On May 27, 2014 the US Supreme Court handed down its decision in Michigan v. Bay Mills Indian Community. The decision was widely regarded as a victory for US Tribes. But as the analysis of the Supreme Court's recent decision in Bay Mills continues and what it means for the future of tribal sovereign immunity is parsed out, it is interesting to note the length the dissenters were willing to go to in their effort to overturn Supreme Court precedent—namely, the Kiowa Tribe v. Manufacturing Technologies decision from 1998—and eliminate tribal immunity in the commercial context. While Justice Clarence Thomas (joined by Justices Samuel Alito, Ruth Bader Ginsburg and Antonin Scalia) makes a number of cogent arguments against tribal sovereign immunity in the commercial context, at one point he seems to go so far as to suggest that Kiowa should never have been understood as good law even though it was a 6-3 decision at the time it was made.
Justice Thomas notes that one of the arguments in favor of upholding tribal sovereign immunity was that Kiowa has been settled law for sixteen years and that everyone—Native nations, States and non-Native businesses alike—has relied on that holding to structure all types of agreements and contracts. In order to counter this line of argument, Justice Thomas appears to argue that even while the ink on the Kiowa decision was still wet, it already wasn't good law. Thomas notes that at the time of the decision "the court had strong misgivings about [extending the scope of tribal immunity]" and that three Justices (a.k.a. the dissenters—Ginsburg, Scalia and Thomas) "would not have expanded immunity in the first place" while "the other six essentially expressed hope that Congress would overrule the court's decision."
While the court in Kiowa did state, "There are reasons to doubt perpetuating the doctrine," the court, by a 6-3 decision, did ultimately hold that tribal sovereign immunity extended into the commercial context. Despite this fact, Justice Thomas' seems to think the rest of the world should have seen the majority's holding not so much as law, but as a placeholder until someone (i.e. Congress) could change that holding. In fact, Justice Thomas goes so far as to state, "Against that backdrop, it would hardly be reasonable for a tribe to rely on Kiowa as a permanent grant of immunity for off-reservation commercial activities."
Even though it would appear that all actors—Native and non-Native alike—treated Kiowa as good law for sixteen years, Justice Thomas' insinuation is that those actions have all been unreasonable. Given such a line of argument, it is easy to wonder about the other cases we are all relying on, but that would "hardly be reasonable" to do so in Justice Thomas' world. According to SCOTUS Blog's Stat Pack, more than 34 percent of all Supreme Court decisions over the past five years have been by 6-3 or 5-4 decisions. While not all of those decisions involve a majority with "strong misgivings" about the subject matter in question, it is safe to say the reasoning and analysis underlying many of those decisions is neither uniform nor absolute, and yet we rely on them.
Perhaps ironically, it is Justice Thomas's own argument that no one should not rely upon as it contains no precedential value and is merely dicta in a dissenting opinion. But precedential value aside, it is striking that Thomas appears to be so strongly opposed to the Kiowa decision that he would willingly put forth a radical argument about Supreme Court precedent. That said, it is by no means the first time Justice Thomas has had radical thoughts about federal Indian law, nor is it likely to be the last.
Ryan Seelau is an attorney at RSH Legal and the co-founder of the Project for Indigenous Self-Determination. He has published on international Indigenous rights as well as Native American juvenile justice and tribal sovereign immunity.
Suggested citation: Ryan Seelau, Justice Thomas "Hardly Be(ing) Reasonable," JURIST-Hotline, June 26, 2014, http://jurist.org/hotline/2014/june/ryan-seelau-tribal-sovereign-immunity.php.
This article was prepared for publication by Jason Kellam, a Section Editor with JURIST's Commentary services. Please direct any questions or comments to him at email@example.com