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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–515
_________________
MICHIGAN, PETITIONER v. BAY MILLS
INDIANCOMMUNITY et al.
on writ of certiorari to the united states
court of appeals for the sixth circuit
[May 27, 2014]
Justice Kagan
delivered the opinion of the Court.
The question in this
case is whether tribal sovereign immunity bars Michigan’s
suit against the Bay Mills Indian Community for opening a casino
outside Indian lands. We hold that immunity protects Bay Mills from
this legal action. Congress has not abrogated tribal sovereign
immunity from a State’s suit to enjoin gaming off a
reservation or other Indian lands. And we decline to revisit our
prior decisions holding that, absent such an abrogation (or a
waiver), Indian tribes have immunity even when a suit arises from
off-reservation commercial activity. Michigan must therefore resort
to other mechanisms, including legal actions against the
responsible individuals, to resolve this dispute.
I
The Indian Gaming
Regulatory Act (IGRA or Act), 102Stat. 2467, 25 U. S. C.
§2701 et seq., creates a framework for regulating gaming
activity on Indian lands.[
1]
See §2702(3) (describing the statute’s purpose as
establishing “regulatory authority . . . [and]
standards for gaming on Indian lands”). The Act divides
gaming into three classes. Class III gaming, the most closely
regulated and the kind involved here, includes casino games, slot
machines, and horse racing. See §2703(8). A tribe may conduct
such gaming on Indian lands only pursuant to, and in compliance
with, a compact it has negotiated with the sur-rounding State. See
§2710(d)(1)(C). A compact typically prescribes rules for
operating gaming, allocates law enforcement authority between the
tribe and State, and provides remedies for breach of the
agreement’s terms. See §§2710(d)(3)(C)(ii), (v).
Notable here, IGRA itself authorizes a State to bring suit against
a tribe for certain conduct violating a compact: Specifically,
§2710(d)(7)(A)(ii) allows a State to sue in federal court to
“enjoin a class III gaming activity located on Indian lands
and conducted in violation of any Tribal-State compact
. . . that is in effect.”
Pursuant to the Act,
Michigan and Bay Mills, a federally recognized Indian Tribe,
entered into a compact in 1993. See App. to Pet. for Cert.
73a–96a. The compact empowers Bay Mills to conduct class III
gaming on “Indian lands”; conversely, it prohibits the
Tribe from doing so outside that territory. Id., at 78a, 83a; see
n. 1, supra. The compact also contains a dispute resolution
mechanism, which sends to arbitration any contractual differences
the parties cannot settle on their own. See App. to Pet. for Cert.
89a–90a. A provision within that arbitration section states
that “[n]othing in this Compact shall be deemed a
waiver” of either the Tribe’s or the State’s
sovereign immunity. Id., at 90a. Since entering into the com-pact,
Bay Mills has operated class III gaming, as authorized, on its
reservation in Michigan’s Upper Peninsula.
In 2010, Bay Mills
opened another class III gaming facility in Vanderbilt, a small
village in Michigan’s Lower Peninsula about 125 miles from
the Tribe’s reservation. Bay Mills had bought the Vanderbilt
property with accrued interest from a federal appropriation, which
Congress had made to compensate the Tribe for 19th-century takings
of its ancestral lands. See Michigan Indian Land Claims Settlement
Act, 111Stat. 2652. Congress had directed that a portion of the
appropriated funds go into a “Land Trust” whose
earnings the Tribe was to use to improve or purchase property.
According to the legislation, any land so acquired “shall be
held as Indian lands are held.” §107(a)(3), id., at
2658. Citing that provision, Bay Mills contended that the
Vanderbilt property was “Indian land” under IGRA and
the compact; and the Tribe thus claimed authority to operate a
casino there.
