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: For example, in 1953, Congress gave six states 3/ authority under Public Law 280 4/ to assume state criminal and civil jurisdiction over tribal members in Indian Country, and it authorized all other states to assume civil jurisdiction, of which 10 did. Although the act only authorizes state courts to assert jurisdiction and not the application of state regulatory law, 5/ it significantly diminished tribal immunity. Fifteen years later, in a partial reversal, Public Law 280 was amended to provide that thereafter, no state could assume civil jurisdiction under the act without the approval of tribal membership at an election. In addition to jurisdictional rights granted under Public Law 280, the Supreme Court has applied several tests when making regulatory or civil jurisdictional determinations, such as the preemption or infringement tests, under which states have been given, for example, specific taxation rights, rights to regulate on-reservation fishing and rights to require tribal members to acquire licenses to sell liquor on reservations. Sovereignty issues involving land interests in Indian Country present similar challenges in proposed business transactions between tribes and nontribal entities. Ownership may include tribal trust lands, tribal fee lands, allotted trust lands held by individual Indians, fee land held by non-Indians, federal public land, and county and state lands, often resulting in adverse and competing tribal, state and federal interests. Tribal, state and federal jurisdictional authority varies with each. The nature of the property involved in a business transaction will determine whether, for example, a state court judgment can be enforced against real property in Indian Country. This discussion illustrates some of the sovereignty issues the non-Indian investor, lender or developer may face when doing business in Indian Country. But perhaps the real obstacle posed by tribal sovereignty is not the uncertainty that state or federal law will apply or that disputes will be resolved in state or federal court but rather the lack of understanding of or confidence in tribal law and the tribal court systems.