Importantly for those reading between the lines for application of the decision outside the context of gaming, the justices staked out their relative positions on tribal sovereign immunity in five different opinions. Justice Kagan’s majority opinion emphasized the importance of stare decisis and that the Kiowa decision reaffirmed a long line of precedent concluding that the doctrine of sovereign immunity—without any exceptions for commercial or off-reservation conduct—is settled law. Justice Sonia Sotomayor filed a concurring opinion to speak out against a “commercial activity” exception to tribal sovereign immunity.

But in a dissent authored by Justice Clarence Thomas and joined by Justices Antonin Scalia, Ruth Bader Ginsburg, and Samuel Alito, the minority argued that Kiowa should be overturned by the Court to allow states to take action against tribes engaged in off-reservation commercial activity. One of the examples cited by Justice Thomas of tribes abusing their sovereign immunity: payday lending.

“In the wake of Kiowa, tribal immunity has also been exploited in new areas that are often heavily regulated by states,” Justice Thomas wrote. “For instance, payday lenders (companies that lend consumers short-term advances on paychecks at interest rates that can reach upwards of 1,000 percent per annum) often arrange to share fees or profits with tribes so they can use tribal immunity as a shield for conduct of questionable legality.”

The dissent warned that “[a]s long as tribal immunity remains out of sync with this reality, it will continue to invite problems” and argued that the Court should not wait on Congress to take action on the issue.