Michigan disagreed: The
State sued Bay Mills in federal court to enjoin operation of the
new casino, alleging that the facility violated IGRA and the
compact because it was located outside Indian lands. The same day
Michigan filed suit, the federal Department of the Interior issued
an opinion concluding (as the State’s complaint said) that
the Tribe’s use of Land Trust earnings to purchase the
Vanderbilt property did not convert it into Indian territory. See
App. 69–101. The District Court entered a preliminary
injunction against Bay Mills, which promptly shut down the new
casino and took an interlocutory appeal. While that appeal was
pending, Michigan amended its complaint to join various tribal
officials as defendants, as well as to add state law and federal
common law claims. The Court of Appeals for the Sixth Circuit then
vacated the injunction, holding (among other things) that tribal
sovereign immunity barred Michigan’s suit against Bay Mills
unless Congress provided otherwise, and that
§2710(d)(7)(A)(ii) did not authorize the action. See 695
F. 3d 406, 413–415 (2012). That provision of IGRA, the
Sixth Circuit reasoned, permitted a suit against the Tribe to
enjoin only gaming activity located on Indian lands, whereas the
State’s complaint alleged that the Vanderbilt casino was
outside such territory. See id., at 412.[
2] Accordingly, the Court of Appeals concluded that
Michigan could proceed, if at all, solely against the individual
defendants, and it remanded to the District Court to consider those
claims. See id., at 416–417.[
3] Although no injunc-tion is currently in effect, Bay
Mills has not reopened the Vanderbilt casino.
We granted certiorari
to consider whether tribal sovereign immunity bars Michigan’s
suit against Bay Mills, 570 U. S. __ (2013), and we now affirm
the Court of Appeals’ judgment.
II
Indian tribes are
“ ‘domestic dependent nations’ ”
that exercise “inherent sovereign authority.” Oklahoma
Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498
U. S. 505, 509 (1991) (Potawatomi) (quoting Cherokee Nation v.
Georgia, 5 Pet. 1, 17 (1831)). As dependents, the tribes are
subject to plenary control by Congress. See United States v. Lara,
541 U. S. 193, 200 (2004) (“[T]he Constitution grants
Congress” powers “we have consistently described as
‘plenary and exclusive’ ” to
“legislate in respect to Indian tribes”). And yet they
remain “separate sovereigns pre-existing the
Constitution.” Santa Clara Pueblo v. Martinez, 436 U. S.
49, 56 (1978) . Thus, unless and “until Congress acts, the
tribes retain” their historic sovereign authority. United
States v. Wheeler, 435 U. S. 313, 323 (1978) .
Among the core aspects
of sovereignty that tribes possess—subject, again, to
congressional action—is the “common-law immunity from
suit traditionally enjoyed by sovereign powers.” Santa Clara
Pueblo, 436 U. S., at 58. That immunity, we have explained, is
“a necessary corollary to Indian sovereignty and
self-governance.” Three Affiliated Tribes of Fort Berthold
Reservation v. Wold Engineering, P. C., 476 U. S. 877, 890
(1986) ; cf. The Federalist No. 81, p. 511 (B. Wright ed. 1961) (A.
Hamilton) (It is “inherent in the nature of sovereignty not
to be amenable” to suit without consent). And the qualified
nature of Indian sovereignty modifies that principle only by
placing a tribe’s immunity, like its other governmental
powers and attributes, in Congress’s hands. See United States
v. United States Fidelity & Guaranty Co., 309 U. S. 506,
512 (1940) (USF&G) (“It is as though the immunity which
was theirs as sovereigns passed to the United States for their
benefit”). Thus, we have time and again treated the
“doctrine of tribal immunity [as] settled law” and
dismissed any suit against a tribe absent congressional
authorization (or a waiver). Kiowa Tribe of Okla. v. Manufacturing
Technologies, Inc., 523 U. S. 751, 756 (1998) .
