Tribal sovereign immunity: What is it, and what are its limitations?

This month, Kathryn Seaton (KS), Montana Legal Services Association, and Jessie Big Knife (JBK), Chippewa Cree Tribal Attorney, discuss the ins and outs of tribal sovereign immunity.
KS: Before we dive into a discussion on tribal sovereign immunity, let’s start with the concept of sovereignty. What is sovereignty? What is its relationship and importance to tribes?
JBK: The generally accepted definition of sovereignty is the inherent right or power to self-govern. Sovereignty is important to tribes, and tribes have exercised their sovereignty since before colonization. Tribes had their own concepts of sovereignty that pre-dated colonization. For example, the Chippewas and Crees were nomadic and moved from different areas for different reasons. This was a form of sovereignty that we exercised.
KS: What is the source of tribes’ sovereignty?
JBK: Sovereignty is inherent and comes from the people governed. It started when the United States first made contact with tribal nations. Tribal sovereignty has always been recognized by the United States government. That recognition can be seen through treaties, tribal constitutions and corporate charters, tribal laws, ordinances, and the government-to-government relationship between the federal government and tribes. The United States is a tri-sovereign nation — there is tribal sovereignty, federal sovereignty, and state sovereignty.
KS: One aspect of tribal sovereignty that may be confusing to practitioners, is the limited nature of that sovereignty. Many practitioners are aware of case law that tribes are “domestic dependent nations.” See Cherokee Nation v. Georgia, 30 U.S. 1 (1831). This may lead to a misunderstanding that, because tribal sovereignty is limited, it is somehow lesser than state or federal sovereignty. However, all sovereignty is limited. Federal sovereignty is limited by the Tenth Amendment. State sovereignty is limited by the Bill of Rights. It’s not unique for tribes’ to have limits on their sovereignty. 
JBK: That shows how crucial it is to continue to educate those who may not fully understand tribal sovereignty. As practitioners, we play a key role in that process of educating individuals.
KS: Moving to sovereign immunity specifically, in what court systems are tribes immune from suit?
JBK: Tribal sovereign immunity extends to federal, state, and tribal courts. Can a tribe be sued in any of those courts? The answer is yes, if the tribe expressly authorizes it or consents to the suit, but unless the plaintiff can point to an express waiver by the tribe, or an abrogation by Congress, the case will be dismissed based on sovereign immunity.
KS: In your experience, do you think tribes are more likely to consent to be sued in state, federal, or tribal court?
JBK: I most often see consents to tribunals, whether it’s state, federal, or tribal, in the context of economic development opportunities and contracting with non-tribal entities. Typically we grant limited waivers through key negotiations. Within our contracts we stipulate to Tribal Court.
KS: What about suing an official? Does tribal sovereign immunity extend to suing officials in their official capacity? In their individual capacity? What about if the official is acting outside of their authority?
JBK: Generally, tribal sovereign immunity will extend to a tribal official acting in their official capacity and within the scope of their authority. Over the last decade, we’ve seen a proliferation of lawsuits where tribal officials are sued in their official or individual capacity, as an attempted end-run around tribal sovereign immunity. In Lewis v. Clark, the Supreme Court clarified that identification of the real party in interest dictates what immunities may be available. 137 S. Ct. 1285 (2017). In that case, a tribal official sued in his individual capacity for tortious actions that occurred outside the reservation boundaries was unable to assert tribal sovereign immunity as a defense, because it was the official and not the tribe who was the real party in interest in the case. This was regardless of any indemnification provisions applicable to the employee.
KS: What determines if a tribal business enterprise enjoys the same immunity as the tribe?
JBK: Sovereign immunity extends to tribal businesses that are considered an arm-of-the tribe. The Tenth Circuit set out a factor test in Breakthrough Mgmt. Group, Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173 (10th Cir. 2010). The Court enumerated six factors to consider: “(1) the method of creation of the economic entities; (2) their purpose; (3) their structure, ownership, and management, including the amount of control the tribe has over the entities; (4) the tribe’s intent with respect to the sharing of its sovereign immunity; . . . (5) the financial relationship between the tribe and the entities; [and (6)] the policies underlying tribal sovereign immunity and its connection to tribal economic development. . .” Id. At 1187. The Fourth Circuit has adopted this test (Williams v. Big Picture Loans, LLC, 929 F.3d 170 (4th Cir. 2019)), as well as the California Supreme Court (People v. Miami Nation Enterprises, 2 Cal. 5th 222 (Cal. 2016)). We’re seeing that this is becoming the generally accepted test.
KS: Does tribal sovereign immunity extend to actions taken by tribal entities outside of a reservation?
JBK: Sovereign immunity will extend to commercial activities conducted off the reservation. There are a line of Supreme Court cases that have reaffirmed this. The first case to touch on this was Kiowa Tribe v. Manufacturing Technologies, 523 U.S. 751 (1998). Recently, Michigan v. Bay Mills reaffirmed this holding that tribal sovereign immunity extends to commercial activities that arise off the reservation. 572 U.S. 782 (2014). This holding is on the hot seat right now, with a couple of strong dissents taking issue with the idea, so we will have to see how this law develops going forward.
KS: Can tribal sovereign immunity be waived? How? By whom?
JBK: Congress can abrogate sovereign immunity, but it must be done clearly and unequivocally, not inferred. Tribes can expressly waive their immunity as well.
:KS: What is the relationship between sovereign immunity and subject matter jurisdiction?
JBK Sovereign immunity will serve to divest a court of subject matter jurisdiction and will compel dismissal. It is more than an affirmative defense, it’s an absolute jurisdictional bar. Unless the plaintiff can establish a waiver, the court is required to dismiss the case. That is our position.
KS: From your dual perspective as an attorney and a tribal member, what is the importance of sovereign immunity to tribes?
JBK: Sovereign immunity allows us to pursue economic development. It also protects tribal assets from needless and unwarranted litigation. As a tribal member, I feel it is important to protect tribal sovereign immunity to protect our tribal way of life. Our government and community gives us a place to practice and perpetuate our cultural values. We can embrace our identity through practicing our culture, singing songs, harvesting, among other things. Tribal sovereignty and tribal sovereign immunity are tools in the toolbox that tribes have to protect and preserve our way of life.