. 49, 58 (1978);
United States v.
United States Fidelity & Guaranty
Co., 309 U. S.
506, 512 (1940)
(USF&G). To date, our cases have
sustained tribal immunity from suit without drawing a distinction
based on where the tribal activities occurred. In one case, a state
court had asserted jurisdiction over tribal fishing "both on and
off its reservation."
Puyallup Tribe, Inc. v.
Department
of Game of Wash., 433 U. S. 165, 167 (1977). We held the
Tribe's claim of immunity was "well founded," though we did not
discuss the relevance of where the fishing had taken place.
Id., at 168, 172. Nor have we yet drawn a distinction
between governmental
755
and commercial activities of a tribe. See,
e. g., ibid.
(recognizing tribal immunity for fishing, which may well be a
commercial activity);
Oklahoma Tax Comm'n v.
Citizen Band
of Potawatomi Tribe of Okla., 498 U. S. 505 (1991)
(recognizing tribal immunity from suit over taxation of cigarette
sales);
USF&G, supra, (recognizing tribal immunity for
coalmining lease). Though respondent asks us to confine immunity
from suit to transactions on reservations and to governmental
activities, our precedents have not drawn these distinctions.
Our cases allowing States to apply their substantive laws to
tribal activities are not to the contrary. We have recognized that
a State may have authority to tax or regulate tribal activities
occurring within the State but outside Indian country. See
Mescalero Apache Tribe v.
Jones, 411 U. S. 145, 148-149
(1973); see also
Organized Village of Kake v.
Egan,
369 U. S. 60, 75
(1962). To say substantive state laws apply to off-reservation
conduct, however, is not to say that a tribe no longer enjoys
immunity from suit. In
Potawatomi, for example, we
reaffirmed that while Oklahoma may tax cigarette sales by a Tribe's
store to nonmembers, the Tribe enjoys immunity from a suit to
collect unpaid state taxes. 498 U. S., at 510. There is a
difference between the right to demand compliance with state laws
and the means available to enforce them. See id., at 514.
The Oklahoma Court of Civil Appeals nonetheless believed federal
law did not mandate tribal immunity, resting its holding on the
decision in
Hoover v.
Oklahoma, 909 P. 2d 59 (Okla.
1995), cert. denied, 517 U. S. 1188 (1996). In
Hoover, the
Oklahoma Supreme Court held that tribal immunity for
off-reservation commercial activity, like the decision not to
exercise jurisdiction over a sister State, is solely a matter of
comity. 909 P. 2d, at 62 (citing
Nevada v.
Hall,
440 U. S. 410,
426 (1979)). According to
Hoover, because the State holds
itself open to breach of contract suits, it may allow its citizens
to sue other sovereigns acting within the State. We
756
have often noted, however, that the immunity possessed by Indian
tribes is not coextensive with that of the States. See,
e. g.,
Blatchford v.
Native Village of Noatak, 501 U. S. 775 (1991). In
Blatchford, we distinguished state sovereign immunity from
tribal sovereign immunity, as tribes were not at the Constitutional
Convention. They were thus not parties to the "mutuality of ...
concession" that "makes the States' surrender of immunity from suit
by sister States plausible."
Id., at 782; accord,
Idaho v.
Coeur d'Alene Tribe of Idaho, 521 U. S. 261, 268-269
(1997). So tribal immunity is a matter of federal law and is not
subject to diminution by the States.
Three Affiliated Tribes,
supra, at 891;
Washington v.
Confederated Tribes of
Colville Reservation, 447 U. S. 134, 154
(1980).
Though the doctrine of tribal immunity is settled law and
controls this case, we note that it developed almost by accident.
The doctrine is said by some of our own opinions to rest on the
Court's opinion in
Turner v.
United States, 248 U. S. 354 (1919).
See,
e. g., Potawatomi, supra, at 510. Though
Turner
is indeed cited as authority for the immunity, examination shows it
simply does not stand for that proposition. The case arose on lands
within the Creek Nation's "public domain" and subject to "the
powers of [the] sovereign people." 248 U. S., at 355. The Creek
Nation gave each individual Creek grazing rights to a portion of
the Creek N ation's public lands, and 100 Creeks in turn leased
their grazing rights to Turner, a non-Indian. He built a long fence
around the land, but a mob of Creek Indians tore the fence down.
