Tribal self-determination in the age of scarcity

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

The lessons gleaned from the Kiowa and C & L Enterprises decisions are twofold. First, loose drafting and imprecise articulation of a tribe's intentions create jurisdictional ambiguities that substantially increase the cost of the transaction and the risks associated with doing business with a tribe. Second, while the U.S. Supreme Court in Kiowa upheld the Tribe's immunity from suit, it did so with some misgivings on both the legal and policy principles. In C & L Enterprises the Court assembled the pieces necessary to constitute a voluntary waiver of immunity not only from the arbitration agreement, but also from the parties' extensive course of dealings and enmeshment in arbitration proceedings. From these decisions emerges a new waiver construct, one where the terms of the contract are only the starting point of the Court's analysis, and the facts of the nature of the business relationship between the parties may be determinative of whether a tribe's immunity effectively has been waived. (52) Although the waiver and enforcement of an arbitration award were limited to the arbitrated issues, a court may decide to give considerably more weight to the parties' course of dealings and construe general or vague contract language against the party seeking to shield itself from liability, (53) despite the canons of statutory interpretation that require a waiver of immunity be strictly construed and not implied. (54) At a minimum, immunity waivers should be drafted on a case-by-case basis and tailored to the particular transaction, and should include a clear delineation of the authority and means to enforce judgments and awards against the tribe. (55)

Comity considerations require exhaustion of tribal remedies for questions challenging tribal jurisdiction and waivers of tribal sovereign immunity. (56) This rule, premised on the federal Indian law principle that tribal sovereign immunity is jurisdictional in nature, is elementally different than raising immunity as a defense. (57) Tribal sovereign immunity implicates the court's subject matter jurisdiction, a threshold question that is properly presented by way of a motion to dismiss. "The issue of sovereign immunity is 'jurisdictional in nature' and must be resolved 'irrespective of the merits' of the underlying action." (58)

A person or entity is not "immune" from suit merely because that person or entity asserts a successful affirmative defense. (59) Rather, immunity from suit means, with some variation, that a plaintiff cannot legally file a lawsuit naming that person or entity as a defendant, (60) or that the person or entity is incapable of being sued, regardless of fault or wrongdoing. (61) In contrast, the affirmative defense of sovereign immunity does not involve a court's inherent disability to hear a case. It is a legal argument that a defendant, who otherwise is subject to suit, may assert to have the case or claim dismissed. (62) And when sufficiently established, immunity is an entitlement personal to the individual or entity claiming it to be immune from suit. (63) But by claiming immunity, a defendant nonetheless invokes the court's authority to adjudicate the defendant's immunity claim, a prerequisite to subject matter over the underlying claim. Another consideration is implicated in the defensive use of tribal sovereign immunity from suit: the use of immunity as a sword rather than a shield. When a tribe asserts its immunity defensively in litigation, it can do so at any time during judicial proceedings, even on appeal, while courts may consider a tribe's immunity from suit sua sponte. (64) Conversely, failure to raise sovereign immunity is not consonant with a waiver; a tribe must make a clear declaration that it intends to voluntarily submit itself to the court's jurisdiction. (65) However, when a tribe raises sovereign immunity defensively, some courts impose an additional consideration of "fair warning" of the tribe's immunity status to the plaintiff. (66)