Galanda: Defending against attacks on tribal sovereign immunity

Tribal sovereign immunity - the legal principle that Indian tribal governments, like other sovereigns, may not be sued without their own consent - is under a full frontal attack. Consider these passages from recent federal and state court opinions:

Tribal immunity is ''divorced from the realities of the modern world.''

''[H]opefully [tribes] will eventually conclude that this litigation tactic [of asserting sovereign immunity] is not the best policy to promote a profitable business.''

''[T]he constitutional right of the State to preserve its republican form of government trumps the common law doctrine of tribal immunity.''

Unless Indian country reacts to such scathing judicial indictments through more strategically thought-out assertions of sovereign immunity, tribal governments will lose that right and the ability to develop reservation economies without the threat of ruinous lawsuits.

Presently, sovereign immunity is the strongest defense to litigation attacks against tribal treasuries and the assertion of state regulatory authority on tribal lands. See Oklahoma Tax Comm'n v. Citizen Band of Potawatomi, 498 U.S. 505 (1991). Without immunity protection, tribes would be faced with an avalanche of personal injury and class action lawsuits that could bankrupt tribal treasuries. Unimpeded by tribal immunity doctrine, state and local governments could sustain legal attacks on tribal governments in state courts that would further erode Indian sovereignty and regulatory control over the reservation.

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