Always a controversial topic, tribal sovereign immunity is complicated. Most immunities law usually revolve around complexities that one blog post or law review comment probably couldn’t succinctly summarize with satisfaction. Most immunities are codified in statute. California, for example, has the California Tort Claims Act, and the United States has the Federal Tort Claims Act. Tribal sovereign immunity, for the most part, is not codified by any statute, but remains within the realm of federal common law, fleshed out by judicial opinions only.
This blog focuses on the “broad strokes” of tribal sovereign immunity, a general outline. Those that read my articles on tribal disenrollment will know that I briefly covered the topic in my first article. That article summarized the doctrine but did not explore its origins. This one will.
A brief definition of tribal sovereign immunity will start us out. Essentially, an Indian tribe is immune from suit (i.e., cannot be sued) unless Congress says otherwise. Questions arise from this statement. How is an Indian tribe sovereign? The United States has sovereignty within its own lands and the fifty states that comprise our republic have sovereignty within their own borders. Indian tribes reside within the borders of the United States and within individual states, and sometimes spanning the borders of neighboring states and foreign nations. Tribal sovereignty overrides a state’s authority (with exceptions to places like California that exercise civil and criminal jurisdiction over Indian lands via Public Law 280). How did this happen? Who said Indian tribes have any sovereignty from which to override the sovereignty of states and impose its own customs upon those who step onto their lands? The United States Supreme Court.
Congress, too, was provided with constitutional authority to regulate commerce among the various states, foreign nations, and the “Indian tribes.” The basis of this Indian Commerce Clause was explored by the Marshall Trilogy.
The Marshall Trilogy
Indian tribes existed before the United States. The United States conquered the Indian tribes, thus ending their dominion over their own lands. However, the United States Supreme Court recognized their pre-existing sovereignty and realized that, despite their conquered status, Indian tribes were unique, but they would be dependent upon the nation that conquered them for basic needs. Thus, the idea that Indian tribes were “domestic dependent nations” was born. Also, their immunity from suit derived from this sovereignty that was lesser than federal sovereignty, but greater than a state’s.
In the early 19th Century, Chief Justice of the Supreme Court, John Marshall, authored a set of three opinions that later became known as the Marshall Trilogy, effectively creating tribes’ sovereignty. A break-down of the cases goes like this:
- Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823), recognized that Indian tribes were conquered by the European powers and lost whatever rights they had to owning the land. Through various wars, the United States took over European possessions within the United States, thus gaining full title to the land, rendering tribal claims over the land useless.
- Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), established that Indian tribes were “denominated domestic dependent nations” who had a different culture and society much like foreign nations, but depended upon the United States for their survival. However, tribes’ sovereign immunity was acknowledged as pre-existing that of the United States.
- Worcestor v. Georgia, 31 U.S. (6 Pet.) 515 (1832), held that the United States, and not any individual State, held ultimate authority over the regulation of Indian tribes.
Now that tribes were sovereign nations, their immunity from suit had to be established by Supreme Court case law as well. In prior articles, I’ve established that immunity was an assumption (Turner v. United States, 248 U.S. 354 (1919)), but as the law developed, it was accepted as a formal doctrine of law. See United States v. United States Fidelity & Guaranty Co., 309 U.S. 506 (1940). It wasn’t until Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), nearly 80 years after United States Fidelity, that the Supreme Court took umbrage with the so-called doctrine:
At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States. In our interdependent and mobile society, however, tribal immunity extends beyond what is needed to safeguard tribal self-governance. This is evident when tribes take part in the Nation’s commerce. Tribal enterprises now include ski resorts, gambling, and sales of cigarettes to non-Indians. In this economic context, immunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims.
However, until Congress says otherwise (remember, they retain sole discretion to regulate commerce amongst the Indian tribes), the doctrine of sovereign immunity continues and has expanded, despite judicial frowning.
I’ve blogged about a few of those expansions: protecting tribal casino employees from tort suits, protecting tribal loan companies, and of course, the most prominent of my Indian law research, protecting tribes’ membership enrollment / dis-enrollment decisions.
Is it a perfect rule of law? By all means, no, neither for Indian tribes who are sometimes protected by the doctrine nor non-Indians who have run up against sovereign immunity whose suits probably should have been heard before a trier of fact. However, the deeds of the past remain ever prominent in the present. The United States owes the Native American a duty to provide for their basic needs. From what I’ve seen, the United States has performed with bare minimum of effort and outright negligence. Violent crime runs rampant in the poorest of Indian reservations on a per capita scale that dwarfs major cities. Alcoholism, suicide, and rape are the plagues of 21st Century Native America. Last but not least, poverty. Don’t let Indian gaming fool you.
So, in conclusion, this is a brief overview of tribal sovereign immunity and its problems.