[nativestudies-l] NEWS: Sovereign Immunity on Trial

Wed Apr 23 08:15:02 EDT 2008

    Sovereign immunity on trial

HCN ONLINE <http://www.hcn.org/hcnonline.jsp> - April 22, 2008 by Terri 
C. Hansen
Tribal governments may no longer be exempt from being sued by tribal 
members. Since the early 1800s, the U.S. government has acknowledged 
that Indian nations have full legal rights to manage their own affairs. 
This doctrine of tribal "sovereign immunity" has prevented legal attacks 
on tribal governments and shielded them from lawsuits brought by states, 
groups or individuals. But the recent 9th Circuit Court decision that 
sovereign immunity doesn't protect the Blackfeet Nation of Montana has 
"far-reaching and grave implications for all of Indian Country," said 
Steve Doherty, the tribe's lead attorney.

The court ruled 2-1 that the tribe waived its sovereign immunity through 
the language in its housing regulations, making the Blackfeet Housing 
Authority and not the Department of Housing and Urban Development liable 
for faulty, mold-infested tribal homes built under programs regulated by 
HUD. (The problem is not just confined to the Blackfeet: A 2003 HUD 
study found toxic mold in 15 percent of tribal homes nationwide.) The 
Blackfeet, like most tribes that receive housing funds from HUD, adopted 
a boilerplate provision provided by HUD, which the court deemed a waiver 
of sovereign immunity.

The court's interpretation may have serious repercussions for tribes. 
"This is one of the arguments we made, that the same or similar kind of 
language is commonly seen in agreements with tribal entities," said 
Doherty. "If the decision goes forward, it would expand the grounds for 
finding an implied waiver of immunity."

Without sovereign immunity to protect them, many legal experts worry 
that tribal governments with similar provisions will be besieged with 
personal injury and class action lawsuits. Other tribes, including the 
Navajo and the Confederated Salish and Kootenai, are concerned because 
they have housing ordinances similar to the one that opened up the 
Blackfeet Housing Authority to lawsuits, and have filed amicus briefs in 
support of the Blackfeet agency.

Indian law expert Richard Guest says he is concerned with the exemption 
of HUD from the case on the basis of the United States' own sovereign 
immunity. "By saying, 'You, the federal government, are not liable, but 
you, the tribe, are,' (it) exposes the tribes to the kind of liability 
that they're not set up to absorb the way the United States is."

Judge Harry Pregerson, who dissented with the court's opinion, cited 
numerous statutes that he said created a trust duty to the tribe and its 
members. "The federal government undertook, as part of its treaty and 
general trust relationship, to assist the Blackfeet Tribe to acquire 
decent, safe, and sanitary housing. The tribe had little choice but to 
accept the government housing program."

The Blackfeet Nation is likely to request a rehearing in front of a 
larger 9th Circuit Court panel, says Doherty, rather than appeal to the 
Supreme Court.

/The author writes from Portland, Oregon, and is a member of the 
Winnebago Tribe of Nebraska./

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