# Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin/Opinion of Justice Thomas

SUPREME COURT OF THE UNITED STATES
No. 22–227
LAC DU FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS, ET AL., PETITIONERS v. BRIAN W. COUGHLIN ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT [June 15, 2023]
Justice Thomas, concurring in the judgment.
As I have explained, to the extent that tribes possess sovereign immunity at all, that immunity does not extend to “suits arising out of a tribe’s commercial activities conducted beyond its territory.” Michigan v. Bay Mills Indian Community, 572 U. S. 782, 815 (2014) (dissenting opinion). Because respondent’s stay-enforcement motion arose from petitioners’ off-reservation commercial conduct, petitioners lack sovereign immunity regardless of the Bankruptcy Code’s abrogation provision. I therefore concur in the Court’s judgment.
“Tribal immunity is a judicial doctrine that is not mandated by the Constitution, … developed almost by accident, was reiterated with little analysis, and does not reflect the realities of modern-day Indian tribes.” Upper Skagit Tribe v. Lundgren, 584 U. S. ___, ___ (2018) (Thomas, J., dissenting) (slip op., at 12) (internal quotation marks omitted). To the extent that tribes have any sovereign immunity at all, it is a common-law immunity. Bay Mills, 572 U. S., at 816–817. Unlike the sovereign immunity enjoyed by the States under the Constitution, common-law immunity “is not a freestanding right that applies of its own force when a sovereign faces suit in the courts of another.” Id., at 816 ( ​internal quotation marks omitted). Rather, it “normally depends on the second sovereign’s law” as a matter of comity. Ibid. (internal quotation marks omitted). Because no federal law accords tribes sovereign immunity in federal court, petitioners lack immunity in this federal case.
Moreover, even if federal courts could afford immunity to tribes as a matter of comity, comity considerations would not help petitioners. “Even with respect to fully sovereign foreign nations, comity has long been discarded as a sufficient reason to grant immunity for commercial acts”—like those at issue here. Id., at 817 (emphasis added). And, far from furthering comity principles, recognizing immunity for off-reservation commercial acts “represents a substantial affront to a different set of sovereigns—the States.” Ibid. When a tribe engages in off-reservation commercial activity, “it necessarily acts within the territory of a sovereign State.” Id., at 818. Thus, to grant tribes a unique and unjustified immunity from both federal and state jurisdiction for commercial acts committed on a State’s territory “aggravate[s] relationships between States and tribes throughout the country.” Id., at 818–819. Accordingly, any common-law immunity that petitioners possess cannot support their claim to immunity in federal court for their off-reservation commercial conduct.
The Court’s tribal immunity doctrine is also out of step with more recent decisions. In Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___ (2019), the Court recognized that the 50 States possess a unique form of immunity that applies of its own force in the courts of sister States, id., at ___–___ (slip op., at 7–16), as well as those of the Federal Government, id., at ___ (slip op., at 12) (collecting cases). This immunity stems from the Constitution itself and belongs only to the 50 States through their ratification of the Constitution or admission to the Union on an equal footing with the original States. See Alden v. Maine, 527 U. S. 706, 713 ​(1999). As a result, it is distinct from common-law immunity, which depends upon the forum court’s sovereign for recognition. Bay Mills, 572 U. S., at 816. By treating tribal immunity like state immunity, the Court’s tribal immunity case law has afforded tribes, by judicial fiat, a form of immunity that the Constitution accords to the 50 States, and only the 50 States.
Finally, this Court’s tribal immunity doctrine continues to artificially exempt tribes from generally applicable laws. I warned nearly a decade ago that tribal immunity “will continue to invite problems, including de facto deregulation of highly regulated activities; unfairness to tort victims; and increasingly fractious relations with States and individuals alike.” Id., at 825. This is a case in point. In order to avoid state payday loan regulation, “payday lenders … often arrange to share fees or profits with tribes so they can use tribal immunity as a shield for conduct of questionable legality.” Ibid. Petitioners here rely on tribal immunity to avoid not only state but also federal payday loan regulation. They further seek to leverage this immunity to pursue respondent on his debt while other creditors’ collection efforts are stayed. Tribal immunity thus creates a pathway to circumvent vast swaths of both state and federal laws.
The consequences of the Court’s erroneous tribal immunity precedents have only gotten worse over the years. See id., at 814 (Scalia, J., dissenting) (“I am now convinced that [Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751 (1998)] was wrongly decided; that, in the intervening 16 years, its error has grown more glaringly obvious; and that stare decisis does not recommend its retention”); id., at 831 (Ginsburg, J., dissenting) (“[T]his Court’s declaration of an immunity thus absolute was and remains exorbitant”). Further, the doctrine simply cannot be reconciled with the Court’s precedents affirming “that the States have legislative jurisdiction over the off-reservation ​conduct of Indian tribes, and even over some on-reservation activities.” Kiowa, 523 U. S., at 762 (Stevens, J., dissenting) (describing the Court’s prior cases). Rather than accepting the flawed premise of tribal immunity and deciding the abrogation question beyond the looking glass, the Court should simply abandon its judicially created tribal sovereign immunity doctrine.