Fletcher on Current Tribal Immunity Issues (Law360.com)


Law360, New York (October 14, 2016, 1:32 PM EDT) — Two years ago, in Michigan v. Bay Mills Indian Community, the U.S. Supreme Court roundly affirmed the doctrine of tribal sovereign immunity, but did so grudgingly. The court warned against tribes abusing their sovereign status, especially in commercial ventures. The lower courts now are addressing tribal immunity in contexts as diverse as tribal sovereign lending and eminent domain exercised by utility companies. Pending before the Tenth Circuit is Public Service Company of New Mexico v. Barboan, where a utility is attempting to exercise the power of eminent domain over lands owned by an Indian tribe. And, this Term, the Supreme Court in Lewis v. Clarke will determine the scope of immunity for tribal employees. The outcomes in these cases, potentially circumventing tribal immunity, may expose tribal governments to extensive liability, reduced commercial opportunities, and worsened environments.

The federal government has authority to abrogate tribal immunity but the judiciary imposes a clear statement rule on statutes purported to waive immunity. As the Supreme Court stated in Bay Mills, Congressional intent to abrogate tribal immunity must be unequivocal. In Barboan, the utility is relying on 25 U.S.C. § 357 for statutory authority to condemn Indian lands. The statute does authorize the condemnation of Indian lands, with compensation to “allottee[s].” The Tenth Circuit may decide whether that statute is a clear statement of intent to authorize the condemnation of lands owned by allottees that are Indian tribes otherwise cloaked with immunity. If the court holds § 357 abrogates tribal immunity, then tribal efforts to stop or slow pipeline projects like the Dakota Access Pipeline could be compromised. Lower courts likely will conceive of this case as within the call of the question in Bay Mills and uphold the tribal defense here. But as always, the Supreme Court looms.

That the Supreme Court is very interested in the contours of tribal immunity is confirmed by the consistency with which the court has granted certiorari in those cases. Coming a mere two years after Bay Mills, the Court will hear another immunity matter arising from tribal commercial activities. In Lewis, the Court will decide whether tort and contract claimants can access tribal assets under a theory that tribal employees could be liable in tort if sued in their individual capacities, placing tribes in an unenviable position requiring them to indemnify money damage claims against employees.

Because Indian tribes usually have no tax base, the federal government long has encouraged tribes to utilize their sovereign status in commercial ventures to generate government revenue. In line with federal Indian policy, tribes have established gaming operations, asserted control over reservation natural resources, and established online commercial enterprises. Meanwhile, tribes established justice systems to address tort and contract claims arising from tribal enterprise. Tribal statutes established limited waivers of tribal immunity tailored to tribal courts analogous to the Federal Tort Claims Act and the federal Contract Disputes Act. Tribes have settled or litigated untold thousands of claims under these tribal laws since the 1990s.

Still, tribes find themselves hailed into state and federal courts to defend tort and contract claims for money damages. Nearly all of these claims are dismissed for lack of jurisdiction, either because of state or federal court subject matter jurisdiction or sovereign immunity. The tougher cases are those that arise off-reservation. The Supreme Court has held more than once that tribes retain immunity in federal and state courts even when engaged in off-reservation commercial ventures. Tort victims complain that tribal limitations periods are too short, that tribal damages caps are too low, and that tribal courts are unfamiliar and perhaps even biased forums. Worse, some consumers of tribal sovereign lending products allege that tribal dispute resolution forums are wholly inadequate or even shams.

In recent years, tort victims cleverly have sued tribal employees in their individual capacities in state or federal courts, seeking to avoid tribal immunity. Some courts rejected this theory, but others held that tribal emergency medical technicians and casino managers may be sued for money damages in their individual capacities. Perhaps it is only a matter of time before tribal sovereign lending employees are sued in their individual capacities. Individuals are not sovereigns, and are not immune from suit. However, sovereigns cannot act without individuals. Normally, when a government employee is on the clock, they are government officials cloaked with immunity from money damages, not individuals. Everyone knows that a pragmatic tribal government will be forced to indemnify their employees, opening up the tribal fisc to potentially expansive liability.