In doing so, we have
held that tribal immunity applies no less to suits brought by
States (including in their own courts) than to those by
individuals. First in Puyallup Tribe, Inc. v. Department of Game of
Wash., 433 U. S. 165 –168, 172–173 (1977), and
then again in Potawatomi, 498 U. S., at 509–510, we
barred a State seeking to enforce its laws from filing suit against
a tribe, rejecting arguments grounded in the State’s own
sovereignty. In each case, we said a State must resort to other
remedies, even if they would be less “efficient.” Id.,
at 514; see Kiowa, 523 U. S., at 755 (“There is a
difference between the right to demand compliance with state laws
and the means available to enforce them”). That is because,
as we have often stated (and contrary to the dissent’s novel
pronouncement, see post, at 3 (opinion of Thomas, J.) (hereinafter
the dissent)), tribal immunity “is a matter of federal law
and is not subject to diminution by the States.” 523
U. S., at 756 (citing Three Affiliated Tribes, 476 U. S.,
at 891; Washington v. Confederated Tribes of Colville Reservation,
447 U. S. 134, 154 (1980) ). Or as we elsewhere explained:
While each State at the Constitutional Convention surrendered its
immunity from suit by sister States, “it would be absurd to
suggest that the tribes”—at a conference “to
which they were not even parties”—similarly ceded their
immunity against state-initiated suits. Blatchford v. Native
Village of Noatak, 501 U. S. 775, 782 (1991) .
Equally important here,
we declined in Kiowa to make any exception for suits arising from a
tribe’s commercial activities, even when they take place off
Indian lands. In that case, a private party sued a tribe in state
court for defaulting on a promissory note. The plaintiff asked this
Court to confine tribal immunity to suits involving conduct on
“reservations or to noncommercial activities.” 523
U. S., at 758. We said no. We listed Puyallup, Potawa-tomi,
and USF&G as precedents applying immunity to a suit predicated
on a tribe’s commercial conduct—respectively, fishing,
selling cigarettes, and leasing coal mines. 523 U. S., at
754–755. Too, we noted that Puyallup involved enterprise
“both on and off [the Tribe’s] reservation.” 523
U. S., at 754 (quoting 433 U. S., at 167). “[O]ur
precedents,” we thus concluded, have not previously
“drawn the[ ] distinctions” the plaintiff pressed in
the case. 523 U. S., at 755. They had established a broad
principle, from which we thought it improper suddenly to start
carving out exceptions. Rather, we opted to “defer” to
Congress about whether to abrogate tribal immunity for
off-reservation commercial conduct. Id., at 758, 760; see infra, at
17–18.
Our decisions establish
as well that such a congressional decision must be clear. The
baseline position, we have often held, is tribal immunity; and
“[t]o abrogate [such] immunity, Congress must
‘unequivocally’ express that purpose.”
C & L Enterprises, Inc. v. Citizen Band Potawatomi
Tribe of Okla., 532 U. S. 411, 418 (2001) (quoting Santa Clara
Pueblo, 436 U. S., at 58). That rule of construction reflects
an enduring principle of Indian law: Although Congress has plenary
authority over tribes, courts will not lightly assume that Congress
in fact intends to undermine Indian self-government. See, e.g.,
id., at 58–60; Iowa Mut. Ins. Co. v. LaPlante, 480 U. S.
9, 18 (1987) ; United States v. Dion, 476 U. S. 734 –739
(1986).
The upshot is this:
Unless Congress has authorized Michigan’s suit, our
precedents demand that it be dismissed.[
4] And so Michigan, naturally enough, makes two arguments:
first, that IGRA indeed abrogates the Tribe’s immunity from
the State’s suit; and second, that if it does not, we should
revisit—and reverse—our decision in Kiowa, so that
tribal immunity no longer applies to claims arising from commercial
activity outside Indian lands. We consider—and
reject—each contention in turn.
