Galanda: Defending against attacks on tribal sovereign immunity

Part two

As explained in part one [Indian Country Today, Vol. 26, Iss. 52], this three-part series is inspired by a recent roundtable forum on tribal sovereign immunity that was hosted in Tucson, Ariz., by the Native Nations Institute for Leadership, Management and Policy, and the Indigenous Peoples Law and Policy program at the University of Arizona. The forum was organized and led by Harvard economist and anti-trust expert Joseph Kalt and Indian law professor and tribal court chief justice Robert Williams.

For this second part, it bears repeating that unless tribal governments define the time, place, manner and limits for claims against them or tribal entities, congressmen and judges will take it upon themselves to waive, or outright do away with, the tribal immunity defense. Consider the following ways in which tribal governments can so exercise their sovereignty, and proactively use tribal immunity as a tool for nation-building:

"Tribal Administrative Procedures Act: One forum participant commented that tribal legislative actions should be challengeable by tribal members much like state and federal actions can be contested pursuant to administrative procedure acts, which operate to waive governmental immunity in limited fashion.

As both Kalt and Williams explained, the doctrine of sovereign immunity originated in merry old England, where the courts held that the king, who basically owned the courts, ''could do no wrong.'' The notion that a tribal government could deny its own citizens a forum to hold that government accountable for its decisions (or omissions) seems foreign to indigenous legal traditions and the customs and traditions of many Indian tribes on this continent.

While the Ex parte Young doctrine may allow already suit against tribal officers for equitable relief in limited instances, tribes should consider creating processes and affecting limited immunity waivers to allow heightened transparency and accountability in tribal policy-making.

"Reservation due process: In Wright v. CTEC, 159 Wash. 2d 108 (Wash. 2006), the Washington State Supreme Court held that tribally owned corporations stand immune from suit, absent express waiver of that immunity by the tribe or U.S. Congress. Importantly, the court commented that the plaintiff in Wright, a non-Indian employee who sued for discrimination, was not left without a remedy; he ''could have filed a grievance or sought relief through the Tribal Employments Rights Office'' or ''recover[ed] damages under a policy of insurance.''

Judges who are asked to dismiss a suit against a tribal government or corporate entity are primarily concerned about whether the tribal government would otherwise afford the plaintiff some form of due process of law - i.e., ''constitutional rights to access to the courts and to trial by jury.'' (Seminole Tribe of Florida v. McCor, 903 So. 2d 353 [Fla. 2d Ct. App. 2005].) Thus, tribes should consider promulgating and following employment laws that confer employees' grievance rights and perhaps even allow them to seek limited redress (i.e., equitable relief such as reinstatement) in tribal administrative and/or judicial forums.

"Tribal tort claims laws: For much the same reason, tribes should also enact tribal tort claims acts to ensure that people who are injured on the reservation have an opportunity to be made whole. Again, sovereign immunity is a governmental power to define the time, place, manner and limits for any suit against the sovereign, and waiving immunity in limited form is an exercise - not a waiver - of sovereignty.

Tribes like the Colville, Tulalip and Quinault nations have crafted laws that allow a plaintiff who can prove that he or she was actually injured to recover damages through tribal legal processes, up to certain available liability insurance proceeds. Such tribes have exercised their sovereignty to define the terms under which they will allow redress to injured people - rather than allowing nontribal courts or Congress to do so.

"Tribal liability insurance procurement: As explained in a recent three-part ICT series that I co-authored with Debora Juarez, the insurance industry has no problem with taking gross advantage of tribal governments, if tribes let them. Standard-form tribal insurance policies may not even provide tribes legal defense to tort claims. So what, then, is the essential benefit of the insurance bargain?

Those same policies likely disallow tribes from selecting legal counsel with expertise in federal Indian and tribal law to defend and advise them about the types of sovereignty issues and immunity alternatives discussed in this piece. In addition, those policies may allow an insurer to assert a tribe's immunity from suit without tribal consent, or deny coverage to the tribal insured if the tribe decides for policy reasons against asserting immunity as a defense to suit.

What's more, arbitration language in the policies may operate to divest a tribe's justice system of jurisdiction, and waive tribal immunity from countersuit under C & L Enterprises Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001), in the event the tribe must sue its insurer for insurance defense and/or indemnification.

Also, those policies may not provide a self-governance or ''638'' tribe any private coverage if the tribe is ''eligible'' for defense by the U.S. Department of Justice pursuant to 1990 amendments to the federal self-determination act. Under ''638 contracts,'' the United States funds tribal governmental programs that it would otherwise provide tribes and must defend 638 tribes from tort claims arising from those programs (as further discussed in part three). But, with the Bush administration unrelenting in its refusal to defend tribes from 638-related claims, such policies could leave tribes without any private insurance protection as well.

For these reasons, senior tribal leadership and tribal

lawyers - not just midlevel tribal staff - must take an active role in insurance procurement and tort claims handling for tribal governments and enterprises.

(Continued in part three)

Gabriel Galanda is an attorney with Williams Kastner's Tribal Practice Team in Seattle. He is a descendant of the Nomlaki and Concow Tribes and an enrolled member of the Round Valley Indian Tribes.