When tribes enter into legal agreements with state governments or others, they can no longer rely on courts to protect tribal sovereign immunity under the general principles of federal common law alone.
That is the warning every tribe must take from two recent New England cases. A state high court and the 1st Circuit Court of Appeals each has found ''express'' waivers of sovereign immunity in two different state/tribe land settlements, and so permitted the states to enforce their criminal and regulatory laws directly against two tribal governments.
These are shocking interpretations of Massachusetts and Rhode Island land settlement acts because neither act contains an express waiver of sovereign immunity or any provisions that refer to tribal immunity. Neither case presented a shred of evidence that the state and tribe had ever discussed tribal immunity, to say nothing of bargaining it away as these courts held.
Both the Wampanoag and Narragansett tribes argued that federal Indian law clearly provides that a state/tribe agreement that grants a state jurisdiction on tribal lands does not confer jurisdiction over the tribal government. Numerous cases under Public Law 280, and even some prior cases in the 1st Circuit, have affirmed that principle. It was thus a surprise when both these courts ''interpreted'' the ''intent'' of the settlement acts to permit direct enforcement against tribal governments. Although both courts limited their holdings to the specific settlement acts and to surrounding facts, no tribe can afford to disregard the assault on sovereignty that these decisions represent.
In the Wampanoag case, a tribal land corporation formed prior to federal recognition agreed to hold settlement lands ''subject to the same laws, as any other Massachusetts corporation.'' Overturning a lower court, the Massachusetts Supreme Judicial Court in Bldg. Inspector v. Wampanoag Aquinnah Shellfish Hatchery Corp. read that provision to constitute an express waiver of the tribe's sovereign immunity. The court did not address the importance of the federal government's subsequent extension of federal recognition to the Wampanoag after the land corporation agreement and whether the tribe had any recognized claim to immunity that it might bargain away Bldg. Inspector v. Wampanoag Aquinnah Shellfish Hatchery Corp. Nor did the decision take into account that the corporation was a completely separate legal entity from the tribal government and never did hold the lands in question.
About 18 months later, in Narragansett Indian Tribe v. Rhode Island, the 1st Circuit interpreted language in the Rhode Island Settlement providing that ''the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.'' The court held that this provision ''drew no distinction between tribal members and the Tribe itself.'' It held that by agreeing to those terms, the tribe had waived its immunity and by adopting that language into statute, Congress abrogated Narragansett immunity as well.
The tortured reasoning of these courts ignores Supreme Court precedents and contradicts earlier holdings regarding the sovereign immunity of these tribes. Indeed, prior federal decisions involving the same statutory provisions and the same tribes had reasoned that in the ''interpretation of statutes that touch upon tribal sovereignty, the court is obligated to construe acts diminishing the sovereign rights of Indian tribes strictly.'' Under that standard, those same courts ruled that ''these provisions are altogether silent on the question of tribal sovereign immunity.'' As the dissenting judge in the Narragansett case noted, ''The problem here is not a choice of language, but the lack of any language in any of the relevant documents that speaks to jurisdiction over the Tribe.''
Both New England decisions defy well-settled Supreme Court rules, including that ''a waiver of sovereign immunity cannot be implied but must be unequivocally expressed'' and that ''there is a difference between the right to demand compliance with state laws and the means available to enforce them'' against tribal governments.
More often than ever before, tribes all over the United States now enter into various kinds of state/tribe agreements and private contracts. These may be commercial contracts with businesses, contracts with government agencies to provide services, agreements to share law enforcement jurisdiction, or even gaming compacts. The New England cases warn that when a tribe drafts a contract, agreement or compact, it must keep these cautionary tales in mind and not simply rely on federal common law sovereignty rules.
State and federal courts appear to increasingly ignore common law protections as evidenced by the recent California Supreme Court campaign finance ruling. The courts only pay lip service to such protections as the Indian canons of construction and ''backdrop'' analysis that require courts to presume tribal immunity is intact and require clear and unequivocal proof of waiver. The New England cases shift the burden of immunity proof to tribes. The only rational way to combat this unfortunate trend, other than have Congress act to shore up tribal immunity, is to negotiate express provisions in every contract and agreement that recognize and affirm tribal sovereignty generally and sovereign immunity in particular.
Douglas Luckerman is an attorney in private practice in Lexington, Mass. He was the tribal counsel in Narragansett Indian Tribe v. Rhode Island.