Apart from the fascinating federal courts issue of tribal sovereign immunity, Michigan v. Bay Mills Indian Community offers a deep discussion of stare decisis for common law decisions, and what inferences should be drawn from legislative inaction. The dispute arises over the precedential value of a 1998 case, Kiowa Tribe v. Manufacturing Technologies, that extended tribal sovereign immunity to commercial activities that exist off the reservation. This allows a number of tribal-owned businesses, such as casinos, to operate outside the normal scope of state law. Since 1998, Congress has not taken any steps to remedy this decision. From this, Justice Kagan infers that Congress has acquiesced to Kiowa.
All that we said in Kiowa applies today, with yet one more thing: Congress has now reflected on Kiowa and made an initial (though of course not irrevocable) decision to retain that form of tribal immunity. Following Kiowa, Congress considered several bills to substantially modify tribal immunity in the commercial context. Two in partic- ular—drafted by the chair of the Senate Appropriations Subcommittee on the Interior—expressly referred to Kiowa and broadly abrogated tribal immunity for most torts and breaches of contract. See S. 2299, 105th Cong., 2d Sess. (1998); S. 2302, 105th Cong., 2d Sess. (1998). But instead of adopting those reversals of Kiowa, Congress chose to enact a far more modest alternative requiring tribes either to disclose or to waive their immunity in contracts needing the Secretary of the Interior’s approval. See Indian Tribal Economic Development and Contract Encouragement Act of 2000, §2, 114 Stat. 46 (codified at 25 U. S. C. §81(d)(2)); see also F. Cohen, Handbook of Federal Indian Law §7.05[b], p. 643 (2012). Since then, Congress has continued to exercise its plenary authority over tribal immunity, specifically preserving immunity in some contexts and abrogating it in others, but never adopting the change Michigan wants.11 So rather than confronting, as we did in Kiowa, a legislative vacuum as to the precise issue presented, we act today against the backdrop of a congressional choice: to retain tribal immun- ity (at least for now) in a case like this one.12
In dissent, Justice Thomas finds “unavailing” this argument about legislative inaction:
In support of its adherence to stare decisis, the majority asserts that “Congress has now reflected on Kiowa” and has decided to “retain” the decision. Ante, at 18; see also ante, at 19 (“[W]e act today against the backdrop of an apparent congressional choice: to keep tribal immunity . . . in a case like this one”). On its face, however, this is a curious assertion. To this day, Congress has never granted tribal sovereign immunity in any shape or form—much less immunity that extends as far as Kiowa went. What the majority really means, I gather, is that the Court must stay its hand because Congress has implicitly approved of Kiowa’s rule by not overturning it.
This argument from legislative inaction is unavailing. As a practical matter, it is “ ‘ impossible to assert with any degree of assurance that congressional failure to act rep- resents’ affirmative congressional approval of ” one of this Court’s decisions. Patterson v. McLean Credit Union, 491 U. S. 164, 175, n. 1 (1989) (quoting Johnson v. Transporta- tion Agency, Santa Clara Cty., 480 U. S. 616, 672 (1987) (SCALIA, J., dissenting)); see also Girouard v. United States, 328 U. S. 61, 69 (1946) (“It is at best treacherous to find in congressional silence alone the adoption of a con- trolling rule of law”); Helvering v. Hallock, 309 U. S. 106, 121 (1940) (“[W]e walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle”). There are many reasons Congress might not act on a decision like Kiowa, and most of them have noth- ing at all to do with Congress’ desire to preserve the deci- sion. See Johnson, 480 U. S., at 672 (SCALIA, J., dissent- ing) (listing various kinds of legislative inertia, including an “inability to agree upon how to alter the status quo” and “indifference to the status quo”).
But, adding a wrinkle to the inaction analysis, Thomas asserts that because Kiowa was a common-law, and not statutory decision, legislative inaction is even less relevant. There was not statute to amend or fix. Kiowa was judge-made law.
Even assuming the general validity of arguments from legislative inaction, they are a poor fit in this common-law context. Such arguments are typically based on the prem- ise that the failure of later Congresses to reject a judicial decision interpreting a statute says something about what Congress understands the statute to mean. See, e.g., id., at 629, n. 7 (majority opinion). But it is not clear why Congress’ unenacted “opinion” has any relevance to de- termining the correctness of a decision about a doctrine created and shaped by this Court. Giving dispositive weight to congressional silence regarding a common-law decision of this Court effectively codifies that decision based only on Congress’ failure to address it. This ap- proach is at odds with our Constitution’s requirements for enacting law. Cf. Patterson, supra, at 175, n. 1 (“Congress may legislate . . . only through the passage of a bill which is approved by both Houses and signed by the President. Congressional inaction cannot amend a duly enacted statute” (citation omitted)). It is also the direct opposite of this Court’s usual approach in common-law cases, where we have made clear that, “in the absence of an applicable Act of Congress, federal courts must fashion the governing rules.”
