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This is the second in a series of articles on doing business with Native American Tribes in Nevada.  These articles provide an overview of the political and business structures employed by Indian tribes, as well as the advantages and challenges of doing business in Indian Country.

 

Tribal Status

A tribe which has obtained “federal recognition” is understood by the U.S. government to be a sovereign nation which may operate legally and politically as an independent entity.  The federal government is, in essence, recognizing that the tribe was a sovereign nation prior to the creation of the United States, and recognizes it as the same today.  Tribes without federal recognition have no legal relationship with the U.S. government, enjoy no protection from state jurisdiction or control, and have no sovereign immunity.[1]

Governmental Structure

A tribal constitution and/or code of laws governs the operations of tribal governments.  Most tribes utilize executive, legislative, and judicial branches of government.  The tribal chairperson or president acts as the executive branch of government.  The tribal council acts as the legislative body.  A separate tribal court system adjudicates most matters arising under tribal laws.

 

Sovereign Immunity

Native American tribes are sovereign nations which are “distinct, independent political communities, retaining their original natural rights” regarding local control and self-government.[2]  They remain a “separate people, with the power of regulating their internal and social relations”[3] and maintain the “right . . . to make their own laws and be ruled by them.”[4]  Indian Tribes have the power to constitute and regulate their own form of government,”[5] and “have the power to tax and legislate—including the power to make criminal and civil laws, not otherwise preempted by federal law, and to administer justice.”[6] Tribes have regulatory authority over all individuals on Indian land.[7] They may also tax and regulate within their borders.[8]

Like most modern governments, tribes cannot be sued without their consent.  Understanding tribal sovereign immunity is perhaps the single most important element of doing business on a reservation or with an Indian tribe or a tribal business.  A tribe’s sovereignty means that it cannot be sued except: 1) where the U.S. Congress has “unequivocally” authorized the suit; or 2) the tribe has clearly and unequivocally waived its immunity.[9]  The tribe’s immunity also extends in most cases to tribal officers who are acting in their official capacity,[10] as well as to tribal businesses both within and beyond the boundaries of the tribe’s reservation.[11]  The immunity also extends to tribal departments and agencies,[12] unincorporated tribal businesses,[13] and to entities acting as arms and instrumentalities of the tribes.[14]

 

 


 

[1] Cohen’s Handbook of Federal Indian Law § 3.02[3] (Nell Jessup Newton ed., 2005).

[2] Worcester v. Georgia, 31 U.S. 515 (1832).

[3] U.S. v. Kagama, 118 U.S. 375 (1886).

[4] Williams v. Lee, 358 U.S. 217, 220 (1959).

[5] Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).

[6] See, e.g., Fisher v. D. Ct., 424 U.S. 382, 386 (1976); Kerr–McGee Corp. v. Navajo Tribe, 471 U.S. 195, 198–200 (1985).

[7] Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134 (1980).

[8] Atkinson Trading Post v. Shirley, 532 U.S. 645 (2001).

[9] Kiowa Tribe v. Manufacturing Technologies, 523 U.S. 757 (1998); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).

[10] Fletcher v. United States, 116 F.3d 1315 (10th Cir. 1997).

[11] Michigan v. Bay Mills Indian Community, et al. 572 U.S. __, 134 S. Ct. 2024 (2014) (Sovereign immunity bars suits by States against Indian tribes.  Sovereign immunity extends to suits arising out of commercial activity occurring outside of a tribe’s Indian country).

[12] Fletcher v. United States, 116 F.3d 1315 (10th Cir. 1997).

[13] American Vantage Co., Inc. v. Table Mt. Rancheria, 292 F.3d 1091 (9th Cir. 2002).

[14] In Cash Advance & Preferred Cash Loans v. State, 242 P.3d 1099 (Co. 2010), the Colorado Supreme Court stated that “[a]lthough the U.S. Supreme Court has not addressed this issue, it has acknowledged that the United States has taken the position that corporate entities may be arms of the tribe entitled to the tribe’s sovereign immunity.” Id. at 1110 (citing Inyo County v. PaiuteShoshone Indians of Bishop Community of Bishop Colony, 538 U.S. 701, 705 n. 1 (2003)). “When the tribe establishes an entity to conduct certain activities, the entity is immune if it functions as an arm of the tribe.” Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006). “Tribal immunity extends to subdivisions of a tribe, and even bars suits arising from a tribe’s commercial activities.” Native American Distrib. v. Seneca–Cayuga Tobacco Co., 546 F.3d 1288, 1292 (10th Cir. 2008). Indeed, established law from the First, Sixth, Eighth, Ninth, and Tenth Circuits, along with various states, makes it clear that sovereign immunity is not limited to tribes themselves, but it also extends to entities that are owned by a tribe, established under tribal law, and operate as “arms of the tribe.” See, e.g., Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 29 (1st Cir. 2000); Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 920–21 (6th Cir. 2009); Hagen v. Sisseton–Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000); Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006); Native American Distrib., 546 F.3d at 1292; Cash Advance, 242 P.3d at 1107-08.

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on acting as an Arbitrator and Mediator.

Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.

 

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