Trying to understand Native American tribal sovereignty is like
trying to understand the scope of federal preemption of
transportation law. The bench and bar have been hammering out
federal preemption’s parameters at least since enactment of the
Motor Carrier Reform Act in 1980, when I started practicing. And
we’re still working on it. Indian sovereignty appears to be
evolving the same way. To understand, one must study the decisions
of the higher courts.
Dear Editor,
Trying to understand Native American tribal sovereignty is like trying to understand the scope of federal preemption of transportation law. The bench and bar have been hammering out federal preemption’s parameters at least since enactment of the Motor Carrier Reform Act in 1980, when I started practicing. And we’re still working on it. Indian sovereignty appears to be evolving the same way. To understand, one must study the decisions of the higher courts.
For example, some questions have been answered, but many remain. Some of the answers given by our federal judiciary to this thorny problem of sovereignty, and waiver thereof, are these Supreme Court cases:
n Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc: The U.S. Supreme Court held that an Indian tribe is not subject to suit in a state court even for breach of contract involving off-reservation commercial conduct unless Congress has authorized the suit or the tribe has waived its immunity.
n C&L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma: The Indian tribe waived its sovereignty. The waiver was not coerced, so tribe was bound by state court’s decision.
n Oklahoma Tax Com. v. Citizen Band Potawatomi Tribe of Oklahoma: To relinquish its immunity, a tribe’s waiver must be clear.
Well. Does that make it “clear?” Whenever the nation’s highest judges struggle with this issue, what does that portend for the rest of us?
How about the 9th Circuit Court of Appeals’ guidance for us? Is their help any better? How about this 9th Circuit decision:
n Paiute Palace Casino v. County of Inyo: Inyo County and its District Attorney violated the Native American tribe’s sovereign immunity by obtaining and executing a criminal case search warrant against the tribe and casino. Inyo County and its District Attorney are liable for civil rights damages to casino employees accused of welfare fraud, i.e., collecting welfare checks from the county while employed at the casino. Inyo County and its DA are not entitled to immunity from suit even though they acted under the color of state law.
From this, we can see, I submit, that we are not “one nation.” By authorizing nations to exist within our nation, I believe that Congress has made a liar out of our first chief justice. Mr. Justice John Jay said America would be a nation of one class of citizens, each enjoying the same national rights and privileges. A goal never achieved, some might observe, but one made impossible to achieve whenever we allowed a conquered people to have their sovereignty. Historian-patriot Teddy Roosevelt must be turning over in his grave. The “melting pot” dream of the Founders never seemed so hopeless of achieving, thanks to our Congress.
Joe Thompson, Tres Pinos
