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The Maddening and Dangerous Muddle of Federal Indian Law

Confusion abounded on a crucial point during oral argument in the U.S. Supreme Court case of Michigan v. Bay Mills Indian Community on December 2, 1013. The case arises from Michigan's effort to shut down a casino that was being operated (now closed) by Bay Mills on lands acquired by Bay Mills under a 1997 land settlement agreement. The federal appeals court blocked Michigan from suing Bay Mills, on the ground that the Indian Community has sovereign immunity.

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.

The Bay Mills Indian Community brief says, "tribal immunity has deep roots in this country's jurisprudence"; it "was first judicially recognized in the late nineteenth century, and its roots extend far deeper than even that." The brief adds, "uniform, unwavering acknowledgement of tribal sovereign immunity by all three branches of our government puts the issue beyond dispute."

But then Bay Mills hobbles its argument with the contradictions of federal Indian law. It says, "Congress 'remains free to alter' the rule of sovereign immunity to which this Court has long adhered." It elaborates the contradiction: "This Court has always recognized that Indian tribes have many of the characteristics of independent sovereigns. … Modern-day Indian tribes are 'self-governing political communities that were formed long before Europeans first settled in North America.' … Although they no longer possess 'the full attributes of sovereignty,' they still retain 'those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.'"

What purpose is served by Bay Mills (or any other Indian Nation) adopting the contradictions of federal Indian law? These contradictions have been present from the start, nearly 200 years ago, when the U.S. Supreme Court in Johnson v. McIntosh first promulgated them. Their purpose is to impose a special form of federal domination over Indian Nations that coincides with the effort of the federal government to maintain dominance over states.

The basic contradictions of federal Indian law have been reaffirmed and made more convoluted over the years. Federal Indian law starts with the premise that Indian Nations are politically independent, but contradicts that premise with the doctrine of Christian Discovery—i.e., that Indian governments are subordinate to the governments of Christian nations.

The brief for the United States in support of Bay Mills Indian Community also displays the contradiction. It begins, "The immunity afforded Indian tribes under federal law is a central attribute of the 'self-governing political communities that were formed long before Europeans first settled in North America.' … From the beginning of European settlement, Indian tribes were commonly recognized as separate 'states' or 'nations.'"

The U.S. refers to the "inherent sovereignty" of Indian Nations, but then says, "Primary jurisdiction over Indian country rests with the United States," and that "the Constitution…gives the federal government 'exclusive authority over relations with Indian tribes.'"

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The brief goes on to say, "The tribes … did not lose their inherent sovereignty, including their immunity from suit, when they were brought under the dominant sovereignty and protection of the United States. Because the sovereignty of Indian tribes is subject to the control of the United States, Congress is 'at liberty to dispense with tribal immunity or to limit it.'"

This is a good example of how the contradictions of federal Indian law hobble Indian Nations: What is the logic of going from "self-governing political communities, commonly recognized as separate states or nations" to " the dominant sovereignty and protection of the United States" and then further to say that "the sovereignty of Indian tribes is subject to the control of the United States, [and] Congress is 'at liberty to dispense with tribal immunity or to limit it.'"?

These startling statements are illogical from the perspective of originally free and independent nations. The only logic they have is the contorted logic of federal Indian law.

Michigan's brief acknowledges, "the scope of tribal immunity is a bit muddled." That is an understatement. Consider the following: In 1831, the Cherokee Nation sued the state of Georgia in the Supreme Court to protect Cherokee lands. The court denied the Cherokee suit on the ground that an Indian nation is not a "foreign nation" entitled to sue a state in the Supreme Court.

Despite the principle laid down in the Cherokee Nation case, when the Cour d'Alene Nation sued the state of Idaho in 1997, the Supreme Court threw the suit out of federal court, on the ground that "Indian tribes ... should be accorded the same status as foreign sovereigns, against whom States enjoy Eleventh Amendment immunity."

In other words, the Cherokee Nation was barred from suing because "an Indian nation is not a foreign nation," while the Cour d'Alene Nation was barred from suing because "an Indian nation is a foreign nation." Neither of these cases has been overruled. They are part and parcel of how, in the words of Vine Deloria, Jr., the Supreme Court "skips along spinning off inconsistencies like a new sun exploding comets as it tips its way out of the dawn of creation."

Federal Indian law is riddled with contradictions, all stemming from the original effort to impose Christian Discovery and dominance on the original free and independent Peoples of this continent. American Indian sovereignty, under U.S. law, becomes a form of "now you see it, now you don't"—a shell game that serves sometimes to protect Indians against the worst ravages of states, but always exposes them to the vagaries of federal politics.

The U.S. brief in support of Bay Mills says, "The Constitution vests the power to abrogate or diminish Indian tribes' sovereignty in the political Branches of the national government.'" This argument is intended to protect Bay Mills from Michigan, but it obviously leaves Bay Mills completely vulnerable to Congressional politics. As the saying goes, "with friends like these, you don't need enemies."

In fact, the Constitution does not vest power in any branch of government to "abrogate or diminish" Native sovereignty. That kind of thinking is derived from the politics of the judicial system, which is the source of the doctrine of Christian Discovery. It is that doctrine, not the Constitution, which purports to give the federal government the power to abrogate or diminish Indian sovereignty.

The U.S. Supreme Court is a dangerous place for Indians to be. It has affirmed and reaffirmed the anti-Indian doctrine of Christian Discovery in more than 1000 cases since 1823. It doesn't always do it openly. Sometimes it tries to hide behind a false version of the Constitution.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.