Congress then passed a law allowing Turner to sue the Creek Nation
in the Court of Claims. The Court of Claims dismissed Turner's
suit, and the Court, in an opinion by Justice Brandeis, affirmed.
The Court stated: "The fundamental obstacle to recovery is not the
immunity of a sovereign to suit, but the lack of a substantive
right to recover the damages resulting from failure of a government
or its
757
officers to keep the peace."
Id., at 358. "No such
liability existed by the general law."
Id., at 357.
The quoted language is the heart of
Turner. It is, at
best, an assumption of immunity for the sake of argument, not a
reasoned statement of doctrine. One cannot even say the Court or
Congress assumed the congressional enactment was needed to overcome
tribal immunity. There was a very different reason why Congress had
to pass the Act: "The tribal government had been dissolved. Without
authorization from Congress, the Nation could not then have been
sued in any court; at least without its consent."
Id., at
358. The fact of tribal dissolution, not its sovereign status, was
the predicate for the legislation authorizing suit.
Turner,
then, is but a slender reed for supporting the principle of tribal
sovereign immunity.
Turner's passing reference to immunity, however, did
become an explicit holding that tribes had immunity from suit. We
so held in
USF&G, saying: "These Indian Nations are
exempt from suit without Congressional authorization." 309 U. S.,
at 512 (citing
Turner, supra, at 358). As sovereigns or
quasi sovereigns, the Indian Nations enjoyed immunity "from
judicial attack" absent consent to be sued. 309 U. S., at 513-514.
Later cases, albeit with little analysis, reiterated the doctrine.
E. g., Puyallup, 433 U. S., at 167,
172-173; Santa
Clara Pueblo, 436 U. S., at 58;
Three Affiliated Tribes, 476
U. S., at 890-891;
Blatchford, supra, at 782;
Coeur
d'Alene, supra, at 268.
The doctrine of tribal immunity came under attack a few years
ago in
Potawatomi, supra. The petitioner there asked us to
abandon or at least narrow the doctrine because tribal businesses
had become far removed from tribal selfgovernance and internal
affairs. We retained the doctrine, however, on the theory that
Congress had failed to abrogate it in order to promote economic
development and tribal selfsufficiency.
Id., at 510. The
rationale, it must be said, can be challenged as inapposite to
modern, wide-ranging tribal
758
enterprises extending well beyond traditional tribal customs and
activities. JUSTICE STEVENS, in a separate opinion, criticized
tribal immunity as "founded upon an anachronistic fiction" and
suggested it might not extend to off-reservation commercial
activity.
Id., at 514-515 (concurring opinion).
There are reasons to doubt the wisdom of perpetuating the
doctrine. At one time, the doctrine of tribal immunity from suit
might have been thought necessary to protect nascent tribal
governments from encroachments by States. In our interdependent and
mobile society, however, tribal immunity extends beyond what is
needed to safeguard tribal self-governance. This is evident when
tribes take part in the Nation's commerce. Tribal enterprises now
include ski resorts, gambling, and sales of cigarettes to
non-Indians. See
Mescalero Apache Tribe v.
Jones,
411 U. S. 145
(1973);
Potawatomi, supra; Seminole Tribe of Fla. v.
Florida, 517 U.
S. 44 (1996). In this economic context, immunity 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.
These considerations might suggest a need to abrogate tribal
immunity, at least as an overarching rule. Respondent does not ask
us to repudiate the principle outright, but suggests instead that
we confine it to reservations or to noncommercial activities. We
decline to draw this distinction in this case, as we defer to the
role Congress may wish to exercise in this important judgment.
Congress has acted against the background of our decisions. It
has restricted tribal immunity from suit in limited circumstances.
See,
e. g., 25 U. S. C. § 450f(c)(3) (mandatory liability
insurance); § 2710(d)(7)(A)(ii) (gaming activities). And in other
statutes it has declared an intention not to alter it. See,
e. g., § 450n (nothing in financial-assistance program is to
be construed as "affecting, modifying, diminishing, or otherwise
impairing the sovereign immunity from suit enjoyed by an Indian
tribe"); see also
Potawatomi, 498
759
u. S., at 510 (discussing Indian Financing Act of 1974, 88 Stat.
77, 25 U. S. C. § 1451
et seq.).
