Sovereign Immunity Bars Most Suits Against Indian Tribes

Most civil suits against Indian tribes are precluded by sovereign immunity. The doctrine of sovereign immunity traces its origins to early English common law when all authority derived from the King or the Queen. Since the King authorized the courts to hear cases on his behalf, the courts were without authority to hear cases against the king or his agents.

The English colonists brought this doctrine with them to the new world and applied it to the three sovereigns they recognized: the federal government, the states, and the various Indian tribes. Thus, like the old English kings, the American sovereigns cannot be sued without their consent.

Congress began to waive sovereign immunity for contract claims against the federal government before the Civil War. The modern waiver of sovereign immunity for most types of tort claim was promulgated in the 1950s. Likewise, most, if not all, state legislatures have waived sovereign immunity for most contract and tort claims against state governments. Most Indian Tribes, however, have not waived sovereign immunity.

Therefore, when analyzing a potential claim against an Indian tribe, assume that sovereign immunity applies, then look for an exception. The only two exceptions are: 1) Congressional abrogation; or 2) waiver by the Tribe.

Congressional abrogation must be explicit. It cannot be implied. Waiver by the Tribe must also be explicit and it must be waived by someone with proper authority. For example, the tribal attorney is probably not authorized to waive sovereign immunity. The most authoritative waiver would be a resolution duly promulgated by the tribal council.

Although it may seem as if it violates rule number one, the most common example of Congressional abrogation of sovereign immunity is a federal law of general applicability, i.e. any federal statute that applies to everyone and does not explicitly exclude Indians.

The most common example of a waiver by a tribe is probably an arbitration clause in a contract. In addition, some Tribes have waived sovereign immunity for a limited type of tort claims. The waiver is usually limited to the coverage limits of the tribal insurance policy.