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What Is Tribal Sovereignty?


The easiest way to think of sovereignty is to understand that the tribe is actually a separate entity, much like a separate country. That means that the tribe can pass its own laws, decide how it will govern, and how it will preserve its tribal lands and customs. A tribe can also determine whether, and to what extent, it will permit itself to be sued for civil damages. This concept is called the Waiver of Sovereign Immunity. Some tribes will not allow any lawsuits against it. The problem with that approach is that non-tribal members will not conduct business with the tribe if they have no recourse in case of a dispute over damages. Other tribes will set monetary limits on suits for damages. For example, a tribe could pass a tribal law stating that no matter how great the harm caused, the most that could be recovered was X amount of dollars. Some tribes do what most businesses and professions do.


They purchase liability insurance to protect themselves. For example, a tribe could waive sovereign immunity up to $1 million per claim. The tribe would then purchase liability insurance up to that limit. The tribes that want to do business with the general non-tribal public, for examples, tribal casinos, Smoke Shops, horse racing tracks, will insure themselves against damage claims in order to do business with non-tribal customers.


Are Tribal Courts Different Than State And Federal Courts?


Yes, they are. There may be pre-filing administrative claim requirements, which can vary from tribe to tribe. Statutes of Limitation, which is the time period during which suits must be filed, can be as long or as short as the tribe dictates. Again, this varies between tribes. Most cases are tried to a tribal judge as opposed to a jury, and there are very limited rights of appeal. Tribal law is generally applied both procedurally and substantively. Where that law is silent as to an issue, the court will often look to federal law and sometimes state law for guidance.


Where Should I File A Claim That Arose On A Reservation?


Because each tribe is different, it is best to consult the Tribal Code of Civil Procedure of that particular tribe for guidance. In some cases, an administrative claim must be filed as a prerequisite to the right to sue the tribe. There are time deadlines which apply and they are strictly construed against the claimant. Attorneys must be licensed and admitted to the particular tribal bar association before they are permitted to represent clients in tribal courts.


Can I Bring A Lawsuit Against A Native American Tribe Or A Member Of The Tribe?


Yes, you can. But as we discussed earlier, the tribe itself will set its own limitations on how and to what extent it will waive its sovereign immunity. It will also require you to sue it in its own court under its own laws and procedures.


Can We Challenge The Assertion Of A Tribal Court Jurisdiction?


The Doctrine of Sovereign Immunity confers exclusive jurisdiction on the tribe. However, there are some circumstances in which claims can be brought in the proper state or federal court. One example may be a situation where a non-tribal member is injured while on tribal land but by another non-tribal member. In that situation, the tribe may decline jurisdiction and the case would be heard in state or federal court.


Could Tribal Members Be Held Liable In A Car Accident In Washington That Happened On State Roads?


Yes. In Washington, it is common that US and state highways cross over tribal lands. In those situations, tribes often enter into agreements or compacts with a state which establish jurisdiction in state or federal court for claims arising out of the use of those roads. When claims involve tribal members which happen outside tribal boundaries, those tribal members are subject to the same laws, rules and regulations as those which apply to non-tribal members.


For more information on Claims Against Native American Tribes, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (425) 451-8333 today.




© 2018 by William J. Carlson, Inc., P.S. All rights reserved.

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