The Need to Protect Tribal Sovereign Immunity Sovereign (or governmental) immunity provides federal, state, local, and tribal governments with a legal defense from lawsuits absent consent of the government being sued. The legal doctrine was established to shield governmental revenues from potentially limitless liability and lawsuits, which could threaten essential government services and programs. Tribal sovereign immunity is a foundational aspect of tribal government sovereignty. The Supreme Court in Michigan v. Bay Mills Indian Community (2014), reaffirmed the importance of tribal sovereign immunity, citing long-standing Supreme Court precedents: “Among the core aspects of sovereignty that tribes possess—subject, again, to congressional action—is the 'common-law immunity from suit traditionally enjoyed by sovereign powers.' That immunity, we have explained, is 'a necessary corollary to Indian sovereignty and self- governance.…’ Thus, we have time and again treated the 'doctrine of tribal immunity [as] settled law' and dismissed any suit against a tribe absent congressional authorization (or a waiver). (citations omitted). Tribes face the same basic obligations to their citizens as state, local and other governments. Tribes work to maintain public safety; provide for the health, education, and general welfare of their citizens and residents; and establish and maintain public infrastructure for water, transportation, communications, and economic development. As a result, sovereign immunity remains a critical legal doctrine to protect tribal governments from unending lawsuits that would cripple their ability to provide essential governmental services and functions to their citizens. While tribal sovereign immunity is acknowledged as a core aspect of tribal sovereignty and a key to the self-sustaining tribal government economies, the doctrine is under growing threat in the federal and state courts, and by some in Congress. Despite the Supreme Court’s adherence to precedent and repeated decisions upholding tribal immunity, the Court has indicated that it may consider exceptions to tribal sovereign immunity. For example, the Court in Lewis v. Clarke (2017), upheld tribal sovereign immunity, but offered an end-run by holding that a tribal employee can be sued in his or her individual capacity even when a tribal government has agreed to indemnify its employee for damages. A growing number of federal and state cases have been filed challenging tribal sovereign immunity for torts, patent actions, and claims involving tribal government-owned businesses. In the face of these challenges, Indian Country is uniting to protect and reaffirm tribal sovereign immunity. The National Indian Gaming Association, our Member Tribes, and sister tribal organizations urged Congress to examine these increased attacks on the doctrine, reaffirm the continued need for tribal sovereign immunity to protect tribal government revenues and economies, and to explore the development of tribal government risk management pools, alternative dispute resolution, and related measures to reduce the likelihood of injuries that could take place in association with governmental economic activity. Our work resulted in the Report language posted below, which was included in the FY’21 Year End Omnibus Appropriations Bill that directs the U.S. Department of Justice – Office of Tribal Justice to work with tribes to study this important issue and report to Congress on methods to improve protections to tribal immunity: Tribal Sovereign Immunity. —The Department’s Office of Tribal Justice [OTJ] serves as the point of contact for federally recognized tribal governments and tribal organizations with respect to legal and policy matters in Indian Country. Within the funds provided for General Administration, not less than $50,000 is for OTJ to consult with tribal entities concerning risk management, loss prevention, the resolution of tort claims, alternative dispute resolution, and protecting and managing tribal sovereign immunity in the context of economic development. The Committee directs OTJ to submit a report, within 1 year of the enactment of this act, describing best practices for tribal risk management.
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