Katherine Florey has published her paper (workshopped at MSU!), “Indian Country’s Borders: Territoriality, Immunity, and the Construction of Tribal Sovereignty,” in the Boston College Law Review.
Here is the abstract:
This Article explores the consequences of an anomaly in the Supreme Court’s Indian law jurisprudence. In the past few decades, the Court has sharply limited the regulatory powers of tribal governments and the jurisdiction of tribal courts while leaving intact the sovereign immunity that tribes have traditionally enjoyed. The result has been that tribes can avoid the effects of otherwise-applicable state and federal law, while at the same time they lack any affirmative powers to regulate events within their territory. This Article argues that this state of affairs is untenable. This Article first suggests that for tribes to exist as effective governments, their sovereign authority must have a territorial component. The Article then discusses the undesirable consequences of tribal sovereign immunity, including a lack of government accountability, increased uncertainty about the law’s reach, and inadequate compensation for tort victims. Ultimately, this Article concludes that, although it may be tempting for tribal advocates to embrace tribal sovereign immunity when the Supreme Court seems disinclined to preserve other elements of tribal sovereignty, relying on immunity as the cornerstone of sovereignty would be a mistake. Instead, tribes should take steps to strengthen the territorial component of their sovereign status.
The abstract looks interesting, though I am wary of arguments continuing to perpetuate the Supreme Court’s gross misrepresentation that tribal sovereign immunity developed “by accident.” Of course, the Court’s first tribal immunity cases a hundred years ago were strange manifestations of the guardian-ward relationship — an “accident” of Indian law jurisprudence to be sure. Regardless of whether the Court or the Constitution says so (actually, the Constitution does say so), Indian tribes are sovereigns, and like all sovereigns in American law, they are entitled to immunity from suit.
And, while I am in agreement with the general principles of the article (who could not be?), I find the suggestions a bit naive and maybe a bit patronizing. Naive because Indian tribes are already doing the things Prof. Florey suggests (in many cases for decades) and much, much more to reinforce reservation territoriality (I’m sure we’ll see a great deal more soon in Seneca, for example, when the State of New York comes to enforce cigarette taxation rules). Patronizing because more signage on reservation borders (introduced as a reaction to cases like Montana) has not been persuasive to federal courts, nor has the emphasis on the retention of Indian languages (though maybe if cert petitions were written in both languages, there would be an impact).
Finally, while there is no doubt that some tribes in certain circumstances have hidden behind immunity to avoid liability for nasty actions, those instances are increasingly rare. The reality is that Indian tribes — as governments and as business — have no choice (either because of federal law or the demands of lenders and voting constituents) but to carry insurance and defend these claims. The more sophisticated tribes have already waived their immunity in tribal court for tort and contract claims. I hope this is not yet another law review article lecturing Indian tribes on sovereign immunity and asking federal and state courts to limit it or do away with altogether.
Turtle Talk 
Professor Fletcher,
Thanks very much for the link to my article and for your comments on it. I wanted to emphasize that, while I have some reservations about tribal immunity, I do not argue that it should be scaled back or that, in the vast majority of cases, tribes are using it manipulatively. Indeed, my paper argues explicitly against any new judicial or congressional limitations on tribal immunity. I do, however, intend for the paper to reflect the problematic position occupied by those of us who criticize sovereign immunity in general yet recognize the necessity of a tribal immunity doctrine. Sovereign immunity doctrine as it currently exists in American law is in some ways an artifact of the Rehnquist Court’s pro-federalism agenda – and one, I’d argue, whose connection to historical notions of sovereignty is oversold. I’ve argued elsewhere that federal, foreign-nation, and particularly state sovereign immunity should be interpreted more narrowly than they have been. Is tribal immunity different from these other immunities in important ways? Of course. Is it nonetheless susceptible to at least a few of the criticisms that have been leveled at sovereign immunity doctrine more generally? I’d argue that the answer is yes.
