Sovereign immunity on trial

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. © High Country News