To Sue and Be Sued: Capacity and Immunity of American Indian Nations
Creighton Law Review volume 51, edition 2, 2018 (Forthcoming)
26 Pages Posted: 2 Oct 2017 Last revised: 9 Nov 2017
Date Written: September 28, 2017
Can American Indian nations sue and be sued in federal and state courts? Specific issues are whether tribes have corporate capacity to sue, whether a Native group has recognized status as a tribe, and whether and to what extent tribes and their officers have governmental immunity from suit. Tribal capacity to sue is now well established, and federal law has well-defined procedures and rules for tribal recognition. But tribal sovereign immunity is actively disputed.
This paper reviews retained tribal sovereignty in general and summarizes past contests over tribal capacity to sue and their resolution into today's settled rule. Next is a concise statement of the law on federal recognition of tribal entities. Most of the paper explains and analyzes ongoing issues about tribal immunity from suit. Tribal immunity has been continuously recognized from the first reported decision, but tribes' commercial activities, modern attacks on immunity generally, and states rights proclivities of some justices jeopardize its existence. Much active litigation involves suits against tribal officers and possible application of the Ex parte Young doctrine. For many reasons, tribes are adopting carefully defined consents to suit, particularly in relation to tribal casinos. This paper's essential purpose is to give tribes and their lawyers a full account of the law on tribal immunity and current disputes about it.
Keywords: Sovereign immunity, tribal sovereignty, capacity to sue, American Indian nations, consent to be sued, immunity of tribal officers
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