AS THE POWER AND INFLUENCE OF INDIAN (NATIVE AMERICAN) TRIBES RISES THEIR ACCOUNTABILITY DECLINES
Indian (Native American) tribes are considered governments with most of the rights and privileges of the states and federal government. Further, Indian tribes are expanding their governmental activities to include private enterprises like shopping malls, entertainment (casinos), infrastructure, energy production and more.
Many Indian tribes have their own court system and governmental agencies. The governmental agencies that the tribes in Oklahoma have include law enforcement and child welfare. The powers and reach of these tribal agencies are growing at a quick pace. For example, recently in Tulsa, Oklahoma the Creek Nation Light Horse Tribal Police have been pulling citizens over in front of their casino on Riverside Drive.
Additionally, on an allegation of child neglect, the tribes have the authority to take non-tribal citizen children into their protective custody if the child has even a small amount of Indian blood. The child’s parents do not have to be tribal citizens to have their children taken into tribal custody. As long as one parent has even a small amount of tribal blood the tribe has jurisdiction to take the child into their protective custody. A parent without tribal blood cannot prevent this from happening as long as the tribe alleges child neglect or abuse.
With these enormous governmental powers the tribes have very little accountability. A person can only vote in tribal elections if they can prove a certain level of tribal heritage and then becomes a citizen of that tribe. Therefore, tribes are engaging in enormous governmental and business activities with state and U.S. citizens that the tribes have zero accountability to.
The vast majority of people that tribes do government or commercial business with cannot vote in their elections, much less run for office in the tribal governments. To make matters much worse, tribes have immunity, therefore they cannot be sued. If the tribe breaches a contract, unlawfully deprives a person of money or injures a person they have almost no accountability in the court system of the federal and state governments and a slight bit more but still very little in the tribal courts.
The Oklahoma Supreme Court has recently taken what little accountability the tribes have in the Oklahoma Court system and snuffed that accountability out. In the recent case of Sheffer V. Buffalo Run Casino, Pte, Inc. 2013 OK 77, 315 P.3d 359 the Oklahoma Supreme Court eliminated the preemption doctrine as a means to pierce tribal sovereign immunity in any court, including the tribal courts.
Traditionally, Indian tribes, like states and the federal governments, have immunity from lawsuits. This governmental sovereign immunity originated in old English common law. In constitutional monarchies the sovereign is the historical origin of the authority, which creates the courts. Thus, the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign for the protection of his or her subjects.
With this tradition as a backdrop the Unites States was created with the ratification of the U.S. Constitution on June 21st, 1788. The United States Constitutionspecifically mentions the relationship between the United States federal government and Indian Tribes three times. Article I, Section 2, Clause 3 states that “Representatives and direct Taxes shall be apportioned among the several States … excluding Indians not taxed.” Article I, Section 8 of the Constitution states that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes”. The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above.
In interpreting the relationship between the federal and state governments and the Indian governments, using the common law tradition of governmental sovereign immunity and the provisions of the Constitution addressing Indians, the U.S. Supreme Court handed down three cases in the 1820’s and 30’s. One of these cases is Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). The opinion found unconstitutional a set of statutes in Georgia that regulated Indians on Indian land. The ruling, and the accompanying dicta, by Chief Justice John Marshall, sets out the relationships between the Federal Government, States and Indian Tribes.
Put simply, the rule is that Indian Tribes cannot be sued in any court unless the federal congress has passed, and the president has signed, legislation waiving the tribe’s immunity or the tribe itself has waived its immunity.
Because of this legal history and constitutional interpretation, if any of the governmental and business activities that the tribes engage in causes a legal wrong, the tribe will likely not be held accountable for it. This means that children who die from neglect while in the custody of the tribe and their families cannot recover for wrongful death.
Tribal employees who cause car accidents will not be responsible in court for the accident. If a victim of a car accident wants to recover from a tribal employee that caused the accident, they will only recover if the tribe has enacted a governmental tort claim act. A governmental tort claim act is a law passed through the tribal government that waives tribal sovereign immunity when the tribe is liable for a tort. Very few tribes have passed these laws.
Similarly, if a police officer violates a person’s rights or causes a legal wrong to anyone, then the only way that officer or the tribe will be accountable in civil court is if the Indian Civil Rights Act applies.
The Indian Civil Rights Act was passed by the U.S. congress in 1968 and allows for a person wronged by the acts of a tribe to recover from the tribe in tribal court. But only if the wrong was a U.S. constitutional violation that is enumerated in the Indian Civil Rights Act. The Indian Civil Rights Act does not enumerate all of the U.S.’s constitutional rights. So if a tribal law enforcement office violates your constitutional rights, you may only recover if the violation is enumerated in the Indian Civil Rights Act and you may only recover in tribal court. If the tribe does not have a tribal court you may be able to recover in a federal court. It cannot be stressed enough that the constitutional violations enumerated in the Indian Civil Rights Act are limited. Additionally, to bring a case against a tribe in a tribal court is a daunting task.
With tribes expanding their presence into casinos, shopping centers and entertainment venues, infrastructure and construction and energy production, the potential wrongs the tribes can commit are enormous. A person who is legally wronged by a tribe will have no method, or a very limited one, by which to remedy that wrong. To solve this dilemma the U.S. Congress will have to pass and the President will have to sign legislation, or the tribes will have to enact laws waiving the tribe’s sovereign immunity and finding that the tribes can be liable for legal wrongs like torts, constitutional violations, civil rights and breach of contract.
Every so often a court will rule that the tribe does not have sovereign immunity in a particular situation, but that ruling will eventually be overturned and reverted back to the old rule that has as much credence today as ever in American history. That rule being that Indian Tribes cannot be sued unless the U.S. Government, through legislation, or the tribe through its legislative process, enacts a law that waives the tribe’s sovereign immunity. Most tribes have not done this and the waiver of immunity that the federal government have enacted are very limited.
Currently the culture among Indian Tribes is one that holds its sovereign immunity to a high level of loyalty, sometimes appearing to have the zeal of a strongly held political, or even religious, view. For the tribes to decide to hold themselves accountable it is going to take a catastrophe, or several, of high visibility to the public for the pressure to be applied to the tribes for them to voluntarily relinquish some of their sovereign immunity. If such public pressure is mustered, it will likely cause the federal government to move before the tribes do.
At the Norwood Law Firm we have experience dealing with the various tribes and their various branches of government. If you have been injured or had some other legal wrong committed against you by an Indian Tribe or its employees please call for a consultation.