Tribal Sovereign Immunity: A Defense Available to Individuals
Author: Luke Hasskamp
Most are probably familiar with the concept of tribal sovereignty; that is, the idea that Native American / Indian Tribes have inherent authority to govern themselves, free of interference by federal or state governments.
An essential aspect of tribal sovereignty is tribal sovereign immunity: immunity from lawsuits in federal, state, and tribal courts. More specifically, under federal law, an Indian tribe has immunity, not only from liability, but also from suit. Accordingly, under tribal sovereign immunity principles, an Indian tribe is subject to suit only where (1) Congress has authorized such a suit or (2) the Tribe itself has waived its immunity by consenting to suit. Absent such authorization or consent, courts do not have subject matter jurisdiction over suits against a Tribe.
Importantly, these sovereign immunity principles don’t just apply to the Tribe itself. They also extend to entities established by the Tribe, such as governmental agencies, tribal colleges, and casinos. Perhaps most interestingly, sovereign immunity also extends to individuals associated with the Tribe, such as officers and employees, at least in some circumstances. This includes lawsuits brought against individuals for money damages.
This article discusses these principles of sovereign immunity, including some of the instances in which individual officers or employees of Tribes and tribal entities can invoke sovereign immunity principles to avoid suit.
Sovereign immunity principles
It is well settled and widely understood that Tribes are sovereign authorities and, as such, enjoy tribal sovereign immunity from lawsuit. See e.g., Turner v. United States, 248 U.S. 354 (1919); Puyallup Tribe v. Department of Game, 433 U.S. 165 (1977). The Supreme Court has repeatedly recognized Congress’s commitment to a “policy of supporting tribal self-government and self-determination.” National Farmers Union Insurance Companies v. Crow Tribe, 471 U.S. 845, 856 (1985).
Notably, sovereign immunity is not limited the Tribe itself; instead, it also extends to entities that function as “an arm of the Tribe.” Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006); Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040, 1043 (8th Cir. 2000) (“It is also undisputed that a tribe’s sovereign immunity may extend to tribal agencies.”).
These “arms” of the Tribe encompass governmental agencies and non-profit entities of the tribe, including:
- Tribal housing authorities
- Dillon v. Yankton Sioux Tribe Housing Authority, 144 F.3d 581 (8th Cir. 1998)
- Marceau v. Blackfeet Housing Authority, 455 F.3d 974 (9th Cir. 2006)
- Duke v. Absentee Shawnee Tribe of Oklahoma Housing Authority, 199 F.3d 1123 (10th Cir. 1999)
- Tribal colleges
- Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040 (8th Cir. 2000)
- Non-profit health associations
- Pink v. Modoc Indian Health Project, 157 F.3d 1185 (9th Cir. 1998)
- Tribal newspapers
- Subranni v. Navajo Times Publishing Co. (In re Star Group. Communications, Inc.), 568 B.R. 616 (Bankr. D.N.J. 2016)
Further, tribal commercial and business activities can also constitute arms of the tribe. See American Vantage Companies v. Table Mountain Rancheria, 292 F.3d 1091 (9th Cir. 2002). This includes for-profit endeavors, even operations taking place off-reservation:
- Prescott v. Little Six, Inc., 387 F.3d 753 (8th Cir. 2004)
- Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006)
- Trudgeon v. Fantasy Springs Casino, 71 Cal. App. 4th 632, 84 Cal. Rptr. 2d 65 (1999)
- Construction companies
- Equal Employment Opportunity Commission v. Fond du Lac Heavy Equipment & Construction Co., 986 F.2d 246 (8th Cir. 1993)
- Distribution companies
- Somerlott v. Cherokee Nation Distributors, No. CIV-08-429-D, 2010 U.S. Dist. LEXIS 38021, (W.D. Okla. Apr. 16, 2010)
- Management / services companies
- Johnson v. Choctaw Management/Services Enterprise, 149 F. App’x 800 (10th Cir. 2005)
- Off-reservation for-profit endeavors
- Redding Rancheria v. Superior Court, 88 Cal. App. 4th 384, 105 Cal. Rptr. 2d 773 (2001)
Thus, sovereign immunity is available to a wide range of tribal entities, including non-profit organizations and for-profit endeavors.
