Introduction

Imagine sitting at your desk, and you get one of the following calls from an adjuster you deal with regularly:

1. "Linda, an explosion occurred at a residence on the reservation. Our insured is the contractor who installed the water heater. The insured is being sued in Tribal Court along with the Tribal Housing Authority and others. We need you to defend."

2 "Tony, an employee from the Tribal Casino located outside the reservation was driving a company vehicle and was involved in a motor-vehicle accident with our insured trucker. We have paid our insured trucker's property damage and property losses and would like to subrogate against the at-fault Indian driver and Casino. Can you assist?"

3. "Barb, our insured contractor did some work on the tribal council building reservation and is now being sued for negligence after a beam fell during construction injuring local workers. The workers have sued the tribe as the owner and our contractor in Tribal Court. We need you to defend our insured."

4. "Mike, we have a product-liability case involving a tire failure on a motor vehicle owned by the tribe and driven by a member Indian on the local reservation that ended up in a wrongful-death suit from the family. They sued the vehicle and tire manufacturers and the tribe for its failure to maintain the vehicle. We insure the tire manufacturer. We need you to defend our insured."

TRIBAL SOVEREIGN IMMUNITY

What do all of these scenarios have in common that you, as an insurance-defense litigator, should know? Tribal sovereignty and tribal sovereign immunity. Over the course of the next year or so, the Native Nations Law Task Force of the Defense Research Institute (DRI) will be providing a series of articles involving legal issues encountered throughout tribal and federal courts in civil (and perhaps criminal) cases. We start here with the basics—what is tribal sovereignty and what is tribal sovereign immunity; what are its origins, and what is its status today?

But first, did you know there are 573 federally recognized Indian tribes in the United States and over 600 First Nations in Canada?2 There are 326 reservations in the United States and more than 3,100 Indian reserves in Canada. 3 Additionally, issues related to federal recognition are not static. On December 20, 2019, Congress gave federal recognition to the Little Shell Tribe of Chippewa Indians of Montana, making it the 574th federally recognized Indian tribe in the United States. 4 Given the number and diverse locations of reservations and the above scenarios, you can see why issues related to sovereign immunity are important. 5

As you may know, sovereign immunity stems from the English common law. As attorney William Wood stated in his law review article:

The origins of the common law sovereign immunity doctrine are two-fold. On the one hand, English common law dating back to at least the Fourteenth century recognized the King's immunity from suit in his courts. As this monarchical immunity doctrine evolved, the notion of foreign sovereign immunity--the concept that a sovereign should enjoy protections in other nations' courts similar to those it receives at home-- began to develop...

By the time the United States was founded, sovereign immunity was, in the oft-quoted words of Alexander Hamilton, seen as something "inherent in the nature of sovereignty" that was recognized by the "general sense, and the general practice of mankind." The states that formed the new republic understood both themselves and their newly-formed national government to have sovereign immunity. Foreign nations, of course, were already in the group of entities recognized as having immunity. 6

The History of Indian Tribes as Sovereign Nations

During the time of the American colonies, the nations that sent explorers to the "new world," entered into treaties with the native nations thereby treating them as foreign sovereigns—a sovereign equal to themselves. When the United States adopted its Constitution in 1788, 7 the Constitution continued to recognize the Indian tribes as sovereign nations by allowing the President to enter into treaties with the Indians and by regulating commerce "with foreign Nations, and among the several states, and with the Indian Tribes." 8 Thereafter, the federal government exercised its constitutional authority by making contacts with Indians a subject of federal control. 9 Notably, the federal government at that time did not attempt to regulate the conduct of Indians among themselves—that was left entirely to the tribes.

In 1823, the United States Supreme Court recognized the Indians as having a legal right to the lands they occupied to the exclusion of third parties. 10 It noted that such occupancy could only be extinguished either "by purchase or by conquest." 11 In 1831, the Court recognized the Cherokee Nation as "a distinct political society separated from others, capable of managing its own affairs and governing itself...."12 The Court, however, did not recognize Indian tribes as "foreign states" but rather as "domestic dependent nations" whose relationship resembled that of ward to his guardian. This resulted in the doctrinal basis for the protection of the tribes by the federal government—a mix of sovereignty and guardianship, two concepts which, to civil practitioners, should be mutually exclusive.

The following year, in 1832, the Court decided the case of Worcester v Georgia, 31 US (6 Pet) 515 (1832). In that case, the Court reversed the convictions of missionaries who had been arrested by Georgian authorities for violating a Georgia law requiring non-Indians residing in Cherokee territory to obtain a license from the state governor. They appealed their convictions. The Court reversed the convictions after reviewing the history of Indian relations, the treaties with the Cherokees, and the Trade and Intercourse Acts. The Court found the several Indian nations were "distinct political communities, having territorial boundaries, within which their authority is exclusive." In other words, the Georgia law had no authority over the Cherokee nation—i.e. the Indian nations were sovereign. Thus, states had no jurisdiction over Indians or Indian nations—that remained a subject of federal control.

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Footnotes

1 A version of this article was originally published in For the Defense (March 2020).

2 National Congress of American Indians, http://www.ncai.org/about-tribes; https:// en.wikipedia.org/wiki/Indigenous_peoples_in_ Canada.

3 https://en.wikipedia.org/wiki/Indian_ reservation and https://en.wikipedia.org/wiki/ Indian_reserve.

4 https://www.cnn.com/2019/12/18/politics/ montana-little-shell-tribe-recognition-trnd/ index.html.

5 This article focuses on United States Federal Indian law and does not discuss Canadian Aboriginal policies or Canadian Aboriginal law. Note the difference in terminology between the United States and Canada: "Indian law" versus "Aboriginal law," respectively. Additionally, of note is that in Canada, the term "Aboriginal" is generally used instead of "Indian."

6 https://www.cnn.com/2019/12/18/politics/ montana-little-shell-tribe-recognition-trnd/ index.html.

7 The Constitutional Convention passed the Constitution in 1787. It was adopted on June 21, 1788, when New Hampshire became the ninth state to ratify the Constitution. https://constitutioncenter.org/blog/the-day-theconstitution- was-adopted.

8 Art. I, § 8, cl. 3 and Art II, § 2, cl. 2.

9 See e.g. The Trade and Intercourse Acts, 1 Stat.137 (1790); 2 Stat. 139 (1802); 4 Stat. 729 (1834).

10 Johnson v McIntosh, 21 US (8 Wheat) 543 (1823).

11 Id.

12 Cherokee Nation v Georgia, 30 US (5 Pet) 1 (1831).

Originally published by Michigan Defense Quarterly Vol. 36 No. 4 on May 28, 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.