In considering Congress' role in reforming tribal immunity, we
find instructive the problems of sovereign immunity for foreign
countries. As with tribal immunity, foreign sovereign immunity
began as a judicial doctrine. Chief Justice Marshall held that
United States courts had no jurisdiction over an armed ship of a
foreign state, even while in an American port.
Schooner
Exchange v.
McFaddon, 7 Cranch 116 (1812). While the
holding was narrow, "that opinion came to be regarded as extending
virtually absolute immunity to foreign sovereigns."
Verlinden
B. v: v.
Central Bank of Nigeria, 461 U. S. 480, 486
(1983). In 1952, the State Department issued what came to be known
as the Tate Letter, announcing the policy of denying immunity for
the commercial acts of a foreign nation. See id., at 486-487.
Difficulties in implementing the principle led Congress in 1976 to
enact the Foreign Sovereign Immunities Act, resulting in more
predictable and precise rules. See id., at 488-489 (discussing the
Foreign Sovereign Immunities Act of 1976, 28 U. S. C. §§ 1604,
1605, 1607).
Like foreign sovereign immunity, tribal immunity is a matter of
federal law.
Verlinden, supra, at 486. Although the Court
has taken the lead in drawing the bounds of tribal immunity,
Congress, subject to constitutional limitations, can alter its
limits through explicit legislation. See,
e. g., Santa Clara
Pueblo, supra, at 58.
In both fields, Congress is in a position to weigh and
accommodate the competing policy concerns and reliance interests.
The capacity of the Legislative Branch to address the issue by
comprehensive legislation counsels some caution by us in this area.
Congress "has occasionally authorized limited classes of suits
against Indian tribes" and "has always been at liberty to dispense
with such tribal immunity or to limit it."
Potawatomi,
supra, at 510. It has not yet done so.
760
STEVENS, J., dissenting
In light of these concerns, we decline to revisit our case law
and choose to defer to Congress. Tribes enjoy immunity from suits
on contracts, whether those contracts involve governmental or
commercial activities and whether they were made on or off a
reservation. Congress has not abrogated this immunity, nor has
petitioner waived it, so the immunity governs this case. The
contrary decision of the Oklahoma Court of Civil Appeals is
Reversed.
JUSTICE STEVENS, with whom JUSTICE THOMAS and JUSTICE GINSBURG
join, dissenting.
"Absent express 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). There is no federal statute or treaty that provides
petitioner, the Kiowa Tribe of Oklahoma, any immunity from the
application of Oklahoma law to its off-reservation commercial
activities. Nor, in my opinion, should this Court extend the
judge-made doctrine of sovereign immunity to pre-empt the authority
of the state courts to decide for themselves whether to accord such
immunity to Indian tribes as a matter of comity.
I
"The doctrine of sovereign immunity is an amalgam of two quite
different concepts, one applicable to suits in the sovereign's own
courts and the other to suits in the courts of another sovereign."
Nevada v.
Hall, 440 U. S. 410, 414
(1979). In the former category, the sovereign'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.
Kawananakoa v.
Polyblank, 205
U. S. 349, 353 (1907). The sovereign's claim to immunity in the
courts of a second sovereign,
761
however, normally depends on the second sovereign's law.
Schooner Exchange v.
McFaddon, 7 Cranch 116, 136
(1812). An Indian tribe's assertion of immunity in a state judicial
proceeding is unique because it implicates the law of three
different sovereigns: the tribe itself, the State, and the Federal
Government.
As the Court correctly observes, the doctrine of tribal immunity
from judicial jurisdiction "developed almost by accident."
Ante, at 756. Its origin is attributed to two federal cases
involving three of the Five Civilized Tribes. The former case,
Turner v.
United States, 248 U. S. 354 (1919),
rejected a claim against the Creek Nation, whose tribal government
had been dissolved. The Court explains why that case provides no
more than "a slender reed" of support for the doctrine even in
federal court.
Ante, at 757. In the latter case,
United
States v.
United States Fidelity &
Guaranty
Co., 309 U. S.
506 (1940)
(USF&G), the Federal Government sought to
recover royalties due under coal leases that the United States had
executed on behalf of the Choctaw and Chickasaw Nations. The Court
held that the Government's action was not barred by a prior
judgment against it entered by a different federal court. The
holding that the prior judgment was "void in so far as it
undertakes to fix a credit against the Indian Nations," id., at
512, rested on two grounds. First, in a companion case decided that
day,l the Court ruled that "cross-claims against the United States
are justiciable only in those courts where Congress has consented
to their consideration,"
ibid.; but no statute had
authorized the prior adjudication of the cross-claim against the
Federal Government. The second ground was the statement, supported
by a citation of
Turner and two Eighth Circuit decisions
addressing the immunity of two of the Five Civilized Tribes, that
"[t]hese Indian Nations are exempt from suit without
Congressional authorization." 309 U. S.,
1
United States v.
