Page:Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.pdf/26

Rh U. L. Rev. 1587, 1640 (2013) (Wood).

While venerable, tribal immunity—like its state and foreign counterparts—is not immutable. The federal government can abrogate it, at least as far as its fonts of power let it. See Santa Clara Pueblo, 436 U. S., at 58–59; cf. Brackeen, 599 U. S., at ___ (opinion of ) (slip op., at 31). But the choice to abrogate tribal immunity is fundamentally political in nature. It is a choice that therefore belongs to Congress, the “department which can modify [the law] at will,” and not the Judiciary, the “department which can pursue only the law as it is written.” Brown v. United States, 8 Cranch 110, 129 (1814) (Marshall, C. J., for the Court). Recognizing the Constitution’s division of responsibility, this Court has long left all decisions about tribal and other sorts of sovereign immunity “in Congress’s hands.” Michigan v. Bay Mills Indian Community, 572 U. S. 782, 789 (2014).

Because “erroneous abrogation[s]” of immunity risk inter-sovereign conflicts and reprisals, this Court employs an additional interpretive guardrail—“a clear statement requirement designed to ensure that the political branches acted knowingly and intentionally” in divesting sovereigns of their legal entitlements. A. Bellia & B. Clark, The Law of Nations as Constitutional Law, 98 Va. L. Rev. 729, 792–793 (2012). Under this approach, we will not read a statute to abrogate immunity “if any other possible construction remains.” Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804); see also, e.g., Financial Oversight and Management Bd. for P. R. v. Centro De Periodismo Investigativo, Inc., 598 U. S. ___, ___ (2023) (slip op., at 1). That goes for Tribes just as it goes for other sovereigns; it is an “enduring principle of Indian law” that we “will not lightly assume that Congress in fact intends to undermine Indian” sovereignty absent pellucid evidence to the contrary. Bay Mills, 572 U. S., at 790.

All this explains the now-familiar clear-statement rule