Sovereign immunity for individuals
Perhaps most interestingly, tribal sovereign immunity also extends to individuals associated with the Tribe or tribal entities, such as officers or employees, at least in some circumstances. And this is true even if these individuals are sued in their individual capacities for money damages.
Specifically, the Supreme Court has directed that “courts should look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars the suit.” Lewis v. Clarke, 137 S. Ct. 1285, 1291 (2017). The reasoning for this is clear—to ensure that a crafty litigator cannot improperly evade sovereign immunity simply by suing an individual, instead of the Tribe itself: “a plaintiff cannot circumvent tribal immunity by the simple expedient of naming an officer of the Tribe as a defendant, rather than the sovereign entity.” Cook v. AVI Casino Enters., Inc., 548 F.3d 489, 492 (9th Cir. 2002)
In assessing whether the sovereign is the real party in interest, courts assess whether the lawsuit implicates an aspect of “tribal governance and administration.” Brown v. Garcia, 17 Cal. App. 5th 1198, 1206, 225 Cal. Rptr. 3d 910, 916 (2017).
For example, in Brown v. Garcia, the court held that the individual defendants were entitled to invoke sovereign immunity because “plaintiffs sought to hold defendants liable for actions they took as tribal officials in pursuing plaintiffs’ disenrollment from the Tribe . . . [and concluded] that adjudicating the dispute would require the court to determine whether tribal law authorized defendants to publish the Order and disenroll plaintiffs . . . .” Id. at 1206–07.
Other cases have reached similar results. In Acres Bonusing, Inc. v. Marston, the court—relying on Brown and distinguishing Lewis v. Clarke (discussed below)—found that the defendants, individual attorneys who had represented a tribal casino in tribal court, were entitled to sovereign immunity on actions relating to that representation. No. 19-cv-05418-WHO, 2020 U.S. Dist. LEXIS 66438, at *17 (N.D. Cal. Apr. 15, 2020). Specifically, the court reasoned that allowing the lawsuit to proceed would require it to scrutinize “the judicial function” of the Tribe itself, something the court was not permitted to do. Id. at *17–18 (“Looking beyond the façade of a facially–pleaded individual–capacity lawsuit, I find that ‘entertaining this suit would require the court to adjudicate the propriety of the manner in which tribal officials carried out an inherently tribal function.’”) (quoting Brown, 17 Cal. App. 5th at 1207).
Likewise, in Genskow v. Prevost, the court found tribal police officers were entitled to sovereign immunity after ejecting the plaintiff from a tribal meeting, holding that “tribal sovereignty must mean that Indian tribes are free to conduct the meetings of their own governing bodies without the threat of a federal lawsuit every time they rule a disruptive member out of order and have him or her removed.” No. 19-C-1474, 2020 U.S. Dist. LEXIS 59860, at *9 (E.D. Wis. Apr. 6, 2020) (“To allow the lawsuit to proceed would interject the court into the internal workings of the Nation and its governing body.”).
The Supreme Court’s decision in Lewis v. Clarke
Plaintiffs will eagerly cite to the Supreme Court’s recent decision in Lewis v. Clarke, 137 S. Ct. 1285 (2017), for the proposition that individuals are never entitled to sovereign immunity. Yet, even a cursory review of the Lewis decision reveals it made no such holding—indeed, lower courts interpreting Lewis have not read it to be so expansive. To the contrary, Lewis stands for the uncontroversial proposition that there are certain circumstances in which an individual tribal member or employee may not be entitled to sovereign immunity. Indeed, the Lewis court expressly acknowledged that sovereign immunity extends to tribal officials when they act in their official capacity and within the scope of their authority. See id. at 1288.
