To Sue and Be Sued: Capacity and Immunity of American Indian Nations

• Publication year: 2022

51 Creighton L. Rev. 391. TO SUE AND BE SUED: CAPACITY AND IMMUNITY OF AMERICAN INDIAN NATIONS

TO SUE AND BE SUED: CAPACITY AND IMMUNITY OF AMERICAN INDIAN NATIONS

RICHARD B. COLLINS(fn*)

ABSTRACT:

Can American Indian nations sue and be sued in federal and state courts? Specific issues are whether tribes have corporate capacity to sue, whether a Native group has recognized status as a tribe, and whether and to what extent tribes and their officers have governmental immunity from suit. Tribal capacity to sue is now well established, and federal law has well-defined procedures and rules for tribal recognition. But tribal sovereign immunity is actively disputed.

This Article reviews retained tribal sovereignty in general and summarizes past contests over tribal capacity to sue and their resolution into today's settled rule. Next is a concise statement of the law on federal recognition of tribal entities. Most of the Article explains and analyzes ongoing issues about tribal immunity from suit. Tribal immunity has been continuously recognized from the first reported decision, but tribes' commercial activities, modern attacks on immunity generally, and states-rights proclivities of some justices jeopardize its existence. Much active litigation involves suits against tribal officers and possible application of the Ex parte Young doctrine. For many reasons, tribes are adopting carefully defined consents to suit, particularly in relation to tribal casinos. This Article's essential purpose is to give tribes and their lawyers a full account of the law on tribal immunity and current disputes about it.

I. INTRODUCTION

Can American Indian nations sue and be sued in federal and state courts? The question is interwoven with tribes' sovereign status, which has been contested from earliest legal disputes. Subsidiary issues are whether tribes have corporate capacity to sue, whether a Native group has recognized status as a tribe, and whether and to what extent tribes and their officers have governmental immunity from suit. Capacity to sue is now well established, and federal law has well-defined procedures and rules for tribal recognition.(fn1) But tribal sovereign immunity is actively disputed.

This Article first reviews retained tribal sovereignty in general. It then summarizes past contests over tribal capacity to sue and their resolution into today's settled rule. Next is a concise statement of the law on federal recognition of tribal entities. Most of the Article explains and analyzes ongoing issues about tribal immunity from suit. These are often defined by their frequent appearance in relation to tribal casinos.

II. SOVEREIGNTY

What entities other than natural persons can sue and be sued in Anglo-American courts? Private organizations acquire capacity to sue from positive law, most commonly by incorporation,(fn2) and the limited immunities available to private defendants must also be found in affirmative rules.(fn3) But corporate capacity of sovereign entities is inherent,(fn4) and American law has treated sovereign immunity as received law.(fn5) For these reasons, tribes' standing in federal and state courts has often depended on their status as governments.(fn6)

British and American governments elected to respect Native sovereignty by denominating their agreements with tribes as treaties.(fn7) However, tribal sovereignty would not likely have survived Jackso-nian politics absent the United State Supreme Court's 1831-32 Cherokee decisions.(fn8) The first of these, Cherokee Nation v. Georgia,(fn9) directly contested the issue. Chief Justice Marshall's opinion of the Court concluded:

Is the Cherokee nation a foreign state in the sense in which that term is used in the constitution? . . . So much of the argument as was intended to prove the character of the Cherokees as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has, in the opinion of a majority of the judges, been completely successful. They have been uniformly treated as a state from the settlement of our country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war, of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our government plainly recognize the Cherokee nation as a state, and the courts are bound by those acts.(fn10)

The point was strongly restated in the Court's opinion (for a six-to-one majority) in Worcester v. Georgia:(fn11) "The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights . . . ."(fn12)

After the Cherokee decisions, tribal sovereignty was suppressed by government policy for many years but revived in modern times.(fn13) It is firmly entrenched for authority over tribal members, but the Supreme Court has severely restricted tribal authority over nonmembers.(fn14) However, this limit has no bearing on the issues perused in this Article.

III. CAPACITY TO SUE(fn15)

Since the founding, no reported federal decision has dismissed a suit by an American Indian tribe for lack of capacity to sue.(fn16) The only reported dismissals were in courts of a single state, New York.(fn17) However, the political posture adopted by influential persons and organizations in the late nineteenth century and the prestige of New York decisions created doubt about the issue for many years. The New York opinions simply asserted lack of capacity, apparently equating tribes with private, unincorporated associations but without analyzing the question.(fn18) The political forces, led by Harvard Law Professor James Bradley Thayer, claimed that tribes and their members had no legal rights, so their federal relationship must be ended.(fn19) Lack of capacity to sue was a necessary part of the claim. Two legal theories were asserted. One was that the Cherokee Nation v. Georgia(fn20) decision had been based on lack of capacity.(fn21) The other was that tribes were wards of the federal government who had no independent juristic capacity, so the United States could sue to vindicate tribal rights, but tribes could not do so on their own.(fn22) Both claims were part of noisy and determined political support for forced assimilation of Indian people, which dominated federal policy from the 1850s until the late 1920s.(fn23)

The political clamor and the New York decisions led to hornbook statements that tribes lacked capacity to sue.(fn24) And a United States Court of Claims judge agreed in a complex ruling about service of process.(fn25) However, the theory was trounced when a tribe sued the Secretary of the Interior to protect its land, and government lawyers (representing tribes' purported trustee) moved to dismiss for lack of capacity.(fn26) A unanimous Supreme Court categorically rejected the claim:

The case of [Cherokee Nation], on which the [federal] defendants place some reliance, is not in point. The question there was not whether the Cherokee tribe had the requisite capacity to sue in a court of general jurisdiction, but whether it was a "foreign state" in the sense of the judiciary article of the Constitution and therefore entitled to maintain an original suit in this court against the State of Georgia. The court held that the tribe, although uniformly treated as a distinct political society capable of engaging in treaty stipulations, was not a "foreign state" in the sense intended, and so could not maintain such a suit.

The defendants assert with much earnestness that the Indians of this pueblo are wards of the United States-recognized as such by the legislative and executive departments and that in consequence the disposal of their lands is not within their own control, but subject to such regulations as Congress may prescribe for their benefit and protection. Assuming, without so deciding, that this is all true, we think it has no real bearing on the point we are considering. Certainly it would not justify the defendants in treating the lands of these Indians-to which, according to the bill, they have a complete and perfect title-as public lands of the United States and disposing of the same under the public land laws.

That would not be an exercise of guardianship, but an act of confiscation. Besides, the Indians are not here seeking to establish any power or capacity in themselves to dispose of the lands, but only to prevent a threatened disposal by administrative officers in disregard of their full ownership. Of their capacity to maintain such a suit we entertain no doubt. The existing wardship is not an obstacle, as is shown by repeated decisions of this court, of which Lone Wolf v. Hitchcock, 187 U.S. 553, is an illustration.(fn27)

Despite that holding, there was continuing doubt about the issue within the legal profession. The compilers of the original (1941) edition of Felix Cohen's Handbook of Federal Indian Law stated that the issue was uncertain.(fn28) However, legal events after that date either assumed or sustained tribal capacity. In 1946, Congress gave tribes the same general right to sue the United States for damages as other claimants.(fn29) In 1966 Congress provided original jurisdiction in federal district courts of federal question...