Decisions against tribal immunity in the context of Indian lands and in the context of tribal employees could expose Indian tribes to land dispossession and monetary liability far beyond what tribes have come to expect in recent decades. With an eight-judge Court, getting to five votes is tricky. However, it is very possible that progressive judges skeptical of governmental immunity might vote against tribal interests alongside conservative justices skeptical of tribal sovereignty. Tribal interests could very well face a perfect storm aligned against them.

—By Matthew L.M. Fletcher, Michigan State University College of Law

Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law. Fletcher is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Oklahoma v. Hobia Cert Stage Briefing Complete


Petition for a Writ of Certiorari

Hobia Cert Opp

Oklahoma Reply

Lower court materials here.

Hobia Cert Opposition Brief


Hobia Cert Opp

Cert petition here.

Oklahoma v. Hobia Cert Petition


Petition for a Writ of Certiorari (as filed)

Question presented:

Does Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024 (2014), require the dismissal of a State’s suit to prevent tribal officers from conducting gaming that would be unlawful under the Indian Gaming Regulatory Act and a state-tribal compact when

• the suit for declaratory and injunctive relief has been brought against tribal officials – not the tribe;
• the gaming will occur in Indian country, on the land of another tribe; and

• the state-tribal compact’s arbitration provision does not require arbitration before filing suit?

Lower court materials here.

Sault Tribe Motion to Dismiss Michigan Gaming Suit

Here are the new materials in the case captioned State of Michigan v. Payment (W.D. Mich.):

2015-03-20 Brief in Support of Defendant’s Motion to Dismiss Amended Complaint

2015-03-20 Defendant’s Motion to Dismiss Amended Complaint

71 Michigan Response to Motion to Dismiss

72 Sault Tribe Reply

The state’s amended complaint is here.

State of Michigan Sues Sault Tribe Officials–Amended Complaint with Exhibits

Amended Complaint

2Exhibit A (Letter from DOI)

Exhibit B (letter from Gov. Snyder to Chairman Eitrem)

Exhibit C (Sault Tribe Submission for Mandatory Fee-to-Trust Acquisition)

Exhibit D (Same, for the Sibley Parcel)

Exhibit E (Sault Tribe approval of development agreement with Lansing, MI)

Exhibit F (Comprehensive Development Agreement between Sault Tribe and Lansing)

Previous coverage of the Lansing casino case here.

New Volume of North Dakota Law Review Features Three Indian Law Papers


90 N.D. L. Rev. 13
A Possible Solution to the Problem of Diminishing Tribal Sovereignty
– Hope Babcock 


The capacity of Indian tribal sovereignty to protect tribes from outside encroachment and interference has steadily diminished from when the concept was first enunciated in the nineteenth century in the Marshall Indian Law Trilogy. This article assumes as a working premise that only bringing tribes into the Constitution as co-equal sovereigns will end the attrition. The article examines how this might happen, either through creative interpretation of existing constitutional text or by amending the Constitution. Each of these proposals is examined to see if it empowers tribes to manage their futures more effectively, is capacious enough to include the vast majority of tribes, maintains the union’s security and stability, and has political salience. The article concludes that only the creation of a virtual nationwide election district for all members of a tribe to elect tribal representatives to Congress will meet these criteria. The author concedes that the approach is novel, but hopes it is sufficiently viable to warrant further consideration by others.

90 N.D. L. Rev. 121
In Defense of Tribal Sovereign Immunity: A Pragmatic Look at the Doctrine as a Tool for Strengthening Tribal Courts
– Ryan Seelau


Although the doctrine of tribal sovereign immunity was recently upheld by the Supreme Court in Michigan v. Bay Mills Indian Community,1 its existence continues to be attacked as “antiquated” and leading to “unfair” results. While most defenses of tribal sovereign immunity focus on how the doctrine is a necessary part of sovereignty or how the doctrine is necessary for financial reasons, the more pragmatic benefits of tribal sovereign immunity have remained largely overlooked. Any desire to take tribal self-determination seriously and to allow Native nations to produce their own robust and capable governing systems means re-examining the role tribal sovereign immunity plays in such efforts. This article conducts such a re-examination. First, it takes note of the extensive research indicating that strong tribal courts are generally necessary for healthy and resilient Native nations. Second, it looks at the six components that comprise strong tribal courts: (1) accountability; (2) capacity; (3) funding; (4) independence; (5) jurisdiction; and (6) legitimacy. Finally, it argues that the strategic use of tribal sovereign immunity has positive effects on all six components of strong tribal court systems. In essence, tribal sovereign immunity is a valuable tool that Native nations can use to strengthen their own courts, institutions, and nations themselves.

