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Gabriel S. Galanda
From: Gabriel S. Galanda, Indian Law in Idaho--what
You Should Know, 46-MAR Advocate (Idaho) 10 (March, 2003) (76 Footnotes
Omitted)
Over the past decade, the 42 federally-recognized Indian tribes in
Washington, Oregon and Idaho have become major players in the local,
state and national economies. Northwest tribes are aggressively creating
and operating new businesses in the areas of real estate development,
banking and finance, media, telecommunications, wholesale and retail
trade, tourism, and gaming. Consider these facts:
. Northwest tribes occupy more than 5.6 million acres of reservation
lands in Washington, Oregon and Idaho.
. Washington tribes currently employ nearly 15,000 Indian and
non-Indian employees. By comparison, Microsoft employs 20,000
Washingtonians.
. In 2001, Idaho tribes contributed $50 million to the state's
overall economy.
. Reservation businesses across the country generate $246 million in
tax revenue annually for state and local governments, and $4.1 billion
in annual tax revenue for the Federal Government.
. In 2001, national gaming revenues from such tribes as the Tulalip,
Warm Springs and Coeur d'Alene exceeded $12 billion.
A corollary to the dramatic increase in tribal economic development
is the increased interaction of tribes and non-Indian citizens who seek
business, employment, or recreation on Indian reservations. In turn,
legal matters between Indian tribes and non-Indians continue to
increase.
As Indian law issues now intersect both litigation and transactional
practices and virtually every niche of law, every attorney should be
cognizant of the general Indian law principles at work and be prepared
to answer common Indian law questions. For that reason, I thought it
appropriate to share with readers of The Advocate some legal principles
that govern relations between Indian tribes and non-Indians in Idaho.
Question: "What is Tribal
Sovereignty?"
Answer: Indian tribes are "distinct, independent political
communities, retaining their original natural rights" in matters of
local self-government. Although no longer "possessed of the full
attributes of sovereignty," tribes remain a "separate people,
with the power of regulating their internal and social relations."
In short, Indians possess "the right ... to make their own laws and
be ruled by them."
Much like the state government, tribal governments are elaborate
entities, consisting of executive, legislative, and judicial branches.
The office of the tribal chairman (like that of the state governor) and
the tribal council (the state legislature) operate the tribe under a
tribal constitution and code of laws.
Question: "Are Tribal Courts Different
than State and Federal Courts?"
Answer: Yes. Although Idaho tribal courts are modeled after Anglo-
American courts, Indian courts are significantly different. Tribal
judges, who are often tribal members, are not necessarily lawyers.
Tribal courts operate under the tribes' written and unwritten code of
laws. Most tribal codes contain civil rules of procedure specific to
tribal court, as well as tribal statutes and regulations. Such laws
outline the powers of the tribal court and may set forth limitations on
tribal court jurisdiction.
A tribe's code also includes customary and traditional practices,
which are based on oral history and may not be codified in tribal
statutes and regulations. Tribal judges consider testimony regarding
tribal custom and tradition from tribal elders and historians, who need
not base their opinions on documentary evidence as may be required by
state and federal evidentiary rules.
Tribal courts generally follow their own precedent and give
significant deference to the decisions of other Indian courts. However,
because there is no official tribal court reporter and because not all
tribal courts keep previous decisions on file, finding such caselaw can
be difficult. The opinions of federal and state courts are persuasive
authority, but tribal judges are not bound by such precedents.
Nevertheless, Idaho's state courts may extend full faith and credit to
valid tribal court orders, and both state and federal courts in Idaho
grant comity to tribal court rulings.
Before handling a matter in tribal court, an advocate must appreciate
the character of tribal courts, pay careful attention to tribal laws and
statutes, and understand the fundamental differences between tribal
courts and state and federal courts.
"Can We Sue the Tribe for Damages or
Equitable Relief?"
Answer: Probably not. Like other sovereign governmental entities,
tribes enjoy common law sovereign immunity and cannot be sued. An Indian
tribe is subject to suit only where Congress has
"unequivocally" authorized the suit or the tribe has
"clearly" waived its immunity. There is a strong presumption
against waiver of tribal sovereign immunity.
The doctrine of sovereign immunity shields tribes from suit for
monetary damages and requests for declaratory or injunctive relief.
However, tribal government officials who act beyond the scope of their
authority are not immune from claims for damages.
Tribes are also immune from the enforcement of a subpoena, e.g., to
compel production of documents. Further, a court cannot compel the
Department of the Interior (DOI) or the Bureau of Indian Affairs (BIA)--
fiduciaries for the benefit of tribes--to comply with the Freedom of
Information Act (FOIA) and release documents passed between tribes and
the agencies unless the communications involve "tribal interests
subject to state and federal proceedings." Arguably, if a tribe is
immune from state or federal suit, documents exchanged between tribes
and DOI or BIA regarding "tribal interests" or "matters
internal to the tribe," are exempt from disclosure under FOIA.
