Tribal Sovereign Immunity: Will These Rights Survive Judicial Review?

Abstract

THE SOVEREIGN IMMUNITY of Native American tribes has been a well-engrained principle of federal Indian law for time eternal. Pursuant to this principle, tribes are viewed as independent sovereigns and therefore are accorded the same sovereign rights and immunities as state governments and local municipalities.1 The doctrine of sovereign immunity provides tribes with a “common law immunity” from suit.2 It is well-settled federal law that tribes, as sovereigns, are immune from suit “without congressional authorization.”3 As explained by the Arizona Federal Court in Hotvela, “tribes are sovereign entities and therefore immunity protects a tribe from nonconsensual actions in state and federal court.”4 The Ninth Circuit Court of Appeals affirmed these principles underlying the application of sovereign immunity last year in a lawsuit involving an Arizona tribe.5 As a general rule, no state, county or city may assert regulatory or jurisdictional power over a tribal government unless the federal government has expressly granted such rights by statute, or the tribe has expressly consented. The Tribal-State Compacts governing Class III gaming throughout Indian Country in the United States pursuant to the Indian Gaming Regulatory Act (IGRA) are a prime example of tribes ceding certain sovereign rights through compromised legislation. Further, no one may sue a tribe without the tribe having expressly agreed to waive its sovereignty rights. This includes pursuing a suit in Tribal Court, as well as through nonjudicial forums such as arbitration. As everyone who has done business with and on behalf of Native American gaming operations knows, tribal casinos must be owned by the tribe pursuant to IGRA. As a result, the tribal gaming enterprises are typically structured as economic subordinates of the tribal government. This generally holds true regardless of whether the tribal casino is operated directly by the tribe, as a separate corporation or other entity formed under tribal law. By virtue