Page:Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.pdf/22

Rh (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