Opinion: Sovereign immunity under full frontal attack

"As explained in part one, 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.

" 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.''

" 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."

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Gabriel Galanda: Defending against attacks on tribal sovereign immunity (Indian Country Today 6/8)

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Opinion: Sovereign immunity under full frontal attack (6/1)

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