III
IGRA partially
abrogates tribal sovereign immunity in
§2710(d)(7)(A)(ii)—but this case, viewed most naturally,
falls outside that term’s ambit. The provision, as noted
above, authorizes a State to sue a tribe to “enjoin a class
III gaming activity located on Indian lands and conducted in
violation of any Tribal-State compact.” See supra, at 2;
Kiowa, 523 U. S., at 758 (citing the provision as an example
of legislation “restrict[ing] tribal immunity from suit in
limited circumstances”). A key phrase in that abrogation is
“on Indian lands”—three words reflecting
IGRA’s overall scope (and repeated some two dozen times in
the statute). A State’s suit to enjoin gaming activity on
Indian lands (assuming other requirements are met, see n. 6,
infra) falls within §2710(d)(7)(A)(ii); a similar suit to stop
gaming activity off Indian lands does not. And that creates a
fundamental problem for Michigan. After all, the very premise of
this suit—the reason Michigan thinks Bay Mills is acting
unlawfully—is that the Vanderbilt casino is outside Indian
lands. See App. to Pet. for Cert. 59a–60a. By dint of that
theory, a suit to enjoin gaming in Vanderbilt is correspondingly
outside §2710(d)(7)(A)(ii)’s abrogation of immunity.
Michigan first attempts
to fit this suit within §2710(d)(7)(A)(ii) by relocating the
“class III gaming activity” to which it is objecting.
True enough, Michigan states, the Vanderbilt casino lies outside
Indian lands. But Bay Mills “authorized, licensed, and
operated” that casino from within its own reservation. Brief
for Michigan 20. According to the State, that necessary
administrative action—no less than, say, dealing
craps—is “class III gaming activ-ity,” and
because it occurred on Indian land, this suit to enjoin it can go
forward.
But that argument comes
up snake eyes, because numerous provisions of IGRA show that
“class III gaming activity” means just what it sounds
like—the stuff involved in playing class III games. For
example, §2710(d)(3)(C)(i) refers to “the licensing and
regulation of [a class III gaming] activity” and
§2710(d)(9) concerns the “operation of a class III
gaming activity.” Those phrases make perfect sense if
“class III gaming activity” is what goes on in a
casino—each roll of the dice and spin of the wheel. But they
lose all meaning if, as Michigan argues, “class III gaming
activity” refers equally to the off-site licensing or
operation of the games. (Just plug in those words and see what
happens.) See also §§2710(b)(2)(A), (b)(4)(A), (c)(4),
(d)(1)(A) (similarly referring to class II or III “gaming
activity”). The same holds true throughout the statute.
Section 2717(a)(1) specifies fees to be paid by “each gaming
operation that conducts a class II or class III gaming
activity”—signifying that the gaming activity is the
gambling in the poker hall, not the proceedings of the off-site
administrative authority. And §§2706(a)(5) and 2713(b)(1)
together describe a federal agency’s power to “clos[e]
a gaming activity” for “substantial violation[s]”
of law—e.g., to shut down crooked blackjack tables, not the
tribal regulatory body meant to oversee them. Indeed, consider
IGRA’s very first finding: Many tribes, Congress stated,
“have licensed gaming activities on Indian lands,”
thereby necessitating federal regulation. §2701(1). The
“gaming activit[y]” is (once again) the gambling. And
that means §2710(d)(7)(A)(ii) does not allow Michigan’s
suit even if Bay Mills took action on its reservation to license or
oversee the Vanderbilt facility.
Stymied under
§2710(d)(7)(A)(ii), Michigan next urges us to adopt a
“holistic method” of interpreting IGRA that would allow
a State to sue a tribe for illegal gaming off, no less than on,
Indian lands. Brief for Michigan 30. Michi-gan asks here that we
consider “IGRA’s text and structure as a whole.”
Id., at 28. But (with one briefly raised exception) Michigan fails
to identify any specific textual or structural features of the
statute to support its proposed result.[
5] Rather, Michigan highlights a (purported) anomaly of
the statute as written: that it enables a State to sue a tribe for
illegal gaming inside, but not outside, Indian country.
“[W]hy,” Michigan queries, “would Congress
authorize a state to obtain a federal injunction against illegal
tribal gaming on Indian lands, but not on lands subject to the
state’s own sovereign jurisdiction?” Reply Brief 1.
That question has no answer, Michigan argues: Whatever words
Congress may have used in IGRA, it could not have intended that
senseless outcome. See Brief for Michigan 28.
