Page:Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.pdf/20

Rh

, 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) (, 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 (