Thomas refers to consideration of legislation inaction in the common-law context “not deference, but abdication.”
Allowing legislative inaction to guide common-law deci- sionmaking is not deference, but abdication.6
So what strength of stare decisis attaches for common law decisions? Not a “special force.”
6Of course, stare decisis still applies in the common-law context; I reject only the notion that arguments from legislative inaction have any place in the analysis.
I also reject the majority’s intimation that stare decisis applies as strongly to common-law decisions as to those involving statutory interpretation. The majority asserts that stare decisis should have “‘special force’” in this case because “‘Congress remains free to alter what we have done.’ ” Ante, at 16 (quoting Patterson v. McLean Credit Union, 491 U. S. 164, 172–173 (1989)). Although the Court has invoked this reasoning in the statutory context, I am not aware of a case in which we have relied upon it to preserve a common-law decision of this Court. Indeed, we have minimized that reasoning when interpreting the Sherman Act precisely because “the Court has treated the Sherman Act as a common-law statute.” Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877, 899 (2007) (emphasis added); see also State Oil Co. v. Khan, 522 U. S. 3, 20–21 (1997) (“[T]he general pre- sumption that legislative changes should be left to Congress has less force with respect to the Sherman Act in light of the accepted view that Congress ‘expected the courts to give shape to the statute’s broad mandate by drawing on common-law tradition’”). Surely no higher standard of stare decisis can apply when dealing with common law proper, which Congress certainly expects the Court to shape in the absence of legislative action. See, e.g., National Metropolitan Bank v. United States, 323 U. S. 454, 456 (1945).
Thomas also addresses the question of what inferences should be drawn when Congress expressly declines to act at the Court’s behest:
The majority posits that its inference of congressional approval of Kiowa is stronger because Congress failed to act after the Kiowa Court “urg[ed]” Congress to consider the question presented. Ante, at 17, 19–20 (quoting Kiowa, 523 U. S., at 758) (“[W]e defer to the role Congress may wish to exercise in this important judgment”). But this circumstance too raises any number of inferences. Congress is under no obligation to review and respond to every statement this Court makes; perhaps legislative inertia simply won out. The majority seems to suggest that Congress understood Kiowa to assign the burgeoning problems of expansive common-law immunity to the Legis- lature, and then chose to let those problems fester. But Congress has not explained its inaction, and we should not pretend that it has done so by remaining silent after we supposedly prodded it to say something. Even if we credit the relevance of post-Kiowa congressional silence in this common-law context—and I do not—there is certainly not enough evidence of congressional acquiescence here “that we can properly place on the shoulders of Congress the burden of the Court’s own error.” Girouard, 328 U. S., at 69–70.
In a footnote, Kagan discounts the revelance of the dissent’s claim that Kiowa is a common law decision.
The dissent principally counters that this history is not “relevan[t]” because Kiowa was a “common-law decision.” Post, at 14. But that is to ignore what Kiowa (in line with prior rulings) specifically told Congress: that tribal immunity, far from any old common law doctrine, lies in Congress’s hands to configure. See 523 U. S., at 758; Potawatomi, 498 U. S., at 510; Santa Clara Pueblo v. Martinez, 436 U. S. 49, 58– 60 (1978). When we inform Congress that it has primary responsibility over a sphere of law, and invite Congress to consider a specific issue within that sphere, we cannot deem irrelevant how Congress responds.
Specifically, when the Court asks Congress to do something, and Congress does nothing, Kagan would draw the inference that Congress has accepted the Court’s ruling. Wouldn’t this be a great place to cite Northwest Austin and Shelby County about legislative inaction? But doesn’t this beg Thomas’s question a bit? Any common law decision can be reversed by statute. But the precedent itself is common law.
Justice Scalia stated the issue more bluntly–the Court made this common law problem, so the Court should fix this common law problem.
In Kiowa Tribe of Okla. v. Manufacturing Technolo- gies, Inc., 523 U. S. 751 (1998), this Court expanded the judge-invented doctrine of tribal immunity to cover off- reservation commercial activities. Id., at 760. I concurred in that decision. For the reasons given today in JUSTICE THOMAS’s dissenting opinion, which I join, I am now con- vinced that Kiowa was wrongly decided; that, in the inter- vening 16 years, its error has grown more glaringly obvi- ous; and that stare decisis does not recommend its retention. Rather than insist that Congress clean up a mess that I helped make, I would overrule Kiowa and reverse the judgment below.
Fascinating. I think Thomas gets the better of Kagan here.