Projects
American Indian Community Data Profile, 2002
Namadji Youth and Elders Project Report, 2001
Forum Reports
1997 Fall: Tribal Sovereignty and
American Indian Leadership
1996 Fall: Tribal Governments: What will they look like in the year 2010?
1996 Spring: The Threatened State of Tribal Sovereignty
Sovereign immunity
In essence, sovereign immunity is immunity from lawsuits generated in judicial systems that have no jurisdiction over tribes because of their sovereign right to govern themselves. Mark Anderson, an attorney with Anderson & Associates, offered an explanation of how tribes can regulate their own affairs and be shielded from state and local governments. He pointed out that sovereignty is not something granted by the federal government to Indian tribes, but is rather inherently possessed by the tribe. This was recognized in the historic Supreme Court case, U.S. v. Winans: "The treaty was not a grant of rights to the Indians, but a grant of rights from them--a reservation of those not granted."
To understand sovereign immunity, it's important to remember the following
points.
- Tribes possess inherent power to deal with internal affairs; they are their own source of power. The question is not "whence their authority?" But rather "whence the limitation on their authority?"
- States cannot interfere with tribal governments.
- The Supreme Court has recognized that Congress plenary power with Indian nations. In the past, Congress has used its plenary power to implement the Major Crimes Act and the policy of termination.
Several audience member raised questions the source of congressional plenary power. Anderson responded by saying he was only explaining legal conditions as they are, not as they should be. Sensible constitutional interpretations, many have argued, would lead to the conclusion that Indian tribes are and always have been entirely sovereign nations that should be considered with he same diplomacy as other foreign countries. Nevertheless, Congress continues to exercise plenary power to limit tribal authority.
Impact of Sovereign Immunity on Tribal Business
Sovereign immunity is not always a blessing. When seeking non-tribal business,
contracts must be drawn up to explicitly address the question of immunity.
Some businesses will not deal with Indian tribes or organizations because
of the inherent risk. Tribes may waive their immunity on a case-by-case
basis, as may tribal organizations or corporations. But their position
remains difficult because neither party can force the other into a transaction.
Torts
Indian tribes are considered equivalent to federal employees in cases
where an Indian commits a civil wrong against a non-Indian on non-Indian
land. However, Indian individuals and corporations can still buy liability
insurance to avoid any personal risk.
Taxes
In general, Indians who live and work on a reservation pay neither state
and local taxes, nor property taxes. They do pay federal taxes. Therefore,
tax-deferred IRAs are not usually available to tribal members. Tribal
revenues do, however, support local communities through separate community-building
efforts that would normally be paid for through local property taxes.
Tribal Courts
Tribal courts have full authority to handle local affairs in the community,
such as inheritance, adoption, domestic disputes and to adjudicate disputes
between nonmembers on tribal lands.
Lenore Sheffler, an attorney for the Prairie Island Dakota Community, talked about tribal corporations and businesses, such as casinos, and the impact sovereign immunity has on them. The ability to incorporate tribal businesses stems from the Indian Reorganization Act (IRA) of 1934. Article 16 provides for tribes to set up an "organized form of government" that could "safeguard and promote welfare by regulating trade" and would have "authority to charter organizations for economic activity."
If tribal governments organize tribal corporations under the IRA, they are immune from civil lawsuits unless they specifically waive their immunity. Individuals within the tribe may be sued under certain conditions, but not the whole tribe or tribal corporation.
An example of how this has been done is Little Six Corporation of the Shakopee Mdewakaton Dakota Community. The company incorporated on its own terms and made its own rules, as permitted by article 16. Its articles of incorporation included a provision stating their ability to "sue and be sued" without waiving the sovereign immunity of the whole tribe.
Employment issues
In general, state employment laws do not apply to tribal employees. Federal
laws do cover tribal employees unless tribes are specifically excluded
from the statute. For example, in upholding Indian preference in tribal
hiring practices, tribes were exempted from Title Seven discrimination
policy. Tribes were also excluded from the Americans with Disabilities
Act. In some cases, the provisions of a statute are overruled in the federal
courts, in which case, the case law history may be considered policy.
Public Law 280
Public Law 280 was enacted by Congress to address the relationship of
tribes to the states. Generally, tribes were acknowledged as having full
sovereign immunity from state jurisdiction unless the tribes voluntarily
relinquished their immunity. However, some states were exempted from the
statute and given jurisdiction over Indian tribes with in state boundaries.
Minnesota was included in the list of exceptions, but the Red Lake Band
of Ojibwe fought the statute and retained their full sovereign immunity.
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Tuesday November 1, 2005