But this Court does not
revise legislation, as Michigan proposes, just because the text as
written creates an apparent anomaly as to some subject it does not
address. Truth be told, such anomalies often arise from statutes,
if for no other reason than that Congress typically legislates by
parts—addressing one thing without examining all others that
might merit comparable treatment. Rejecting a similar argument that
a statutory anomaly (between property and non-property taxes) made
“not a whit of sense,” we explained in one recent case
that “Congress wrote the statute it
wrote”—meaning, a statute going so far and no further.
See CSX Transp., Inc. v. Alabama Dept. of Revenue, 562 U. S.
___, ___ (2011) (slip op., at 17–18). The same could be said
of IGRA’s abrogation of tribal immunity for gaming “on
Indian lands.” This Court has no roving license, in even
ordinary cases of statutory interpretation, to disregard clear
language simply on the view that (in Michigan’s words)
Congress “must have intended” something broader. Brief
for Michigan 32. And still less do we have that warrant when the
consequence would be to expand an abrogation of immunity, because
(as explained earlier) “Congress must
‘unequivocally’ express [its] purpose” to subject
a tribe to litigation. C & L Enterprises, 532
U. S., at 418; see supra, at 7.
In any event,
IGRA’s history and design provide a more than intelligible
answer to the question Michigan poses about why Congress would have
confined a State’s authority to sue a tribe as
§2710(d)(7)(A)(ii) does. Congress adopted IGRA in response to
this Court’s decision in California v. Cabazon Band of
Mission Indians, 480 U. S. 202 –222 (1987), which held
that States lacked any regulatory authority over gaming on Indian
lands. Cabazon left fully intact a State’s regulatory power
over tribal gaming outside Indian territory—which, as we will
soon show, is capacious. See infra, at 12–13. So the problem
Congress set out to address in IGRA (Cabazon’s ouster of
state authority) arose in Indian lands alone. And the solution
Congress devised, naturally enough, reflected that fact. See, e.g.,
Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 58 (1996)
(“[T]he Act grants the States a power that they would not
otherwise have, viz., some measure of author-ity over gaming on
Indian lands”). Everything—literally
everything—in IGRA affords tools (for either state or federal
officials) to regulate gaming on Indian lands, and nowhere else.
Small surprise that IGRA’s abrogation of tribal immunity does
that as well.[
6]
And the resulting
world, when considered functionally, is not nearly so
“enigma[tic]” as Michigan suggests. Reply Brief 1. True
enough, a State lacks the ability to sue a tribe for illegal gaming
when that activity occurs off the reservation. But a State, on its
own lands, has many other powers over tribal gaming that it does
not possess (absent consent) in Indian territory. Unless federal
law provides differently, “Indians going beyond reservation
boundaries” are subject to any generally applicable state
law. See Wagnon v. Prairie Band Potawatomi Nation, 546 U. S.
95, 113 (2005) (quoting Mescalero Apache Tribe v. Jones, 411
U. S. 145, 148 (1973) ). So, for example, Michigan could, in
the first instance, deny a license to Bay Mills for an
off-reservation casino. See Mich. Comp. Laws Ann.
§§432.206–432.206a (West 2001). And if Bay Mills
went ahead anyway, Michigan could bring suit against tribal
officials or employees (rather than the Tribe itself ) seeking
an injunction for, say, gambling without a license. See
§432.220; see also §600.3801(1)(a) (West 2013)
(designating illegal gambling facilities as public nuisances). As
this Court has stated before, analogizing to Ex parte Young, 209
U. S. 123 (1908) , tribal immunity does not bar such a suit
for injunctive relief against individuals, includ-ing tribal
officers, responsible for unlawful conduct. See Santa Clara Pueblo,
436 U. S., at 59. And to the extent civil remedies proved
inadequate, Michigan could resort to its criminal law, prosecuting
anyone who maintains—or even frequents—an unlawful
gambling establishment. See Mich. Comp. Laws Ann.
