Protecting Tribal Sovereign Immunity
The challenges and opportunities ahead
By Ernie Stevens Jr .
Suppose a federal employee began drinking at work on federal property and caused an accident on his way home . The victim of this accident could certainly bring a suit against the federal employee , but would that victim ever consider suing the United States government ? The United States and the 50 states have laws and regulations protecting their sovereign status and ability to be sued . This is a right of the sovereign that goes back to the days of kings .
Indian nations , as sovereigns , possess the same sovereign immunity from suit that federal and state governments possess . Tribal sovereign immunity is a recognized doctrine of federal law based on the status of Indian tribes as sovereigns whose existence predates the United States .
Recently , within the past two years , the Supreme Court has limited tribal sovereignty and jurisdiction vis-à-vis non-Indians . This challenge may also represent an opportunity that can be addressed through the use of risk management , risk pools , tribal tort reform and federal legislation affirming the authority of Indian tribes to establish our own laws on tort reform .
Native peoples are the original inhabitants of the Americas , endowed by our creator with inalienable rights to life , liberty and the pursuit of our ways of life . From the beginning of time , our grandmothers and grandfathers founded our nations ’ tribal governments to preserve our native rights , safeguard our rights to freedom and liberty , and exercise self-government to protect native lands , culture and future generations .
When Europeans first landed on American shores , they sought out Native Americans for advice , friendship , and to secure permission to live in America . The Dutch came to New Netherlands ( now New York ) in 1609 under orders to negotiate with tribes for land . The English colonies sought recognition of their colonial lands taken from neighboring Indian nations , but recognized Indian tribes as the original owners of the soil .
In his Statement on American Indian Policy ( 1983 ), President Ronald Reagan explained the historic nation-to-nation relations between the
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United States and Indian nations :
“ When European colonial powers began to explore and colonize this land , they entered into treaties with sovereign Indian nations . Our new nation continued to make treaties and to deal with Indian tribes on a government-to-government basis . Throughout our history , despite periods of conflict and shifting national policies in Indian affairs , the government-to-government relationship between the United States and Indian tribes has endured .”
In the bigger picture , there are looming challenges to tribal sovereign immunity , especially in cases involving tort liability to third parties arising in the commercial context . Often the challenges to tribal sovereign immunity arise in cases where smalldollar claims are at issue —$ 25,000 in some cases . In the Kiowa and Bay Mills decisions , the Supreme Court questioned whether tribal sovereign immunity should extend to third-party tort victims . The Supreme Court explained : “ There are reasons to doubt the wisdom of perpetuating the doctrine ( i . e ., tribal sovereignty )... This is evident when tribes take part in the nation ’ s commerce . Tribal enterprises now include ski resorts , gambling , and sales of cigarettes to non-Indians ... In this economic context , immunity can harm those who are unaware that they are dealing with a tribe .”
In Lewis v . Clark ( 2017 ), the Lewises were traveling on I-95 in Connecticut south towards New York City , and were struck in the rear by Clark , an employee of a tribal gaming authority . The Supreme Court held : “ in a suit brought against a tribal employee in his individual capacity , the employee , not the tribe , is the real party in interest and the tribe ’ s sovereign immunity is not implicated . That an employee was acting within the scope of his employment at the time the tort was committed is not , on its own , sufficient to bar a suit against that employee on the basis of tribal sovereign immunity .”
While the Lewis case does not represent a significant diminishment of the doctrine of tribal sovereign immunity , another case might develop into more dangerous limitations . Accordingly , the question arises , should Indian tribes now act to forestall , to the extent possible , such “ common law ” activism by the Supreme Court vis-à-vis tribal sovereign immunity ?
The challenge to tribal sovereign immunity may also be an opportunity . State and local governments have undertaken risk management programs and established risk pools to spread the cost of insuring against third-party tort claims over a period of years and even among small governments . At least 33 states ’ acts limit , or “ cap ,” the monetary amount for damages that may be recovered from judgments against the state , and at least 29 states ( often in combination with a cap ) prohibit a judgment against the state from including punitive or exemplary damages .
The Federal Tort Claims Act has been extended to cover Indian tribes and tribal employees in some circumstances under Public Law 93-638 contracts . Yet , in the commercial context , there is little statutory limit on the exposure of tribal sovereign immunity .
As Indian nations , we have always been forward-looking , whether it was land , environmental , or resource protection . Indian Country is not about to let the Supreme Court drag us back to the days when the federal government told us what was best for our communities . Now is the time to be proactive and search for a common ground to protect tribal sovereignty .
Operating risk pools provides an avenue for tribes to pool their economic interests to better manage insurance costs , identify risks early and cooperate on risk management . If tribes can evaluate the intertribal risk pool approach as a model , federal legislation might be sought to limit tribal government exposure by affirming an elective tribal law system of limited waivers of sovereign immunity .
NIGA is committed to taking this sovereignty discussion to the next level of action , and made it a prime topic of interest at our annual trade show . Tribal leaders are eager to start the discussion of how to protect tribal sovereignty in the 21st century .
Ernie Stevens Jr . is chairman of the National Indian Gaming Association .