Shaw, 309 U. S. 495 (1940).
762
STEVENS, J., dissenting
at 512 (emphasis added). At most, the holding extends only to
federal cases in which the United States is litigating on behalf of
a tribe. Moreover, both
Turner and
USF&G arose
out of conduct that occurred on Indian reservations.
In subsequent cases, we have made it clear that the States have
legislative jurisdiction over the off-reservation conduct of Indian
tribes, and even over some on-reservation activities.2 Thus, in
litigation that consumed more than a decade and included three
decisions by this Court, we rejected a Tribe's claim that the
doctrine of sovereign immunity precluded the State of Washington
from regulating fishing activities on the Puyallup Reservation.
Puyallup Tribe, Inc. v.
Department of Game of Wash.,
433 U. S. 165,
175-176 (1977). It is true that as an incident to that important
holding, we vacated the portions of the state-court decree that
were directed against the Tribe itself.
Id., at 172-173.
That action, however, had little practical effect because we upheld
the portions of the decree granting relief against the entire class
of Indians that was represented by the Tribe. Although Justice
Blackmun, one of the "strongest supporters of Indian rights on the
Court," 3 wrote separately to express his "doubts ... about the
continuing vitality in this day of the doctrine of tribal immunity
as it was enunciated in
United States v.
United States
Fidelity &
Guaranty Co.," id., at 178, our opinion
did not purport to extend or to explain the doctrine. Moreover, as
the Tribe's predominant argument was that "the state courts of
Washington are without
2 "The general notion drawn from Chief Justice Marshall's
opinion in
Worcester v.
Georgia, 6 Pet. 515, 561;
The Kansas Indians, 5 Wall. 737, 755-757; and
The New
York Indians, 5 Wall. 761, that an Indian reservation is a
distinct nation within whose boundaries state law cannot penetrate,
has yielded to closer analysis when confronted, in the course of
subsequent developments, with diverse concrete situations."
Organized Village of Kake v.
Egan, 369 U. S. 60, 72
(1962).
3 Dussias, Heeding the Demands of Justice: Justice Blackmun's
Indian Law Opinions, 71 N. D. L. Rev. 41, 43 (1995).
763
jurisdiction to regulate fishing activities on its reservation,"
id., at 167, we had no occasion to consider the validity of an
injunction relating solely to off-reservation fishing.
In several cases since
Puyallup, we have broadly referred
to the tribes' immunity from suit, but "with little analysis,"
ante, at 757, and only considering controversies arising on
reservation territory. In
Santa Clara Pueblo v.
Martinez, 436
U. S. 49 (1978), a Tribe member and her daughter who both lived
on the Santa Clara Pueblo reservation sued in federal court to
challenge the validity of a tribal membership law. We agreed with
the Tribe that the court lacked jurisdiction to decide this
"intratribal controvers[y] affecting matters of tribal
self-government and sovereignty."
Id., at 53. Our decision
in
Three Affiliated Tribes of Fort Berthold Reservation v.
Wold Engineering, P. c.,
476 U. S. 877 (1986),
held that North Dakota could not require a Tribe's blanket waiver
of sovereign immunity as a condition for permitting the Tribe to
sue private parties in state court. That condition was "unduly
intrusive on the Tribe's common law sovereign immunity, and thus on
its ability to govern itself according to its own laws," because it
required "that the Tribe open itself up to the coercive
jurisdiction of state courts for
all matters occurring on
the reservation."
Id., at 891.4 Most recently, we held that
a federal court lacked authority to entertain Oklahoma's claims for
unpaid taxes on cigarette sales made on tribal trust land, which is
treated the same as reservation territory.
Oklahoma Tax
Comm'n v.
Citizen Band of Potawatomi Tribe of Okla.,
498 U. S. 505,
509-511 (1991).5
4 The particular counterclaims asserted by the private party,
which we assumed would be barred by sovereign immunity, concerned
the construction of a water-supply system on the Tribe's
reservation.
