Two types of laws govern Native Americans in the United States. The first is a combination of U.S. Federal and State laws that all U.S. residents are subject to. The second is Indian law, which applies only to Native American tribal groups. The interaction between U.S. law and Indian tribal law produces a unique legal and business environment for Native Americans.
What is Tribal Sovereignty?
Tribal sovereignty reflects the concept that Indian tribes are distinct, independent political communities, retaining their original natural rights in matters of local self-government. Although no longer completely sovereign, Indian tribes remain a separate people, with the power of regulating their internal and social relations. For all practical purposes, Indians possess the right to make their own laws and be ruled by them.
To perform government responsibilities, Indian tribes have their own:
- Legislatures (tribal council)
- Courts (tribal courts)
- Governors (tribal chairman)
Suing an Indian Tribe
Like other sovereign governments, tribes enjoy common law sovereign immunity and cannot be sued. Indian tribes are subject to suit only where Congress has unequivocally authorized the suit or the tribe has clearly waived its immunity. There is a strong presumption against waiver of tribal sovereign immunity.
The doctrine of sovereign immunity shields Indian tribes from:
- Monetary damages
- Declaratory relief (enforcement of contract rights)
- Injunctive relief
Tribal government officials who act beyond the scope of their authority are not immune from claims for damages.
Can a Non-Indian be Sued in Tribal Court?
In most cases, a tribal court can only assert jurisdiction over a claim against a non-Indian person or entity when necessary to protect tribal self-government or to control internal relations. Consequently, tribal courts only have jurisdiction over the reservation activities of non-Indian parties who enter consensual relationships with the tribe through commercial dealings, contracts, leases, or other arrangements. Absent a contractual relationship with the tribe, non-Indian parties can only be sued in state or federal court.
Do I Need an Attorney Specializing in Indian or Native American Law?
Because of the unique circumstances of tribal sovereign immunity, an experienced Indian law attorney is essential for any case involving the Indian tribes. It is also wise to consult with an Indian law attorney before entering any business arrangement with the Indian tribes. Depending on the transaction, the contract rights of the respective parties may be limited. Speaking with the proper lawyer will inform you of your rights as well as preserve any possible legal remedies you may have.