Tribal immunity generally extends to agencies of the tribe such as
tribal casinos and other business enterprises. As many Idaho citizens
flock to tribal casinos, slips-and-falls and other tort claims arising
on tribal reservations have increased. Nevertheless, courts routinely
dismiss personal injury suits against tribes for lack of jurisdiction.
Therefore, in considering whether to sue a tribe on behalf of an
injured party, you must closely evaluate issues of sovereign immunity
and waiver. Unless you can show clear evidence of tribal waiver or
unequivocal Congressional abrogation, do not waste your time, your
client's money, or a court's resources by filing suit. A judge will
simply dismiss the plaintiff's claims for damages for lack of subject
matter jurisdiction.
Question: "Can We Sue the Tribe to Enforce a Contract?"
Answer: Probably not. Tribes retain immunity from suit when
conducting business transactions both on and off the reservation.
Generally, a tribe can only be sued in contract if the agreement
explicitly waived tribal immunity; a waiver will not be implied.
Nonetheless, the U.S. Supreme Court recently held that a contractual
agreement to arbitrate disputes constitutes a clear waiver of immunity.
Increasingly, tribes will agree to limited waivers of immunity. Some
tribes set up subordinate entities whose assets, the tribes acknowledge,
are not immune from suit, levy, or execution (although assets not held
by the entity remain protected by immunity).
So, if you are asked to sue a tribe for breach of contract, you
should first consider the entity with which your client contracted--i.e.,
a tribe, which is likely immune from suit; or a subordinate entity, for
which the tribe may have waived its immunity. If you are asked to create
a contract with a tribe, you must explain to your client that there may
not be any remedy available in the event of a contractual breach. You
should then negotiate with the tribe to reach a meeting of the minds
with respect to the immunity issue. Again, some tribes will agree to a
limited waiver.
Question: "Can I Sue the Tribe for Employment Discrimination?"
Answer: Probably not. Both Title VII35 and the Americans with
Disabilities Act (ADA) expressly exclude Indian tribes. Similarly, the
Ninth Circuit Court of Appeals has held that tribes are immune from suit
under the Age Discrimination in Employment Act (ADEA). Tribes are also
immune from suit under 42 U.S.C. 1983. Likewise, state discrimination
laws do not apply to tribal employers.
Tribally-owned entities are generally not subject to state and
federal discrimination laws either. Tribal officials are also immune
from suit arising from alleged discriminatory behavior, so long as they
acted within the scope of their authority. In short, any employment suit
against a tribe or its officials based upon federal or state
discrimination law will likely be dismissed for lack of subject matter
jurisdiction.
Idaho tribes have become one of the nation's largest employers. As a
result, non-Indians' employment records and documents concerning tribal
employment practices are increasingly becoming the focus of discovery,
even in litigation against non-tribal entities. If the employee is a
party, his or her employment records are discoverable if they are in the
employee's custody or control. However, under the doctrine of sovereign
immunity, a tribe cannot be forced to produce the employee's records. By
the same token, a court cannot compel a tribe--or the Bureau of Indian
Affairs--to provide documents about the tribe's employment practices.
Question: "Can I Sue the Tribe for Violation of Labor
and Employment Laws?"
Answer: Maybe. The circuits are split regarding the application of
federal regulatory employment laws to tribal employers. The Ninth
Circuit has applied the Occupational Safety and Health Act (OSHA) and
the Employee Retirement Income Security Act (ERISA) to tribes, reasoning
that such statutes of general applicability govern tribal employment
activity because Indian tribes are not explicitly exempted from the
laws. The Seventh and Second Circuits have adopted the Ninth Circuit's
rationale and also applied OSHA and ERISA to tribes, and the Seventh
Circuit leans toward application of Fair Labor Standards Act (FLSA) to
tribal employers.
Conversely, the Tenth and Eight Circuits have refused to apply to
tribes such laws as OSHA, ERISA, FLSA, and the National Labor Relations
Act (NLRA), because doing so would encroach upon well-established
principles of tribal sovereignty and tribal self-governance. While the
Ninth Circuit's rulings that apply federal employment statutes of
general applicability to tribes are binding in Idaho, and the decisions
of the Seventh and Second Circuits serve as persuasive precedent, state
labor laws and workers' compensation statutes remain inapplicable to
tribal businesses.
Question: "Where Should We File a Claim
that Arises on the Reservation?"
