Tribal self-determination in the age of scarcity.

AuthorKunesh, Patrice H.


Tribal sovereignty and the jurisdictional counterpart of tribal sovereign immunity from suit are the bedrock principles of tribal self-determination. (1) The contours and qualities of these principles in contemporary federal Indian law jurisprudence, however, are elusive; a sign perhaps of the weighty re-evaluation underway in the United States Supreme Court of their fundamental premises. (2) As recently observed by a prominent Indian law scholar, "Indian rights are losing the limited protection they had as the Court forsakes foundation principles and expands the ambit of control over Indian tribes to include not just congressional but also judicial power to redefine and restrict tribal sovereignty." (3)

Thirteen years after President Nixon heralded in the new era of tribal self-determination, Congress passed the Indian Gaming Regulatory Act of 1988, a federal law unsurpassed in its transformation of Indian country except for the General Allotment Act of 1887. (4) Once fairly insular and inwardly looking, the immediate and tremendous success of gaming propelled many tribes into the world of high finance and political pandering. (5) It also engendered a profusion of tribal lawmaking and a dynamic exercise of tribal sovereignty both within and beyond the reservation. While these efforts are intended to strengthen the tribal government and improve the capacity for good governance and economic development, the extension of tribal sovereignty, particularly over activities of non-Indians, has attracted the attention of the Supreme Court, which has expressed serious concerns about the reach of tribal powers. According to Justice Stevens who is plainspoken in his misgivings about the continuing validity of tribal sovereign immunity in modern-day business transactions, "[t]here are reasons to doubt the wisdom of perpetuating [tribal immunity] ... beyond what is needed to safeguard tribal self-governance. This is evident when tribes take part in the Nation's commerce. (6) Justice Thomas similarly has harkened that "the time has come to reexamine the premise and logic of our tribal sovereignty cases...." (7) To be sure, these pronouncements foretell a new jurisprudential posture in the Supreme Court that is "veering away from any strong notion of retained inherent sovereignty." (8)

Today, tribes throughout the country stand at the intersection of two major political and economic forces, either of which possesses the intensity to relegate time-honored principles of tribal sovereignty to mere federally-ordained dictates. The first is the U.S. Supreme Court's inclination to reshape the contours of tribal sovereignty by abandoning a formalistic adherence to these foundational principles of federal Indian law for a more functional approach involving a complex balancing of state and tribal political interests, with the scale tipping more frequently in favor of the state's interests, or at least against the tribe's interests. (9) The second is the current global economic crisis and its repercussions on tribal economies. Many tribes already have suffered a backlash from the failing economy (10) and more tribal economies undoubtedly will be debilitated by severe pressures on the federal budget. Such scarcity of resources raises somber questions about the possible diminishment in federal responsiveness to tribal needs.

This article outlines some of the broad issues concerning tribal sovereignty at this juncture of unpredictable jurisprudential trends and our nation's economic predicament, both of which are fraught with untenable balancing tests and competing policy interests. Tribal sovereign immunity from suit, a vital element of tribal sovereignty, is most susceptible to judicial curtailment, especially when haphazardly deployed in circumstances where tribes compete in the national economic mainstream. The author's following comments and observations on this topic are premised on personal experience as in-house counsel to a successful gaming tribe whose rise to fame and fortune triggered wide-ranging law and policy development, which now has been tempered by the worldwide economic crisis. (11) The purpose here is to encourage a discourse about these issues, not to impart a particular opinion or conclusion. To begin this discussion, a brief sketch of evolving trends in tribal sovereignty will help illustrate the tensions in the law and policy.


Contemporary tribal sovereignty represents an evolution of three historical principles concerning tribal powers. (12) First, prior to colonial contact tribes possessed full and complete inherent authority, or, as described by Felix Cohen, the principal architect of the precepts of modern Federal Indian law, "all the inherent powers of any sovereign state." (13) Second, complete and unconditional tribal sovereignty was eroded through the baneful course of colonization. Redesignated as "domestic dependent nations," (14) tribes no longer possessed external political authority to make treaties with foreign nations, and their judicially modified guardian-ward relationship with the federal government (15) increasingly subjected tribes to the power of the federal government. This dependent status markedly figures in many recent U.S. Supreme Court decisions which further divest tribal powers particularly over nonmember activities occurring on non-Indian fee land within the reservation. (16) Third, Executive Branch treaties and congressional legislation co-extensively impose additional limits on tribal powers. (17)

Relying on these treaties and statutes, for nearly two centuries, courts of the United States have created an "intricate web of judicially made Indian law." (18) As "'distinct, independent political communities,' qualified to exercise many of the powers and prerogatives of self-government," (19) Indian tribes possess inherent rights over internal tribal affairs to make substantive laws governing their members and their territory. (20) While the sphere of inherent tribal authority over external matters has been substantially modified, tribes retain limited civil jurisdiction over non-Indians on their reservations in two specific areas: "consensual relationships with the tribe or its members [and] commercial dealings, contracts, leases, or other arrangements;" and conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." (21)

One of the most salient attributes of a sovereign is its immunity from legal and judicial proceedings without its consent. (22) As defined by one noted scholar and Indian law practitioner, "[s]overeign immunity is an expression of the lawmaking power of government and reflects judgments concerning how public resources should be distributed." (23) As sovereign entities with retained powers of self-governance, (24) "Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers." (25) The U.S. Supreme Court has adhered steadfastly to the rule that tribes are immune from suit absent an express authorization from Congress or a clear waiver from the tribe, (26) thus permitting tribes "to preserve [their] autonomous political existence ... [and] tribal assets." (27)

This immunity extends to the tribe's commercial activities, not solely to its governmental functions, whether conducted on or off the reservation. (28) When a tribe establishes an entity to conduct certain activities, such as housing authorities, health agencies, educational institutions, cultural centers, and corporate gaming operations, the entity is immune from suit if it functions as an arm of the tribal government. (29) The entity's immunity from suit does not depend on its business-orientated revenue-making status, a factor deemed irrelevant in Kiowa, but rather on its relationship to the tribe. (30) An entity established and controlled by the tribe and whose economic and other benefits support the tribe functions as an arm of the tribe and enjoys the tribe's immunity from suit. (31) Whether a tribal subordinate enterprise is entitled to the tribe's immunity depends upon a number of non-exhaustive factors. These include: (1) whether the enterprise performs a commercial (i.e., proprietary) or traditional governmental function; (2) whether it is for-profit or nonprofit and generates its own revenue; (3) the enterprise's financial relationship with the tribe, including where the enterprise's revenues go and how they are used; (4) whether a suit against the enterprise will jeopardize tribal assets; (5) whether the enterprise has insurance to protect the tribal fiscal resources; and (6) who controls the enterprise's activities. (32) Despite policy arguments challenging the fairness of corporate immunity of casinos competing in the economic mainstream, (33) the U.S. Supreme Court continues to recognize tribal immunity in the commercial context, (34) leaving to Congress and tribes any adjustment to the parameters of the tribal immunity doctrine. (35)

In many cases the rules of sovereign immunity can be difficult to discern because sovereign entities necessarily must act through individual officers and agents. Generally, when the sovereign entity is the "real, substantial party in interest, [it] is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants." (36) Likewise, tribal immunity cannot be circumvented merely by naming officers or employees of the tribe as defendants. Tribal sovereign immunity "extends to tribal officials when acting within the scope of their authority."...

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