The facts of Lewis were simple and straightforward, and did not implicate tribal governance or administration. Instead, the action was for damages for personal injuries sustained by non-Indians on a claim for common law negligence arising out of an automobile accident that occurred on a state highway not on the reservation. The defendant was an employee of a tribal casino acting within the scope of his duties (he was transporting casino patrons at the time of the accident).
None of this implicated any concerns about tribal functioning or governance. That is, the lawsuit to not potentially interfere with aspects of tribal administration. Thus, according to the Court, the lawsuit could not be read as a suit against the Tribe because it would not bind the Tribe or its instrumentalities in any way.
Raise sovereign immunity early and often
Finally, any party asserting sovereign immunity would be wise to do so at the outset of the litigation. This is because sovereign immunity does not simply immunize one from ultimate liability; it immunizes from lawsuits entirely, meaning the party won’t have to spend months or years in the case.
The typical vehicle to raise such a challenge is via a motion to dismiss, or perhaps a demurrer in California. Indeed, California courts have authorized Indian tribes and their officials to specially appear and invoke their immunity from suit by using a hybrid motion to quash/dismiss. Brown v. Garcia, 17 Cal. App. 5th 1198, 225 Cal. Rptr. 3d 910 (2017).
Now, as practitioners know, generally, in entertaining a motion to dismiss, courts must accept the allegations of the complaint as true, and construe all inferences in the plaintiff’s favor. Yet, when sovereign immunity principles are implicated, the court is able to look beyond the four corners of the complaint to assess whether it possesses subject matter jurisdiction. Indeed, the court is required to make these factual inquiries. See Great West Casinos v. Morongo Band of Mission Indians, 74 Cal. App. 4th 1407, 1418, 88 Cal. Rptr. 2d 828, 836 (1999) (“the court must engage in sufficient pretrial factual and legal determinations to satisfy itself of its authority to hear the case before trial.”).
Notably, although it would seem to make sense to raise sovereign immunity right away, a party is generally not required to do so, as challenges to subject matter jurisdiction can be raised at any time during a lawsuit. The one concern with failing to raise sovereign immunity right away would be inviting the argument that the party waived its sovereign immunity by proceeding with the litigation. But courts typically require explicit and unequivocal waivers to find that sovereign immunity is not available. See Maxwell v. County of San Diego, 697 F.3d 941, 953 (9th Cir. 2012)
Importantly, on a motion invoking sovereign immunity to dismiss for lack of subject matter jurisdiction, “the plaintiff bears the burden of proving by a preponderance of evidence that jurisdiction exists.” Lawrence v. Barona Valley Ranch Resort & Casino, 153 Cal. App. 4th 1364, 1369 (2007); Nucor Corp. v. Nebraska Public Power District, 891 F.2d 1343, 1346 (8th Cir. 1989) (“It is well settled that the plaintiff bears the burden of establishing subject matter jurisdiction.”). Thus, when a defendant raises sovereign immunity, the burden swings to the plaintiff to prove that immunity is not applicable.
Finally, to the extent the Court considers the question of sovereign immunity to be a close question, the tie goes to the party asserting sovereign immunity, as courts err on the side of finding sovereign immunity to be present. See In re Equipment Acquisition Resource, Inc., 742 F.3d 743, 750 (7th Cir. 2014) (“[W]hen it comes to sovereign immunity, ties go to the government.”); Kroll v. Board of Trustees of the University of Illinois, 934 F.2d 904, 910 (7th Cir. 1991) (“[T]he vital role of the doctrine of sovereign immunity in the federal system demands that we err, if at all, on the side of immunity.”).
Courts pay close attention to sovereign immunity principles and are careful not to interfere with tribal governance or administration. Accordingly, litigants would be wise to raise sovereign immunity challenges early, even if they are individuals who have been sued in their individual capacities for money damage.