What’s Going on With Tribal Sovereign Immunity?

Since we started this blog in fall 2007, there have been a plethora of tribal sovereign immunity federal and state court decisions. Most of them are routine — slips and falls, internal tribal disputes — but a handful of these cases are worth watching because of the subject matter and the general uniqueness of the problem.

Oklahoma gaming compacts — the Oklahoma Supreme Court has been interpreting the Class III Oklahoma gaming compacts as virtual waivers of immunity, in almost comically formalistic ways. These compacts, passed by the state’s voters, are a take-it-or-leave-it prospect for tribes. They allow for suits against the tribes in a court of “competent jurisdiction,” which the Oklahoma court has interpreted to mean state courts. Opinions here and here.

Dram Shop Actions — Again, these would not be unusual except the Oklahoma Supreme Court has found a waiver of immunity in state courts for dram shop actions. That case, Bittle v. Bahe, conflicts with the decisions of several other courts (discussion here).

Bivens Actions against tribal cops — A federal common law cause of action against tribal officers gained ground in federal district court, but didn’t get so far in the circuits (here and here).

Section 1983 claims against tribal cops — Did gain ground (here).

Payday loan operations — Currently up for review in the Colorado Supreme Court are franchises owned by two tribes doing business as payday loan operators and attempting to avoid state process and investigation (here). A related California case is here.

Tribal fee lands — A Washington court held that it continues to have in rem jurisdiction over tribally-owned fee lands (here).

Cherokee Freedmen case — the D.C. Circuit allowed the Vann lawsuit to proceed against tribal officials under the Ex parte Young theory, but more or less vacated the district court’s theory that the 13th Amendment somehow abrogated tribal sovereign immunity.

This entry was posted in Author: Matthew L.M. Fletcher, economic development, gaming, Research, sovereign immunity and tagged . Bookmark the permalink.

5 Responses to What’s Going on With Tribal Sovereign Immunity?

  1. Clark says:

    I agree that tribal governmental operations should have sovereign immunity; however, when those operations clearly constitute enter the commercial enterprise arena, they should be subject to the same laws and regulations, etc. to which all commercial enterprises are subjected.

    Indian sovereignty and the reservation concept was intended to allow Indians, to the extent possible under the circumstances, to preserve their way of life. It certainly was not an ideal solution, but the intent, at least was there.

    Indians are largely to blame for the conditions they live in today. There are many cases where they have entirely surrendered their cultures, lost their languages and not practiced the ways of their ancestors.

    I’m certain it was extremely difficult for the Indians to matriculate society; however, after as much as 200 years, that excuse is no longer valid. So many Indians like so many whites, blacks and others are too lazy to get an education and become valuable contributing members of society. The reality is that nobody owes them or you anything. Life is not fair. That truism is applicable regardless of race, religion or ethnicity.

    Another truism is that there is no such thing as a free lunch. If you want to stay on the reservation and live as your ancestors did, no one is going to bother you. On the other hand, if you have what the rest of the Country has, you have to be willing to pay the price.

  2. SD grouch says:

    I don’t understand how Mr. Clark can turn a tribal sovereignty case into a complaint about lazy people or the loss of Native culture. Using the standard “get with the program” and “pull up your boot straps metaphors.”

    Mr. Clark (and those who share his belief) is mistaken if he believes that the reservation system was meant to serve as a safe haven for Native People, when in fact official government policy from the time of the Puritans in the 1600’s was to assimulate Native People by outlawing or discouraging Native culture, language, and beliefs. The federal termination policy from the 1950’s to 70’s being the highwater mark of this.

    As for the intent of sovereignty, you can’t say you support sovereignty, then cherry pick what you support or don’t support. Either a nation or people have full control over themselves or they don’t.

    I also don’t share Mr. Clark’s assertion that Native People are too blame for their situation as many of us are productive members of mainstream society, but still see and experience prejudice and discrimination on a daily basis.

    Native People didn’t ask that Europeans come to this hemisphere and subjugate us and expose us to disease, wars, alcohol, and narcotics. We didn’t ask to have our traditional ways to be repressed and our children at one time to be take from us and given this idea that our ways were wrong, and by extension we were wrong.

    I don’t expect people like Mr. Clark to change their views and he is entitled to his. But as a educated Native I just couldn’t let such claims to go unchallenged, even though those like me know better.

  3. Lawman says:

    Ckark’s statements are an adequate representation of what non-Indians understand about tribal sovereignty and the role of tribal governments. However, what Clark fails to grasp is that tribal governments operate businesses to support the tribal government and provide services to its members. If one was to follow Clark’s argument to its logical conclusion, then all of the businesses that the federal government engages in should be subject to state and local laws as well. For example, all of the grocery stores and shopping outlets on military bases that are operated by the federal government or allowed to be present by the federal government on the base should be subject to the same standards as commercial businesses as the state in where they are located. Oh but wait, that’s the military and they deserve a break right? What about the tribes that the federal government forceably removed from their homelands, and the tribes that have had their natural resources stolen from them by non-Indian bandits posing as Indian Agents. What about the military’s slaughter of women and childern at Sand Creek and all across the Great Plains and Southwest. And what about the storage of radioactive nuclear waste on tribal land that is sacred to a tribe the same as Arlington National Cemetery is to the United States. I am sure that Clark would say “But that’s the Indians.” If Clark is going to offer a comment on tribal sovereingty, tribal culture, then he needs a better understanding than he currently holds. But wait, that’s just the non-Indian, right?

  4. Pingback: Wampanoag Sovereign Immunity Lawsuit in Florida « Turtle Talk

  5. Joe Vilardo says:

    Several of us non-Native American Indian (NAI) employees were terminated without just cause. The employer, a Corporation set up by a Native American Indian tribe that enjoys “Sovereign Immunity”, is a Casino, situate on Sovereign land, yet the Casino was set up by the NAI as a corporation. We were paid by the corporation. Does the employer (the corporation) enjoy Soveriegn Immunity (SI) from lawsuits, or, as in two cases, Dixon, 772 P.2d at 1109 and also MacArtur, 391 F. Supp. 2d at 1042, the courts agreed to look at several factors for determining whether the subordinate economic enterprise (the corporation) enjoy SI. Need help

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