As for my (brief) discussion of border signs, I acknowledge that it’s open to the charge of being a bit naïve. Of course dual-language signs or border markers will not accomplish much in themselves (though I confess that I do like your idea about cert petitions!). At the same time, visual reminders of tribal borders can only be helpful – however modestly so – in making the argument that tribal territorial limits should be accorded more weight by U.S. courts. As you point out, many tribes are already aware of this.
Again, thanks very much for the response, and I hope you’ll give the article a further look when you get a chance.
I can’t strongly disagree with any of your points, and I don’t think I do in my earlier comments. My point largely is that the article largely doesn’t do as much as I would like to acknowledge what Indian tribes actually are doing right now, as opposed to the 1970s or even the 1990s. For example, Bob Miller and David Haddock and others have written about how tribes are waiving immunity for business purposes and have been doing so for decades. Tribal courts are available at more than 300 tribes to handle claims against local tribes. Several Michigan tribes established new, de facto borders for tax purposes in relation to a major tax agreement with the State of Michigan in 2003, and other intergovernmental agreements have done the same all around the country. More and more is happening every day. Frankly, at this point, immunity often is just a bargaining point and gives tribes some leverage against states and lenders they otherwise would never have. I am wary of work like this because it tends to characterize immunity in a light that is no longer relevant for most tribes (I say “most” hopefully). Of course, we all do this in Indian law and I am no less guilty than anyone (but I’m trying).
Another nit, since you note the link between the federalism “revolution” and immunity jurisprudence. I always teach my classes (esp. on the Kiowa Tribe case) but asserting that the SCT perhaps accepted tribal immunity in order to avoid undermining its state/federal immunity jurisprudence. But the Court never seems to mind treating tribes differently in other contexts, and so even as I say it, I don’t buy it anymore. My current theory is that the tribal interests won in Kiowa Tribe because they appear to have been taken (kinda) by a really bad investor and was trying to back out. Conversely, the tribe in 2001’s C&L case appeared to the Court to use immunity in order to pull one over on their business partners.
You accept I suppose that tribal immunity is different from federal and state immunity, but the paper doesn’t recognize the reality of how immunity sometimes really is the difference between a viable tribal government (with lower middle class tribal members) and a broke tribal government (with desperately poor tribal members). Consider the cert petition pending before the Court right now in the Sandia casino jackpot case. But for immunity from the spurious/frivolous claim of a jackpot against the casino, there could be real trouble for the viability of that tribe. That would never be true for a state or the feds (again, I say “never” hopefully).
And tribal immunity differs from foreign immunity because no American court could order a foreign nation to pay out a major judgment if that government declined to store its assets in the U.S. Tribes don’t have such an option. Federal courts can and do order around Indian tribes and tribal courts. It’s a short history between now and the past when the SCT held explicitly that all Indian property actually belongs to the federal government.
Don’t get me wrong, though — this is a solid paper, and I wouldn’t post it on the blog it it weren’t something worth recommending. And I really enjoy your other Indian law papers. Sorry I missed you at MSU — I was out of town. Best regards.
Mr. Fletcher’s comment: “Finally, while there is no doubt that some tribes in certain circumstances have hidden behind immunity to avoid liability for nasty actions, those instances are increasingly rare. The reality is that Indian tribes — as governments and as business — have no choice (either because of federal law or the demands of lenders and voting constituents).”
As to hiding behind immunity to avoid liability for nasty actions, the egregious actions by tribal governments may be increasingly rare but the more subtle actions may be on the rise. What happens in those situations where tribal executive boards are unresponsive to voting constituents? when midline, a history has been established within those same constituents diminishing their awareness of their collective powers. Remember 1973 Wounded Knee Action that was spurred by the unresponsive tribal executive board through the leadership of Dicky Wilson?
Does the Sarbane Oxley Act apply to official tribal government official actions? If not then what other federal laws may apply (it appears the Major Crimes Act isn’t applicable to White Collar crimes)?