Title: Tribal sovereign immunity: An obstacle for non-Indians doing business in Indian Country? | Federal Reserve Bank of Minneapolis
Headings: Tribal sovereign immunity: An obstacle for non-Indians doing business in Indian Country?
Tribal sovereign immunity: An obstacle for non-Indians doing business in Indian Country?
What is sovereign immunity, and what does it mean in the tribal context?
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Tribal sovereign immunity: An obstacle for non-Indians doing business in Indian Country?
Defining tribal sovereignty?
Obscuring boundaries
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Content: A competing theory holds that notwithstanding original sovereignty, tribes today are only "quasi-sovereign." Tribes retain the attributes of sovereignty over their members and territory but only to the extent that sovereignty has not been limited or withdrawn by the federal government. In other words, tribes have been permitted to retain their sovereign status subject to the federal government's authority to revoke, limit or otherwise modify tribal immunity at its discretion. Not surprisingly, over time the federal government has defined and redefined the breadth of tribal sovereignty. For example, the Supreme Court in 1832 characterized tribes as distinct, independent political communities, retaining their original natural rights, with the exception of the ability to deal with foreign nations. 1/ Contrast this rather broad interpretation with the Supreme Court's later assertion in 1978 that Native American nations are only quasi-sovereign authorities whose powers are restricted consistent with their domestic dependent status. 2/
Without need to discuss further the merits of either theory, the law of tribal sovereignty as it has developed in the federal courts and by federal statutes, executive orders and treaties over the last two centuries now rests on several fairly well-settled tenets: 1) tribes have virtually unlimited authority over internal tribal affairs; 2) tribes are subject to the plenary, or absolute, power that Congress has over them; 3) tribes are presumptively immune from state law;