Answer: It depends. Subject matter jurisdiction of tribal, state or
federal courts depends largely upon (1) whether the defendant is an
Indian or non- Indian person or entity; and (2) whether the *12 act
occurred on Indian fee or allotted lands, non-Indian-owned reservation
lands, or even a state right-of-way on the reservation. These two
complex issues should be the first area of inquiry for any question
regarding civil jurisdiction over a dispute arising on a reservation.
State courts have jurisdiction over lawsuits between non-Indians
arising on the reservation. However, jurisdiction over a suit by any
party--Indian or non-Indian--against an Indian person, a tribe, or
tribal entity for a claim arising on the reservation, lies in tribal
court. So, if your client is prepared to show clear or unequivocal
waiver of immunity, you should file any tort claims against the tribe
that arose on Indian lands or in tribal casinos, in tribal court.
In particular, state courts have jurisdiction over any dispute
arising from an auto accident occurring on a state right-of-way through
the reservation, including a dispute between non-Indian citizens, and a
suit by an Indian against a non-Indian. As such, common claims that
arise on Idaho state highways running through reservations should be
brought in state court.
Question: "Can We Be Sued in Tribal
Court?"
Answer: It depends. Generally, a tribal court can only assert
jurisdiction over a claim against a non-Indian person or entity when
"necessary to protect tribal self-government or to control internal
relations." Essentially, a tribal court only has jurisdiction over
the reservation activities of non-Indian parties "who enter
consensual relationships with the tribe ... through commercial dealing,
contract, leases, or other arrangements."
State courts may exercise jurisdiction over a non-Indian person or
entity for a claim arising on the reservation. Federal courts may assert
jurisdiction over a claim against a non-Indian party based upon
reservation activities if there is federal question jurisdiction, or
diversity jurisdiction. Thus, absent a contractual relationship with the
tribe, non-Indian parties can only be sued in state or federal court
.
Question: "Can We Challenge the
Assertion of Tribal Court Jurisdiction?"
Answer: Yes. If sued in tribal court, non-Indian persons or entities
can challenge the tribal court's assertion of civil jurisdiction in
federal court. However, federal courts typically stay their proceedings
to allow the tribal court to determine its own jurisdiction. Thus,
before you challenge a tribal court's assertion of jurisdiction in
federal court, you must first exhaust tribal remedies.
In any case, a tribal court first decides jurisdiction over
non-Indian parties. If the tribal court rules that it has jurisdiction,
it proceeds with the case. If the federal court later agrees that the
tribal court had jurisdiction, it will not relitigate the case.
Therefore, you should thoroughly present the merits of your client's
case to the tribal judge, as you and your client may not have a
subsequent opportunity to do so in federal court. In doing so, you
should be ever mindful of the unique aspects of tribal courts described
above.
Question: "Can I Be Prosecuted in
Tribal Court?"
Answer: It depends. Tribal courts do not have general criminal
jurisdiction over non-Indian crimes occurring on the reservation.
However, tribal courts do retain the power to exclude any unwanted
person from their reservations.
Jurisdiction for non-Indian criminal offenses on the reservation lies
with state or federal courts: Crimes committed on the reservation by
non-Indians against non-Indians are subject to state jurisdiction.
Federal courts have jurisdiction under the General Crimes Act over
reservation crimes committed by non-Indians against Indians or Indian
"interests" (e.g., property).
In 1990, the US Supreme Court ruled in Duro v. Reina, that state or
federal courts also had jurisdiction over on-reservation crimes of
Indians who are not members of the tribal community in which the crime
occurred. However, Congress quickly overrode Duro, and affirmed the
"inherent power of Indian tribes ... to exercise criminal
jurisdiction over all Indians."
The Ninth Circuit upheld the statute--commonly known as "the
Duro fix"--in an opinion issued in 2001. Thus, absent federal
statutes that limit tribal jurisdiction, Idaho tribal courts retain
jurisdiction over crimes committed by any Indian (member or nonmember)
on the reservation.
Conclusion
Idaho is witnessing firsthand both the tremendous rise in tribal
economic development, and an array of legal disputes between Indians and
non-Indians. Indeed, Indian law principles impact litigation and
transactional practices, and intersect general tort, contract,
employment, and criminal law. Further, Indian law issues implicate
tribal, state and federal court practice and challenge attorneys' common
understandings of procedural and jurisdictional principles. For these
reasons, it is vital that you recognize and understand the Indian law
issues that you will inevitably encounter in your practice in Idaho.
[a1]. GABRIEL S. GALANDA is an associate with the Seattle-Portland
law firm Williams, Kastner & Gibbs, PLLC. He is a descendant of the
Nomlaki and Concow Tribes, and an enrolled member of the Round Valley
Indian Confederation in Northern California. He serves as President of
the Northwest Indian Bar Association and chair-elect of the Washington
State Bar Association Indian Law Section. |
