December court decisions question sovereign immunity

WASHINGTON - Two unrelated court decisions in late December have raised concerns among attorneys in Indian country that tribal sovereign immunity from lawsuits is under siege.

In a case that revisited the legal status of race relations going all the way back to the Civil War, the U.S. District Court for the District of Columbia ruled on Dec. 19 that the Cherokee Tribe and its officials are not immune from lawsuit ''in these circumstances'' - complex circumstances indeed, but the gist of them is this: Cherokee Freedmen, the descendants of slaves to the Cherokee or of free blacks who intermarried with Cherokees, can sue the tribe and its officials for excluding them from 2003 elections that sought to limit citizenship to Indians in a way that again left out the Freedmen.

The Freedmen complained to the Interior Department that the Cherokee sought to deny tribal citizenship ''as a matter of policy for Cherokees who can trace [their lineage] only to the Cherokee Freedmen Rolls'' and not to the ''Blood Rolls,'' restricting citizenship to the descendants of citizens with Indian blood.

The Freedmen, then known as ''Black Cherokees,'' had been made citizens of the Cherokee Nation (which sided with the Confederacy during the Civil War) by the Treaty of 1866, as a condition of continued Cherokee sovereignty in the United States. The treaty reads, in part: ''all freedmen who have been liberated ... as well as all free colored persons ... and their descendants, shall have all the rights of native Cherokees.''

Congress has repeatedly sought to protect Freedmen interests from Cherokee interventions, Judge Henry Kennedy reasoned. ''By repeatedly imposing such limitations on the sovereignty of the Cherokee Nation in order to protect the Freedmen, Congress has unequivocally demonstrated its intent to abrogate the tribe's immunity with regard to racial oppression prohibited by the Thirteenth Amendment [abolishing slavery]. Although the right to vote is not explicitly mentioned by the Thirteenth Amendment, there can be no doubt that the right to vote is fundamental and cannot be denied on account of race.''

Kennedy's opinion is online at www.dcd.uscourts.gov/opinions/2006/2003CV01711-102756-12192006a.pdf.

In California on Dec. 21, the state Supreme Court filed an opinion that the Agua Caliente Band of Cahuilla lack immunity from lawsuit over noncompliance with state regulation of its political and electoral processes. As in the Cherokee Freedmen case, the court based its decision on ''the unique issue raised in the present case,'' the issue of the tribe's failure to report its political campaign contributions to a state commission.

California tribes, especially gaming tribes, have become a major presence in state political campaigns. Immediately following the Dec. 21 decisions, a number of tribal leaders in the state told various media that most tribes there already comply with disclosure requirements.

But the so-called ''bad facts'' in the case have some potential to extend beyond the local setting. The Agua Caliente did not defy the state's right to regulate election processes, but only its right to enforce the regulations on the tribe. Based on that distinction, the court majority found a further distinction between tribal sovereignty and tribal sovereign immunity from lawsuits. The distinction locates the origin of tribal sovereign immunity in dicta, incidental judicial opinions that are not essential to a decision and set no precedent in case law.

''Tribal sovereign immunity from suit is not synonymous with tribal sovereignty. Rather, it is merely one attribute of the status of Indian tribes as domestic dependant [sic] nations. That tribal sovereign immunity included immunity from suit was a concept developed 'almost by accident' in Turner v. United States (1919) 248 U.S. 354. ... There, 'for the sake of argument,' ... the high court made a 'passing reference to immunity.'... The concept of tribal immunity was elevated from dictum to holding [in 1940] ... 'Later cases, albeit with little analysis, reiterated the doctrine.'''

Ultimately, the court majority argues a case for overturning that doctrine under the limited circumstances before it. ''Tribal members, as citizens of the United States, are allowed to participate in state elections. Allowing the Tribe immunity from suit in this context would allow tribal members to participate in elections and make campaign contributions (using the tribal organization) unfettered by regulations designed to ensure the system's integrity. Allowing tribal members to participate in our state electoral process while leaving the state powerless to effectively guard against political corruption puts the state in an untenable and indefensible position without recourse.

''Given the unique facts here, we agree with the Court of Appeal and conclude that the guarantee clause [article 4, section 4 of the Constitution, reserving to citizens a right to republican government and the electoral choice of their own administrative offers], together with the rights reserved under the Tenth Amendment [reserving powers to the states], provide the [Fair Political Practices Commission] authority under the federal Constitution to bring suit against the Tribe in its [FPPC's] enforcement of the PRA [Political Reform Act, the California law in question].''

Writing for the 4 - 3 majority of the court, Justice Ming Chin added, ''In so holding, we recognize that our abrogation of the sovereign immunity doctrine under these facts is narrow and carefully circumscribed to apply only in cases where California, through its Fair Political Practices Commission, sues an Indian tribe for violations of state fair political practice laws.''

The minority issued a vigorous dissenting opinion. Both opinions in the case are accessible online at www.courtinfo.ca.gov/opinions/documents/S123832.PDF.