Issues: Native American Rights: The Basics

Congress should preserve the existing immunity that protects the treasuries of tribal governments, as sovereigns, from lawsuits as long as sovereign immunity remains a prerogative for any other governmental entity in the U.S.

WHAT IS "SOVEREIGN IMMUNITY"?

Sovereign immunity is a legal principle invoked by governments that grants them limited immunity from civil suits in order to protect public assets and prevent the disruption of vital government services. The federal government claims sovereign immunity across a wide range of functions that it considers to be inherently "governmental." State governments also claim sovereign immunity. Many states have adopted limited waivers of immunity but still retain protections for core governmental functions and limit compensatory and punitive damages. The Eleventh Amendment to the Constitution specifies that the federal courts have no authority to hear private suits brought against states. Most states have extended limited waivers of immunity to local governments so that core public services will not be impeded by litigation.

SOVEREIGN IMMUNITY FOR TRIBAL GOVERNMENTS

Like federal and state governments, tribal governments also claim limited sovereign immunity. Tribal governments provide many vital services to their members, such as police and fire departments, which must be protected from civil suit. Tribal sovereign immunity is limited in several respects. First, Indian tribes, contractors, and employees are considered to be agents of the federal government when a tribal program operates with federal dollars. In these cases, federal laws apply. Second, like federal and state governments, many tribes voluntarily include limited waivers of immunity in commercial contracts and other business enterprises. Third, federal court decisions have limited tribal sovereign immunity by specifying various circumstances in which tribes or tribal officials can be held liable. For example, tribal officials are not immune if their actions go beyond their governmental authority.

WAIVE TRIBAL IMMUNITY?

In recent years, legislation has been proposed that would waive tribal sovereign immunity without the consent of the tribe. Proponents of mandatory waivers argue that tribal governments abuse the principle of sovereign immunity. They believe that non-Indians who initiate civil actions against tribes are denied justice in tribal courts because tribal courts are incapable of dispensing justice in civil disputes between non-Indians and tribal governments. Other proposals would waive tribal sovereign immunity to allow states to sue tribes in federal court when tribes and states are unable to reach agreement on taxation or other issues. Supporters argue that states should have judicial recourse when states and tribes cannot reach agreement.

Tribal courts are no more or less fallible than state or federal courts. Nor are states at any greater disadvantage when negotiating with tribes than they are in negotiating with neighboring states or the federal government. Tribes should not be required to unilaterally waive their immunity or open themselves to suit in federal (rather than tribal) courts:

Waiving sovereign immunity would threaten the fiscal solvency of tribal governments. Sovereign immunity of tribes is particularly important because most tribes have limited resources which could be quickly depleted by unlimited litigation. Former Attorney General Janet Reno stated that involuntary waivers of tribal immunity would, "undermine the ability of Indian tribes to perform governmental functions and threaten tribal government solvency." She observed that, just as federal and state governments exercise extreme caution in waiving their sovereign immunity, tribes must reserve the same right to protect their governmental functions from undue intrusion.

Waiving immunity would undermine sovereignty and self-determination by permitting non-Indians to circumvent tribal courts. Under some proposals, civil suits could be moved from tribal courts to state or federal courts. As legitimate institutions that comprise the central pillars of tribal self-governance, tribal courts play an essential role in resolving conflicts on reservations. Circumventing tribal courts in disputes between tribal governments and non-Indians living within or near tribal jurisdictions would deeply undermine the sovereign authority of tribes over their lands and legal jurisdictions.

Imposing an involuntary waiver of governmental immunity only on tribal governments is discriminatory.

Non-Indian governmental bodies are as culpable as tribal bodies when it comes to producing unjust decisions and policies. However, when non-Indian governmental bodies fail to live up to expectations they become the focus for reform efforts, not efforts to dismantle them. If sovereign immunity is to be waived, it should be waived equally for all governmental entities in the U.S. Rather than undermine tribal sovereignty and dismantle tribal agencies that fail to meet the expectations of non-Indians, lawmakers should extend to tribal courts the same principle of reform applied to state and local agencies.

A BETTER APPROACH

Instead of circumventing tribal courts and exposing tribes to endless and costly litigation, Congress and the administration should be helping tribes to increase the capacity of their court systems so that they will function more efficiently, competently, and fairly in all cases. They can support reform efforts where reform is needed and ensure that tribal justice systems have the resources they need to meet the highest standards.

Congress and the Administration should

Collaborate with tribes to develop alternative approaches. For example, tribal governments might be allowed to opt in to limited federal review of tribal court decisions in exchange for tribal court jurisdiction over non-Indians living within reservation boundaries. This would improve tribal courts, give a clear means for appeal of tribal court decisions, and simplify jurisdictional disputes.

Work with tribes to form a tribally run intertribal appeals court.

Secure full funding for The Indian Tribal Justice Act of 1993, intended to assist tribes in increasing the capacity of their courts.