tribal corporations

Chicago Law Review Note on Federal Diversity Jurisdiction and Tribal Corporations

Matthew L.M. Fletcher

Graham Safty, a University of Chicago Law School student, has published Federal Diversity Jurisdiction and American Indian Tribal Corporations in the University of Chicago Law Review.

Here is an excerpt:

This Comment examines how federal courts determine the state citizenship of tribal corporations when deciding whether they can exercise diversity jurisdiction. It is well established that the Indian tribe itself—the constitutional tribe—is a “stateless entity” that is never subject to federal diversity jurisdiction. A federal court cannot hear a case in which an Indian tribe is a party unless there is another basis for subject matter jurisdiction, such as federal question jurisdiction. The rules that pertain to tribal corporations, however, remain unsettled. Courts have not adopted a comprehensive or uniform approach to determining when, if ever, they can exercise diversity jurisdiction over cases involving tribal corporations. Yet the rule that a court selects can have a profound impact on the likelihood that a tribal corporation will be susceptible to diversity jurisdiction.

Interesting Quote from a CA4 Concurring Opinion re: Tribal Sovereignty and Tribal Corporations

Matthew L.M. Fletcher

Tribal corporations are still sovereigns, end of story. From United States v. Bly (concurring opinion)

It does point to the fact that, in addition to being a state agency, the University is a corporation under state law. This is true but irrelevant. The Supreme Court has never suggested that the state law designation of a sovereign entity as a corporation eliminates that entity’s status as a sovereign. Indeed, when a sovereign Indian Tribe and a corporation that was an “ ‘arm’ of the Tribe” sought to be recognized as “person[s]” under a federal statute, the Supreme Court denied this status to both the Tribe and corporation, without distinguishing the two, because both were sovereign entities. Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701, 704, 705 n. 1 (2003). Similarly, the Court has recognized that although “state officials literally are persons,” they are nonetheless presumed not to be included within the statutory term “person” when acting in their “official capacity” because in those circumstances they are “no different from … the State itself.” See Will v. Mich. Dept. of State Police, 491 U.S. 58, 64, 71 (1989).