[Congressional Record Volume 160, Number 135 (Friday, September 19, 2014)]
[Extensions of Remarks]
[Pages E1457-E1458]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  THE UNITED STATES SUPREME COURT'S DECISION IN MICHIGAN V. BAY MILLS 
                            INDIAN COMMUNITY

                                 ______
                                 

                             HON. TOM COLE

                              of oklahoma

                    in the house of representatives

                      Thursday, September 18, 2014

  Mr. COLE. Mr. Speaker, on May 27, 2014 the United States Supreme 
Court issued its decision in Michigan v. Bay Mills Indian Community, 
wherein the Court affirmed the sovereign immunity of our Nation's 
federally-recognized Indian tribes for off-reservation commercial 
activities. Because the United States Constitution expressly and 
exclusively grants to Congress plenary authority over every one of our 
Nation's 566 federally-recognized Indian tribes, I rise to provide my 
views on this decision that can have serious ramifications for Indian 
Country.
  As the Court's Bay Mills decision correctly observes, our nation's 
federally recognized Indian tribes are independent governments whose 
sovereignty pre-dates the United States Constitution. Our founding 
fathers wisely chose to subject Indian tribes solely to the authority 
of the United States Congress, to the exclusion of state governments, 
as well as the Executive and Judicial branches of the federal 
government. And though Indian tribes are subject to the authority of 
Congress, they retain all of their inherent and historic sovereign 
powers, except as those powers may be expressly modified by Congress. 
If Congress does not act to take away the sovereign powers of Indian 
tribes, those powers are retained.
  One of the most important attributes of sovereignty possessed by 
Indian tribes is sovereign immunity from suit, including suits 
initiated by State governments. In addition to being consistently 
affirmed by decisions of our nation's highest court over the past two 
centuries, tribal sovereign immunity has been repeatedly acknowledged 
and confirmed in federal case precedent. Thus the Supreme Court 
correctly upheld the sovereign immunity of the Bay Mills Indian 
Community, and affirmed the express desire of Congress that Indian 
tribes retain the fullest extent of their immunity from suit.
  Like state and federal governments, Indian tribes rely on their 
inherent sovereign powers, including immunity, to protect their 
treasuries and further their economies. These sovereign powers are 
vital for any government to provide essential programs and services for 
its citizens and are critical in maintaining the viability of our 
nation's Indian tribes, many of which are located in the most 
economically depressed regions of the country and have been under 
constant duress due to severe cutbacks in federal funding over the past 
several decades. For Indian tribes, sovereign immunity is necessary not 
only to protect the Tribes from private litigants, but also to prevent 
state governments from overstepping their constitutional authority and 
diminishing the rights and sovereignty of Indian tribes through 
litigation. As the Supreme Court acknowledged in the Bay Mills Indian 
Community decision, only Congress has the authority to diminish the 
sovereign rights of Indian tribes.
  While I applaud the Supreme Court's decision affirming Tribal 
sovereign immunity, I am deeply disturbed by dicta in the Court's 
majority opinion that is not only at odds with the Constitution and 
prior Supreme Court precedent, but is an affront to tribal sovereignty. 
In its majority opinion, the Court suggests that a state may bring a 
suit for prospective injunctive relief against tribal officials for 
alleged violations of state law based on the doctrine of Ex Parte 
Young. Prior Supreme Court precedent, however, has made clear that the 
doctrine of Ex Parte Young only permits suit for prospective injunctive 
relief against government officials for alleged violations of federal 
law, not for alleged violations of state law. The basis for authorizing 
such suits against government officials is that federal law is supreme

[[Page E1458]]

to state and tribal law, and thus states and tribes cannot officially 
authorize their officials to violate federal law. However, state law is 
not supreme to tribal law under the United States Constitution. The 
Court's suggestion that tribal officials acting in their official 
capacity are subject to suit for alleged violations of state law is not 
only in clear conflict with prior Supreme Court precedent, but 
permitting such suits would eviscerate tribal sovereign immunity by 
giving states the ability to do indirectly what our Constitution has 
prohibited from them doing directly: exercising jurisdiction and 
authority over Indian tribal governments through litigation. 
Furthermore, it will undoubtedly expose tribal officials to individual 
liability and aggravation if they are named in baseless Ex Parte Young 
suits.
  Perhaps worse, the Supreme Court's Bay Mills decision includes dicta 
suggesting that, if civil remedies against Indian tribes and their 
officials ``prove[] inadequate,'' a state may bring criminal charges 
against tribal officials acting in their official capacity for alleged 
violations of state law. This also would enable states to trump the 
sovereign rights of Indian tribes by criminalizing what would otherwise 
be civil, government-to-government disputes between states and Indian 
tribes. Such action would violate the United States Constitution and 
the sovereign rights of Indian tribes that the Constitution guarantees. 
Again, the Constitution withholds from States the authority to exercise 
jurisdiction and power over Indian tribes, and grants that power solely 
to Congress. The Supreme Court does not have the power to usurp 
Congress' Constitutionally granted plenary power over Indian affairs by 
granting States the right to criminalize the exercise of tribal 
sovereignty where Congress has not seen fit to do so. And again, it 
will be tribal officials acting in their official capacity that could 
be exposed to potential criminal liability for doing the very same 
thing that all of us who are here as elected officials are trying to 
do--be good civil servants.
  Therefore, I urge our federal and state judiciaries to treat the 
above-referenced dicta (and erroneous dicta at that) in the Bay Mills 
decision as just that: non-binding dicta, and to instead uphold the 
United States Constitution by deferring to Congress on all issues 
involving tribal-state conflicts. Where Congress has not expressly 
chosen to subject Indian tribes to state jurisdiction or authority, the 
states cannot usurp Congress' plenary and exclusive authority over 
Indian tribes by bringing suits or criminal charges against tribal 
officials for alleged violations of state law as a means of exercising 
control over sovereign Indian tribes.

                          ____________________