FREE CONSULTATION • CALL US 24 / 7 212-994-7777

Native Peoples Law

What is Tribal Sovereignty?

There are two types of laws which govern Native Americans in the United States. The first type is the United States Federal and State laws which apply to all United States residents.

The second type of law is Native American law, which only applies to Native American tribal groups. The interactions between United States laws and Native American reservation laws produce a unique legal and business environment for Native Americans.

Tribal sovereignty refers to Native American tribes being distinct, independent political communities that retain their original rights in matters of local self-government. Although they are no longer completely sovereign, Native American tribes remain a separate people, with the power of regulating their own internal and social relations.

Native Americans, for all practical purposes, possess the right to make their own laws and to be ruled by them. In order to perform their own government responsibilities, Native American tribes have their own:

  • Legislatures, the tribal council;
  • Courts, the tribal courts; and
  • Governors, the tribal chairman.

There are some common legal issues which arise in tribal sovereignty cases. These often include issues of criminal jurisdiction over nonmembers of the tribe.

The current view of the Supreme Court prohibits tribal courts from exercising jurisdiction over nonmembers. The reasoning behind this is nonmembers have not expressly consented to tribal jurisdiction.

What are the Limitations On Tribal Sovereignty?

Congress, however, does have the ability to limit tribal sovereignty in the United States. Unless a power is removed by a treaty of a federal statute, the tribe is assumed to possess it.

Currently, federal policy in the United States recognizes this sovereignty as well as governmental relations between the United States and Federally recognized tribes. Most Native American land, however, is held in trust by the United States.

Because of this, federal laws still regulate the economic rights of tribal governments as well as political rights. In many cases, tribal jurisdiction over individuals and entities within tribal borders are at issue.

Although tribal criminal jurisdiction over Native Americans is fairly well settled, tribes are still attempting to achieve criminal jurisdiction over non-Native American individuals who commit crimes in Native American country. This is due to, in large part, the 1978 Supreme Court ruling in Oliphant v. Suquamish Indian Tribe that Native American tribes lack the internet authority to arrest, try, and convict a non-Native American who commits crimes on Native American lands.

Can Native American Tribes be Sued?

Similar to other sovereign governments, Native American tribes enjoy common law sovereign immunity and cannot be sued. Native American tribes are subject to being sued only in cases where Congress has unequivocally authorized the lawsuit or in a case where the tribe has clearly waived its immunity.

A strong presumption exists against the waiver of tribal sovereign immunity. The doctrine of sovereign immunity shields a Native American tribe from:

  • Monetary damages;
  • Declaratory relief, or the enforcement of contract rights; and
  • Injunctive relief.

It is important to note, however, that Native American tribal government officials who act beyond the scope of their authority are not immune from claims for damages. Although suing a Native American tribe itself is often difficult or even impossible due to sovereignty issues, immunity does not always extend to individuals who are living on a reservation.

The ability to bring a lawsuit against a Native American individual or entity is a matter of subject matter jurisdiction. Subject matter jurisdiction is a court's authority to hear a case based on the subject matter involved in the case. For example, contract law is governed by the individual state laws and, therefore, state courts have the authority when hearing a case concerning a contract issue.

In the past, state laws have not applied to Native Americans on reservations. In recent years, Congress has listed specific states in which an American court is permitted to process a civil lawsuit between a Native American and a non-Native American.

If an individual's state has been authorized to do so, contract and tort laws such as personal injury are not enforceable against Native Americans in state court. In most cases, state criminal laws are enforceable on Native American lands. Regulatory laws such as speeding and taxes, however, are not.

Can a Non-Native American be Sued in Tribal Court?

In the majority of cases, a Native American tribal court is only permitted to assert jurisdiction over a claim against a non-Native American individual or entity when it is necessary to protect tribal self-government or to control internal Native American relations. Therefore, a tribal court only has jurisdiction over the reservation activities of non-Native American parties who enter into consensual relationships with the tribe through:

  • Commercial dealings;
  • Contracts;
  • Leases; or
  • Other arrangements.

If there is not a contractual relationship with the Native American Tribe, a non-Native American party can only be sued in federal or state court.

What is Native American Gaming Law?

Native American gaming laws reflect a compromise between the rights of Native American tribes to engage in gaming activities without state intervention and the interest of states in regulating activities which occur within the state boundaries. This balance of power is represented by the Indian Gaming Regulatory Act (IGRA).

What is the Indian Gaming Regulatory Act (IGRA)?

The Indian Gaming Regulatory Act (IGRA) is administered by the National Indian Gaming Commission. It provides the statutory framework for Native American gaming.

The IGRA applies to all Native American lands, which are defined as all land within the limits of any Native American reservation. Pursuant to the IGRA, Native American gaming is divided into three categories:

  • Class I gaming, which includes social and traditional games and is within the exclusive jurisdiction of Native American tribes;
  • Class II gaming, which includes bingo and games similar to bingo that can be operated by a tribe if it is located in a state which permits that type of gaming and if it is authorized by tribal resolution or ordinance;
  • Class III gaming, which includes all types of gaming that is neither class I nor class II gaming. It is by far the most important type of gaming for tribal enterprises.
  • Class III gaming typically involves the Native American Casinos. This type of gaming must occur within a state which permits gaming for any purpose, by any individual, or entity.
  • Class III gaming must also be authorized by Native American tribal resolution or ordinance. In addition, a contract must be negotiated between the Native American tribe and the state which defines how the Class III gaming will be conducted.
  • Do I Need an Attorney Specializing in Native American Law?

Yes, it is essential to have the assistance of a government lawyer for any issues you may have involving Native American law. Due to the unique circumstances of tribal sovereign immunity, an attorney is essential for any case which involves Native American tribes.

In addition, it is also wise to consult with an attorney prior to entering into any business arrangement with a Native American tribe. The contract rights of the parties involved may be limited depending on the transaction.

Your attorney can review your situation, inform you of your rights, as well as preserve any legal remedies which may be available to you. Having an attorney on your side is essential when dealing with any issue related to Native American laws.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.