Rights Without Remedies
In Michigan v. Bay Mills Indian Community, 1 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 is reminiscent of Oklahoma Tax Commission v. Citizen Potawatomi Nation, 2 in which the Court held that Oklahoma could tax tribal smoke shops, but could not sue the tribe to force remittance of the tax revenue. The Bay Mills decision is thus the second time in recent decades where the Court has provided a state with a right under federal Indian law while rendering that right unenforceable against an Indian tribe by way of tribal sovereign immunity (i.e., granting a right without a remedy).
Bay Mills directly focuses issues of tribal sovereign immunity on Congress by reaffirming something known as the “clear statement rule.” The rule’s reaffirmation 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 article parses out how tribal interests (Indian tribes and tribal entities) can utilize the clear statement rule for maximum effect, and how reliance upon the rule could generate signals to Congress. In short, the clear statement rule requires Congress to make clear, plain, and express any intent to restrict tribal authority.3 While the rule recognizes Congress’s plenary authority to regulate tribal governance authority, it also maintains a general trust toward Indian nations and Indian people. The Supreme Court relies most heavily on the clear statement rule when Congress creates a legislative scheme to govern a particular area of tribal governance, such as the Indian Civil Rights Act4 and the Indian Gaming Regulatory Act.5 I address this area in Part I.
The clear statement rule as applied in Bay Mills appears to contravene Supreme Court dicta, namely, that federal statutes of general applicability which are silent as to Indian nations and Indian people still apply to them.6 By definition, laws that are silent do not include a clear statement of intent by Congress to restrict tribal governance authority. This lack of clear congressional intent fuels disputes between Indian nations and federal agencies over federal employment laws that are silent as to their applicability to Indian nations. However, if the Court rejects the various common law artifices used by the lower courts in order to avoid the clear statement rule, there may be hope that the rule will ultimately prevail. I address these cases in Part II, focusing on labor relations matters currently pending.
