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Galanda: Defending against attacks on tribal sovereign immunity

Part three

The first two parts of this series focused primarily on pre-litigation strategies involving the use of tribal immunity as a nation-building tool. This third and final part provides defensive alternatives to asserting sovereign immunity in lawsuits against tribal governments and/or their businesses, officers or employees.

Simply put, tribes can no longer assert immunity in knee-jerk reaction to lawsuits against them. Why? Because once a tribal government files a motion to dismiss on tribal immunity grounds, the tribe cedes its - and Indian country's - control over tribal sovereign rights to the judicial system, probably a state or federal judiciary and very possibly the U.S. Supreme Court, which has not taken kindly to tribes in recent years. And relinquishing such power to the non-tribal judiciary is how the next disastrous ruling for Indian country will come about.

The next time your tribe is sued, consider the following ways tribes can exercise tribal sovereignty by pursuing alternatives to asserting tribal immunity - alternatives that could both protect the tribe and its treasury in the short term and preserve tribal sovereignty and immunity for the future.

"Alternative dispute resolution: Generally speaking, in commercial dealing, tribes prefer that any dispute arising from the deal be heard in tribal court, while tribal business partners prefer state court as the forum for any such dispute. Binding arbitration, with appropriate enforcement of any arbitration award in tribal and/or state court, has become a popular compromise in major tribal business dealings.

While arbitration language likely operates to waive tribal immunity under C & L Enterprises Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411(2001), vesting jurisdiction in a private arbitration panel eliminates the possibility that a tribe's sovereignty, immunity or jurisdiction would be adjudicated - or eroded - by a court.

Also, when faced with lawsuits not subject to mandatory arbitration, tribal governments could propose arbitration as an alternative mode of dispute resolution and consent to arbitrate a matter on the merits (a legal strategy discussed below). Yakama Nation leaders have a saying: ''We don't put our treaty on trial.'' ADR contract language is one way to enforce tribal business rights and allow redress for tribal business partners, while keeping your sovereignty out of trial.

"Federal Tort Claims Act tenders: Under self-governance agreements called ''638 contracts'' (named after P.L. 93-638), the federal government funds tribal governmental programs that the United States would otherwise provide tribes in fulfillment of its trust responsibility. A 1990 amendment to the federal self-determination act provides 638 tribes protection under the FTCA for claims resulting from tortuous acts or omissions arising from their performance of self-governance contractual functions.

Importantly, the U.S. Department of Justice must defend 638-related tort lawsuits against self-governance tribal defendants, including having any tribal defendants replaced by the United States as the defendant to the lawsuit. Assuming the current federal government honors its legal, contractual and trust obligations to defend self-governance tribes, FTCA claim procedures help take tribal sovereignty and immunity out of the legal firing line.

If the United States does not keep its promise to a 638 tribe, that tribe, if backed by proper liability insurance, could compel its carrier to underwrite a lawsuit in federal court against the federal government to compel it to defend and indemnify the tribe. Such a tactic would be reasonably related to the defense of the underlying tort lawsuit and thus should be covered under the tribe's insurance policy.

"Early settlement: Settling rather than dismissing personal injury or contract claims with merit, especially those brought by non-Indians, may be wise for at least two reasons. First and foremost, asserting immunity as a bar to suits brought by reservation patrons may not be ''the best policy to promote a profitable business.'' Seminole Tribe of Florida v. McCor, 903 So. 2d 353 (Fla. 2d Ct. App. 2005).

Simply put, non-Indians will not return to the reservation for business or fun - activities that fuel tribal economies - if they cannot feel assured that their rights will be protected in the event something goes wrong. A liability insurance policy that honors tribal sovereign decision-making would make such an alternative even easier as insurance proceeds - rather than tribal monies - would be available to help make the injured party whole.

Secondly, as professor David Getches has observed: ''While it is not always possible to prevent the [U.S. Supreme] Court from hearing an Indian case, the dismal record for tribes from the last fifteen years of Supreme Court cases should encourage tribes to settle.'' Since 2001, the high court has been presented with 28 cases involving the tribal immunity doctrine.

Thankfully, Indian country has dodged those 28 bullets, as the court has not taken any of those opportunities to abrogate tribal immunity. (Recall the court not too long ago ''suggest[ing] a need to abrogate tribal immunity, at least as an overarching rule'' and ''defer[ing] to the role Congress may wish to exercise in this important judgment.'' Kiowa v. Manufacturing Technologies, 523 U.S. 751 [U.S. 1998].)

But if Indian country continues to roll the dice, our luck will run out. The next tribal immunity case that ends up before the conservative block of justices, including Antoine Scalia and Clarence Thomas, will very likely sound the death knell for tribal immunity, which would leave tribal treasuries exposed to high-stakes class action litigation and tribes vulnerable to state regulatory encroachment through judicial decision making. Accordingly, tribes must heed professor Getches' advice and carefully consider settling certain claims short of motion practice.

"Consent to suit on the merits: Tribes should also consider litigating certain suits, such as frivolous tort claims, on the merits. Consistent with defining the time, place, manner and limits for any claims against a tribal or tribal entity, a tribe could consent to a particular court's jurisdiction and limit any potential judgment against it to available liability insurance proceeds. See generally, Collins v. Memorial Hospital of Sheridan County, 521 P .2d 1339 (Wyo. 1974). Such a tactic could allow the tribe to dismiss or defeat the lawsuit on the merits, without putting tribal sovereignty or immunity on trial.

That is precisely how the Muckleshoot Tribe recently defeated a lawsuit. In Townsend v. Muckleshoot Indian Tribe, the tribe answered a state court civil complaint arising from a construction project, explaining: ''As a matter of policy, the Tribe has determined to not assert its immunity to bar resolution of personal injury or property damage claims that are covered by and within the coverage limits of its liability insurance.'' 137 Wash. App. 1002 (Wash. App. 2007). (Again, you can see the importance of a strong liability insurance policy.) The Tribe then convinced the state court that plaintiffs could not prove their case as a matter of law and accordingly, the case was dismissed with prejudice. All the while, the tribe never allowed its sovereign immunity to be scrutinized or indicted by the state judiciary.

Indian people do not say or express ''goodbye.'' We say, ''See you next time.'' Let's do what we can to avoid waiving goodbye to tribal immunity so Indian country will have its protection next time - perhaps when we need it the most.

To listen to a special "Forum on Tribal Sovereign Immunity" featuring a panel of prominent tribal leaders and legal experts (including Gabriel Galanda) on the AIROS Native Radio Network, please visit www.nativeradio.org/nni.

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.