The Lawletter Vol 36 No 9
Indian Tribes, like the individual States, have immunity from suit pursuant to the federal law of each Tribe's sovereign status. While this immunity may be waived by a Tribe or Congress may abrogate it through clear and unequivocal legislative action, generally an American Indian Tribe may not be haled into court.
The Tribes' important sovereign immunity has not, however, gone unchallenged in recent years. Significantly, Congress has legislated some exceptions to tribal immunity in specific circumstances. For example, in 1968, Congress enacted the Indian Civil Rights Act, 25 U.S.C. §§ 1301–1341, which makes certain substantive rights arising from the Bill of Rights to the U.S. Constitution, already applicable to States through the Fourteenth Amendment, also binding on American Indian tribal governments. These legislative actions, however, have not changed the general broad concept of tribal sovereign immunity.
When presented with a challenge to the doctrine of tribal sovereign immunity in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), the U.S. Supreme Court specifically refused to make any significant changes to the way in which that doctrine has been interpreted. In that case, a private entity had contracted with the Kiowa Tribe's Industrial Development Commission, and the Tribe had executed a promissory note with the private entity outside the boundaries of the Tribe's lands. When the Tribe defaulted, the entity brought suit against the Tribe in state court. The state court denied the Tribe's motion to dismiss for lack of jurisdiction. The Supreme Court eventually reversed, and, while it questioned the wisdom of tribal immunity, the Court enforced its own precedent and held, as a matter of federal law, that an Indian Tribe is subject to suit only where Congress so states or where the Tribe waives its own immunity. The Court emphasized that no distinction has ever been drawn either between whether a Tribe engages in governmental or commercial activity or based on where the activity takes place.
State courts are also asked to interpret tribal sovereignty when it is challenged and have upheld the basic principles of the federal law. Recently, in State v. Native Village of Tanana, 249 P.3d 734 (Alaska 2011), the Supreme Court of Alaska held that the Indian Child Welfare Act, 25 U.S.C. § 1911, did not extinguish tribal sovereignty or a Tribe's jurisdiction over child custody protection proceedings. Importantly, the court further held that the elimination of most of the Indian territory in Alaska did not divest the federally recognized sovereign Alaskan Tribes of their authority to regulate internal disputes among their members.