Three Affiliated Tribes, 476 U. S., at 881.
5 The Court cites
Blatchford v.
Native Village of
Noatak, 501 U. S.
775 (1991), and
Idaho v.
Coeur d'Alene Tribe of
Idaho, 521 U. S.
261 (1997), as having "retained the doctrine" of tribal
sovereign immunity.
Ante, at 757. Each of those cases upheld
a State's sovereign immunity under
764
STEVENS, J., dissenting
In sum, we have treated the doctrine of sovereign immunity from
judicial jurisdiction as settled law, but in none of our cases have
we applied the doctrine to purely offreservation conduct. Despite
the broad language used in prior cases, it is quite wrong for the
Court to suggest that it is merely following precedent, for we have
simply never considered whether a tribe is immune from a suit that
has no meaningful nexus to the tribe's land or its sovereign
functions. Moreover, none of our opinions has attempted to set
forth any reasoned explanation for a distinction between the
States' power to regulate the off-reservation conduct of Indian
tribes and the States' power to adjudicate disputes arising out of
such off-reservation conduct. Accordingly, while I agree with the
Court that it is now too late to repudiate the doctrine entirely,
for the following reasons I would not extend the doctrine beyond
its present contours.
II
Three compelling reasons favor the exercise of judicial
restraint.
First, the law-making power that the Court has assumed belongs
in the first instance to Congress. The fact that Congress may
nullify or modify the Court's grant of virtually unlimited tribal
immunity does not justify the Court's performance of a legislative
function. The Court is not merely announcing a rule of comity for
federal judges to observe; it is announcing a rule that pre-empts
state power. The reasons that undergird our strong presumption
against construing federal statutes to pre-empt state law, see,
e. g., Cipollone v.
Liggett Group, Inc., 505 U. S. 504, 516, 518
(1992), apply with added force to judge-made rules.
In the absence of any congressional statute or treaty defining
the Indian tribes' sovereign immunity, the creation of
the Eleventh Amendment from being sued in federal court by an
Indian tribe. The passing references to tribes' immunity from suit
did not discuss the scope of that immunity and were, of course,
dicta.
765
a federal common-law "default" rule of immunity might in theory
be justified by federal interests. By setting such a rule, however,
the Court is not deferring to Congress or exercising "caution,"
ante, at 759-rather, it is creating law. The Court fails to
identify federal interests supporting its extension of sovereign
immunity-indeed, it all but concedes that the present doctrine
lacks such justification,
ante, at 758-and completely
ignores the State's interests. Its opinion is thus a far cry from
the "comprehensive pre-emption inquiry in the Indian law context"
described in
Three Affiliated Tribes that calls for the
examination of "not only the congressional plan, but also 'the
nature of the state, federal, and tribal interests at stake .... '"
476 U. S., at 884 (quoting
White Mountain Apache Tribe v.
Bracker, 448
U. S. 136, 145 (1980)). Stronger reasons are needed to fill the
gap left by Congress.
Second, the rule is strikingly anomalous. Why should an Indian
tribe enjoy broader immunity than the States, the Federal
Government, and foreign nations? As a matter of national policy,
the United States has waived its immunity from tort liability and
from liability arising out of its commercial activities. See 28 U.
S. C. §§ 1346(b), 2674 (Federal Tort Claims Act); §§ 1346(a)(2),
1491 (Tucker Act). Congress has also decided in the Foreign
Sovereign Immunities Act of 1976 that foreign states may be sued in
the federal and state courts for claims based upon commercial
activities carried on in the United States, or such activities
elsewhere that have a "direct effect in the United States." §
1605(a)(2). And a State may be sued in the courts of another State.
Nevada v.
Hall, 440 U. S. 410 (1979). The
fact that the States surrendered aspects of their sovereignty when
they joined the Union does not even arguably present a legitimate
basis for concluding that the Indian tribes retained-or, indeed,
ever had-any sovereign immunity for off-reservation commercial
conduct.
766
STEVENS, J., dissenting
Third, the rule is unjust. This is especially so with respect to
tort victims who have no opportunity to negotiate for a waiver of
sovereign immunity; yet nothing in the Court's reasoning limits the
rule to lawsuits arising out of voluntary contractual
relationships. Governments, like individuals, should pay their
debts and should be held accountable for their unlawful, injurious
conduct.
I respectfully dissent.
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