Tribal self-determination in the age of scarcity

South Dakota Law Review, Fall, 2009 by Patrice H. Kunesh

I. INTRODUCTION
II. EVOLVING TRENDS: TRIBAL SOVEREIGN
      IMMUNITY--RULES AND CONFLICTS
III. TRIBAL PRACTICES
      A. WAIVER BY TRIBAL CONSTITUTION
      B. WAIVER BY ENABLING LAW
      C. WAIVER BY TRIBAL LAW
      D. WAIVER IN TRIBAL CHARTERS
IV. REAL WORLD OBJECTIVES

I. INTRODUCTION

Tribal sovereignty and the jurisdictional counterpart of tribal sovereign immunity from suit are the bedrock principles of tribal self-determination. (1) The contours and qualities of these principles in contemporary federal Indian law jurisprudence, however, are elusive; a sign perhaps of the weighty re-evaluation underway in the United States Supreme Court of their fundamental premises. (2) As recently observed by a prominent Indian law scholar, "Indian rights are losing the limited protection they had as the Court forsakes foundation principles and expands the ambit of control over Indian tribes to include not just congressional but also judicial power to redefine and restrict tribal sovereignty." (3)

Thirteen years after President Nixon heralded in the new era of tribal self-determination, Congress passed the Indian Gaming Regulatory Act of 1988, a federal law unsurpassed in its transformation of Indian country except for the General Allotment Act of 1887. (4) Once fairly insular and inwardly looking, the immediate and tremendous success of gaming propelled many tribes into the world of high finance and political pandering. (5) It also engendered a profusion of tribal lawmaking and a dynamic exercise of tribal sovereignty both within and beyond the reservation. While these efforts are intended to strengthen the tribal government and improve the capacity for good governance and economic development, the extension of tribal sovereignty, particularly over activities of non-Indians, has attracted the attention of the Supreme Court, which has expressed serious concerns about the reach of tribal powers. According to Justice Stevens who is plainspoken in his misgivings about the continuing validity of tribal sovereign immunity in modern-day business transactions, "[t]here are reasons to doubt the wisdom of perpetuating [tribal immunity] ... beyond what is needed to safeguard tribal self-governance. This is evident when tribes take part in the Nation's commerce. (6) Justice Thomas similarly has harkened that "the time has come to reexamine the premise and logic of our tribal sovereignty cases...." (7) To be sure, these pronouncements foretell a new jurisprudential posture in the Supreme Court that is "veering away from any strong notion of retained inherent sovereignty." (8)

Today, tribes throughout the country stand at the intersection of two major political and economic forces, either of which possesses the intensity to relegate time-honored principles of tribal sovereignty to mere federally-ordained dictates. The first is the U.S. Supreme Court's inclination to reshape the contours of tribal sovereignty by abandoning a formalistic adherence to these foundational principles of federal Indian law for a more functional approach involving a complex balancing of state and tribal political interests, with the scale tipping more frequently in favor of the state's interests, or at least against the tribe's interests. (9) The second is the current global economic crisis and its repercussions on tribal economies. Many tribes already have suffered a backlash from the failing economy (10) and more tribal economies undoubtedly will be debilitated by severe pressures on the federal budget. Such scarcity of resources raises somber questions about the possible diminishment in federal responsiveness to tribal needs.

This article outlines some of the broad issues concerning tribal sovereignty at this juncture of unpredictable jurisprudential trends and our nation's economic predicament, both of which are fraught with untenable balancing tests and competing policy interests. Tribal sovereign immunity from suit, a vital element of tribal sovereignty, is most susceptible to judicial curtailment, especially when haphazardly deployed in circumstances where tribes compete in the national economic mainstream. The author's following comments and observations on this topic are premised on personal experience as in-house counsel to a successful gaming tribe whose rise to fame and fortune triggered wide-ranging law and policy development, which now has been tempered by the worldwide economic crisis. (11) The purpose here is to encourage a discourse about these issues, not to impart a particular opinion or conclusion. To begin this discussion, a brief sketch of evolving trends in tribal sovereignty will help illustrate the tensions in the law and policy.

II. EVOLVING TRENDS: TRIBAL SOVEREIGN IMMUNITY-RULES AND CONFLICTS

Contemporary tribal sovereignty represents an evolution of three historical principles concerning tribal powers. (12) First, prior to colonial contact tribes possessed full and complete inherent authority, or, as described by Felix Cohen, the principal architect of the precepts of modern Federal Indian law, "all the inherent powers of any sovereign state." (13) Second, complete and unconditional tribal sovereignty was eroded through the baneful course of colonization. Redesignated as "domestic dependent nations," (14) tribes no longer possessed external political authority to make treaties with foreign nations, and their judicially modified guardian-ward relationship with the federal government (15) increasingly subjected tribes to the power of the federal government. This dependent status markedly figures in many recent U.S. Supreme Court decisions which further divest tribal powers particularly over nonmember activities occurring on non-Indian fee land within the reservation. (16) Third, Executive Branch treaties and congressional legislation co-extensively impose additional limits on tribal powers. (17)