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: If a tribe operates a business as a separate entity, however, the business may be open to adverse legal action in state court and under state law. Obscuring boundaries
In addition to the organizational intricacies that obscure the boundaries of tribal immunity are the regulatory authority and jurisdictional issues. As a general principle of tribal sovereignty, state laws have no force in Indian Country, and state courts are without jurisdiction to hear lawsuits brought by non-Indians against tribes, tribal entities and tribal members with respect to transactions arising on reservations. Of course, there are numerous exceptions. Whether a tribe, state or the federal government has regulatory or civil jurisdiction over Indians or non-Indians on or off reservation lands depends on a variety of factors, including whether Congress has expressly granted authority to one or more sovereigns in a particular area. 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.