§§432.218 (West 2001), 750.303, 750.309 (West 2004). In
short (and contrary to the dissent’s unsupported assertion,
see post, at 11), the panoply of tools Michigan can use to enforce
its law on its own lands—no less than the suit it could bring
on Indian lands under §2710(d)(7)(A)(ii)—can shutter,
quickly and permanently, an illegal casino.[
7]
Finally, if a State
really wants to sue a tribe for gaming outside Indian lands, the
State need only bargain for a waiver of immunity. Under IGRA, a
State and tribe negotiating a compact “may include
. . . remedies for breach of contract,” 25
U. S. C. §2710(d)(3)(C)(v)—including a
provision allowing the State to bring an action against the tribe
in the circumstances presented here. States have more than enough
leverage to obtain such terms because a tribe cannot conduct class
III gaming on its lands without a compact, see §2710(d)(1)(C),
and cannot sue to enforce a State’s duty to negotiate a
compact in good faith, see Seminole Tribe, 517 U. S., at 47
(holding a State immune from such suits). So as Michigan
forthrightly acknowl-edges, “a party dealing with a tribe in
contract negotiations has the power to protect itself by refusing
to deal absent the tribe’s waiver of sovereign immunity from
suit.” Brief for Michigan 40. And many States have taken that
path. See Brief for Seminole Tribe of Florida et al. as Amici
Curiae 12–22 (listing compacts with waivers of tribal
immunity). To be sure, Michigan did not: As noted earlier, the
compact at issue here, instead of authorizing judicial remedies,
sends disputes to arbitration and expressly retains each
party’s sovereign immunity. See supra, at 2. But
Michigan—like any State—could have insisted on a
different deal (and indeed may do so now for the future, because
the current compact has expired and remains in effect only until
the parties negotiate a new one, see Tr. of Oral Arg. 21). And in
that event, the limitation Congress placed on IGRA’s
abrogation of tribal immunity—whether or not anomalous as an
abstract matter—would have made no earthly difference.
IV
Because IGRA’s
plain terms do not abrogate Bay Mills’ immunity from this
suit, Michigan (and the dissent) must make a more dramatic
argument: that this Court should “revisit[ ] Kiowa’s
holding” and rule that tribes “have no immunity for
illegal commercial activity outside their sovereign
territory.” Reply Brief 8, 10; see post, at 1. Michigan
argues that tribes increasingly participate in off-reservation
gaming and other commercial activity, and operate in that capacity
less as governments than as private businesses. See Brief for
Michigan 38 (noting, among other things, that “tribal gaming
revenues have more than tripled” since Kiowa). Further,
Michigan contends, tribes have broader immunity from suits arising
from such conduct than other sovereigns—most notably, because
Congress enacted legislation limiting foreign nations’
immunity for commercial activity in the United States. See id., at
41; 28 U. S. C. §1605(a)(2). It is time, Michigan
concludes, to “level[ ] the playing field.” Brief for
Michigan 38.
But this Court does not
overturn its precedents lightly. Stare decisis, we have stated,
“is the preferred course because it promotes the evenhanded,
predictable, and consistent development of legal principles,
fosters reliance on judicial decisions, and contributes to the
actual and perceived integrity of the judicial process.”
Payne v. Tennessee, 501 U. S. 808, 827 (1991) . Although
“not an inexorable command,” id., at 828, stare decisis
is a foundation stone of the rule of law, necessary to ensure that
legal rules develop “in a principled and intelligible
fashion,” Vasquez v. Hillery, 474 U. S. 254, 265 (1986)
. For that reason, this Court has always held that “any
departure” from the doctrine “demands special
justification.” Arizona v. Rumsey, 467 U. S. 203, 212
(1984) .
And that is more than
usually so in the circumstances here. First, Kiowa itself was no
one-off: Rather, in rejecting the identical argument Michigan
makes, our decision reaffirmed a long line of precedents,
concluding that “the doctrine of tribal
immunity”—without any exceptions for commercial or
off-reservation conduct—“is settled law and controls
this case.” 523 U. S., at 756; see id., at
754–755; supra, at 5–7. Second, we have relied on Kiowa
subsequently: In another case involving a tribe’s
off-reservation commercial conduct, we began our analysis with
Kiowa’s holding that tribal immunity applies to such activity
(and then found that the Tribe had waived its protection). See
C & L Enterprises, 532 U. S., at 418. Third,
tribes across the country, as well as entities and individuals
doing business with them, have for many years relied on Kiowa
(along with its forebears and progeny), negotiating their contracts
and structuring their transactions against a backdrop of tribal
immunity. As in other cases involving contract and property rights,
concerns of stare decisis are thus “at their acme.”
