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Chapter 7 - Tribal Sovereign Immunity and the Indian Civil Rights Act
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229 Tribal Sovereign Immunity and the Indian Civil Rights Act Indian tribes are unique political entities, and the relation between a tribe and the United States is “perhaps unlike that of any other two people in existence.”1 They are not foreign nations separate and apart from the United States; instead they are “domestic dependent nations”2 located within United States territory that have certain retained inherent powers of self-government.3 Consistent with this quasi-sovereign status, Indian tribes are not parties to the United States Constitution and derive no power or obligations directly from it4 despite being mentioned twice.5 Tribes thus are not subject to the limitations on governmental action contained in the Bill of Rights or the Fourteenth Amendment. This chapter examines two related features of the unique sovereign status of Indian tribes. First, an important incident of such status is a substantial measure of immunity from unconsented suit in any court. Although some members of the United States Supreme Court have questioned the doctrine’s propriety, immunity from suit remains an important manifestation of tribal sovereignty, particularly in view of the broad array of governmental and commercial activity in which tribes now engage.6 Second, in recognition Chapter 7 Tribal Sovereign Immunity and the Indian Civil Rights Act 229 1 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831). 2 Id.; see generally Chapter 1, part I.A. 3 See generally Chapter 5, part II. 4 E.g., Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 268–69 (1997); Blatchford v. Native Village of Noatak, 501 U.S. 775, 782 (1991). 5 U.S. Const. art. 1, § 2, cl. 3 (excluding “Indians not taxed” from the apportionment formula for congressional representation and taxation purposes); id. art. I, § 8, cl. 3 (Indian Commerce Clause); see generally 1 Francis Paul Prucha, The Great Father: The United States Government and the American Indians 50 (1984) (“the Constitution is meager indeed on the subject of Indians, and what does appear was not the product of long debate”); Robert N. Clinton, The Dormant Indian Commerce Clause, 27 Conn. L. Rev. 1055, 1147–55 (1995) (detailing the discussion of Indian affairs during the Constitutional Convention). The provision related to “Indians not taxed” became nugatory by virtue of the Fourteenth and Sixteenth Amendments’ adoption. Consequently, for modern purposes, the only relevant textual reference is to “Indian tribes” in the Indian Commerce Clause. 6 Kiowa Tribe v. Manufacturing Techs., Inc., 523 U.S. 751, 757–58 (1998); see also Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991) (Stevens, J., concurring) (characterizing tribal sovereign immunity as “founded upon an anachronistic fiction”). 230 American Indian Law Deskbook, Third Edition of the extra-constitutional quality of tribal sovereignty, Congress adopted the Indian Civil Rights Act of 19687 to provide many, but not all, of the individualright protections found in the Bill of Rights. This statute, while largely unenforceable in federal or state courts, constitutes a hallmark example of Congress’s exercising its authority over tribal affairs under the Indian Commerce Clause. I. SOVEREIGN IMMUNITY FROM SUIT A. Doctrinal Foundation: Fidelity & Guaranty Through Manufacturing Technologies A core element of tribal sovereignty is a common law immunity from suit against all but the federal government.8 The doctrine of sovereign immunity is commonly understood to relate to two different concepts: whether a sovereign is immune to suit in its own courts9 or in the courts of another sovereign,10 and whether it is subject to substantive law at all.11 For present purposes, only the first category of immunity is relevant, and as a general matter, only the question of tribal immunity from suit in courts other than those of the affected tribe is at issue. Claims of immunity in courts of another sovereign ordinarily depend upon the law of the forum jurisdiction.12 Federal common law, however, supplies a largely contrary rule where Indian tribes are involved. 7 Pub. L. No. 90-284, §§ 201–701, 82 Stat. 73, 77–81 (1968) (codified as amended at 25 U.S.C. §§ 1301–1303, 1321–1326, 1331, 1341). 8 EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1075 (9th Cir. 2001); Florida Paraplegic, Ass’n, Inc. v. Miccosukee Tribe, 166 F.3d 1126, 1135 n.21 (11th Cir. 1999); United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 382 (8th Cir. 1987); United States v. Yakima Tribal Court, 806 F.2d 853...