90 N.D. L. Rev. 191
Native Americans – Sovereign Immunity: Determining Whether the Indian Gaming Regulatory Act Abrogates Tribal Sovereign Immunity for Lawsuits Arising Outside of Indian Country
Michigan v. Bay Mills Indian Cmty, 134 S.Ct. 2024

– Mitchell G. Enright 


In Michigan v. Bay Mills Indian Community, the United States Supreme Court held that the Indian Gaming Regulatory Act (“IGRA”) did not implicitly or explicitly abrogate the common law doctrine of tribal sovereign immunity so as to allow a state to file a federal suit against an Indian tribe for illegal gambling activity taking place outside of Indian country. The Court reasoned that neither the text nor the legislative history of IGRA indicated a desire on the part of Congress to abrogate tribal immunity to allow for such suits; the fact that IGRA specifically addresses activities occurring inside of Indian country was dispositive to the Court that Congress chose to leave traditional state-law remedies in place when illegal gaming activity occurs outside of Indian country. The Court was also unwilling to overrule its previous decision of Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., which expanded the doctrine of tribal sovereign immunity to cover suits arising from contracting disputes with non-Indian businesses off-reservation. The Court’s holding in Bay Mills clarifies the doctrine of tribal sovereign immunity within the controversial context of Indian gaming. However, this will not result in any expansion of Indian gaming beyond Indian country. On the contrary, the Court’s decision makes clear that states will continue to have a number of remedies available to them to prevent Indian gaming off-reservation, just not the sort of federal suit at issue in this case.

Who Won Indian Law and Policy 2014? First Round Bracket — 8 of 8

Last one for the day!

Still on category 4, groups.

# 2 Tribal Supreme Court Project

They’ve need a win, and Bay Mills was a biggie! While they were unable to persuade SCOTUS not to take the case in the first (even the SG failed there), and they were unable to persuade the tribe not to bring this case in the first place, but that said, they did help tribal interests avoid problems in a lot of other cases (here, here, here, here, and here). Actually, I have no idea if they helped or not but we’ll give them some credit anyway.


# 15 Tribal Law and Policy Institute

Always been a big fan of Jerry Gardner and his crew. One of the funniest men around. Did amazing work on the Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence Report this year.

#7 Native American Bar Association

NABA will be releasing a report arising out of a survey that over 500 Indian lawyers completed this year, so maybe this posting is a year early.


#10 Tribal In-House Counsel Association

New organization that has the potential to revolutionize the practice of law in Indian country. I’m hoping that TICA members will be able to cut through a lot of this in the coming generation.

#3 Authors of law review articles on Adoptive Couple v. Baby Girl

Yes, there’s a lot, lot, lot of these out there. Some are brilliant and inspiring, some are, well, kinda scary.


#14 Authors of law review articles on Michigan v. Bay Mills Indian Community

Not as many, and most are less scary. Here, here, here, here. Some are just weird.

# 6 Carcieri challengers

The people, groups, tribes, and states and state subdivisions that want to use a poorly-reasoned Supreme Court decision to stop Indian gaming at all costs are legion. Samples here, here, here, here, here, here, and elsewhere (just type Carcieri into TT’s search engine). Interior has opined about it here.


# 11 Tribal sovereign lenders


Tenth Circuit Issues Amended Opinion in Oklahoma v. Hobia

Here. Like its earlier decision, today’s amended opinion concludes that the district court erroneously granted the State’s request for a preliminary injunction and held that the State’s complaint, which alleged class III gaming activities on non-Indian lands, failed to state a claim under IGRA.

The Tenth Circuit also reiterated that arbitration provisions in the state’s gaming compact effectively barred Oklahoma from suing tribal officials in federal court for purported violations of the compact. The court remanded the matter to the Northern District of Oklahoma with instructions to vacate the preliminary injunction and to dismiss Oklahoma’s complaint with prejudice.

Also, the court denied the petition for en banc review.

Panel materials are here.