State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) . And fourth (a
point we will later revisit, see infra, at 17–20), Congress
exercises primary authority in this area and “remains free to
alter what we have done”—another factor that gives
“special force” to stare decisis. Patterson v. McLean
Credit Union, 491 U. S. 164 –173 (1989). To overcome all
these reasons for this Court to stand pat, Michigan would need an
ace up its sleeve.[
8]
But instead, all the
State musters are retreads of assertions we have rejected before.
Kiowa expressly considered the view, now offered by Michigan, that
“when tribes take part in the Nation’s commerce,”
immunity “extends beyond what is needed to safeguard tribal
self-governance.” 523 U. S., at 758. (Indeed, as Kiowa
noted, see id., at 757, Potawatomi had less than a decade earlier
rejected Oklahoma’s identical contention that “because
tribal business activities . . . are now so detached from
traditional tribal interests,” immunity “no longer
makes sense in [the commercial] context,” 498 U. S., at
510.) So too, the Kiowa Court comprehended the trajectory of
tribes’ commercial activity (which is the dissent’s
exclusive rationale for ignoring stare decisis, see post, at
10–13). In the preceding decade, tribal gaming revenues had
increased more than thirty fold[
9] (dwarfing the still strong rate of growth since that
time, see supra, at 14–15); and Kiowa noted the flourishing
of other tribal enterprises, ranging from cigarette sales to ski
resorts, see 523 U. S., at 758. Moreover, the Kiowa Court
understood that other sovereigns did not enjoy similar immunity for
commercial activities outside their territory; that seeming
“anomal[y]” was a principal point in the dissenting
opinion. See id., at 765 (Stevens, J., dissenting). Kiowa did more,
in fact, than acknowledge those arguments; it expressed a fair bit
of sympathy toward them. See id., at 758 (noting “reasons to
doubt the wisdom of perpetuating the doctrine” as to
off-reservation commercial conduct). Yet the decision could not
have been any clearer: “We decline to draw [any]
distinction” that would “confine [immunity] to
reservations or to noncommercial activities.” Ibid.
We ruled that way for a
single, simple reason: because it is fundamentally Congress’s
job, not ours, to determine whether or how to limit tribal
immunity. The special brand of sovereignty the tribes
retain—both its nature and its extent—rests in the
hands of Congress. See Lara, 541 U. S., at 200; Wheeler, 435
U. S., at 323. Kiowa chose to respect that congressional
responsibility (as Potawatomi had a decade earlier) when it
rejected the precursor to Michigan’s argument: Whatever our
view of the merits, we explained, “we defer to the role
Congress may wish to exercise in this important judgment.”
523 U. S., at 758; see Potawatomi, 498 U. S., at 510
(stating that because “Congress has always been at liberty to
dispense with” or limit tribal immunity, “we are not
disposed to modify” its scope). Congress, we
said—drawing an analogy to its role in shaping foreign
sovereign immunity[
10]—has the greater capacity “to weigh and
accommodate the competing policy concerns and reliance
interests” involved in the issue. 523 U. S., at 759. And
Congress repeatedly had done just that: It had restricted tribal
immunity “in limited circum-stances” (including, we
noted, in §2710(d)(7)(A)(ii)), while “in other
statutes” declaring an “intention not to alter”
the doctrine. Id., at 758; see Potawatomi, 498 U. S., at 510
(citing statutory provisions involving tribal immunity). So too, we
thought, Congress should make the call whether to curtail a
tribe’s immunity for off-reservation commer-cial
conduct—and the Court should accept Congress’s
judgment.
All that we said in
Kiowa applies today, with yet one more thing: Congress has now
reflected on Kiowa and made an initial (though of course not
irrevocable) decision to retain that form of tribal immunity.
Following Kiowa, Congress considered several bills to substantially
modify tribal immunity in the commercial context. Two in
particular—drafted by the chair of the Senate Appropriations
Subcommittee on the Interior—expressly referred to Kiowa and
broadly abrogated tribal immunity for most torts and breaches of
contract. See S. 2299, 105th Cong., 2d Sess. (1998); S. 2302, 105th
Cong., 2d Sess. (1998). But instead of adopting those reversals of
Kiowa, Congress chose to enact a far more modest alternative
requiring tribes either to disclose or to waive their immunity in
contracts needing the Secretary of the Interior’s approval.
See Indian Tribal Economic Development and Contract Encouragement
Act of 2000, §2, 114Stat. 46 (codified at 25
U. S. C. §81(d)(2)); see also F. Cohen, Handbook of
Federal Indian Law §7.05[1][b], p. 643 (2012). Since then,
Congress has continued to exercise its plenary authority over
tribal immunity, specifically preserving immunity in some contexts
and abrogating it in others, but never adopting the change Michigan
wants.[
11] So rather than
confronting, as we did in Kiowa, a legislative vacuum as to the
precise issue presented, we act today against the backdrop of a
congressional choice: to retain tribal immunity (at least for now)
in a case like this one.[
12]
Reversing Kiowa in
these circumstances would scale the heights of presumption: Beyond
upending “long-established principle[s] of tribal sovereign
immunity,” that action would replace Congress’s
considered judgment with our contrary opinion. Potawatomi, 498
U. S., at 510. As Kiowa recognized, a fundamental commitment
of Indian law is judicial respect for Congress’s primary role
in defining the contours of tribal sovereignty. See 523 U. S.,
at 758–760; see also Santa Clara Pueblo, 436 U. S., at
60 (“[A] proper respect . . . for the plenary
authority of Congress in this area cautions that [the courts] tread
lightly”); Cohen, supra, §2.01[1], at 110
(“Judicial deference to the paramount authority of Congress
in matters concerning Indian policy remains a central and
indispensable principle of the field of Indian law”). That
commitment gains only added force when Congress has already
reflected on an issue of tribal sovereignty, including immunity
from suit, and declined to change settled law. And that force must
grow greater still when Congress considered that issue partly at
our urging. See Kiowa, 523 U. S., at 758 (hinting, none too
subtly, that “Congress may wish to exercise” its
authority over the question presented). Having held in Kiowa that
this issue is up to Congress, we cannot reverse ourselves because
some may think its conclusion wrong. Congress of course may always
change its mind—and we would readily defer to that new
decision. But it is for Congress, now more than ever, to say
whether to create an exception to tribal immunity for
off-reservation commercial activity. As in Kiowa—except still
more so—“we decline to revisit our case law[,] and
choose” instead “to defer to Congress.” Id., at
760.
V
As “domestic
dependent nations,” Indian tribes exercise sovereignty
subject to the will of the Federal Government. Cherokee Nation, 5
Pet., at 17. Sovereignty implies immunity from lawsuits. Subjection
means (among much else) that Congress can abrogate that immunity as
and to the extent it wishes. If Congress had authorized this suit,
Bay Mills would have no valid grounds to object. But Congress has
not done so: The abrogation of immunity in IGRA applies to gaming
on, but not off, Indian lands. We will not rewrite Congress’s
handiwork. Nor will we create a freestanding exception to tribal
immunity for all off-reservation commercial conduct. This Court has
declined that course once before. To choose it now would entail
both overthrowing our precedent and usurping Congress’s
current policy judgment. Accordingly, Michigan may not sue Bay
Mills to enjoin the Vanderbilt casino, but must instead use
available alternative means to accomplish that object.
We affirm the Sixth
Circuit’s judgment and remand the case for further
proceedings consistent with this opinion.
It is so ordered.