Sovereign immunity on trial

  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 Classifieds
  • DEAN, W. A. FRANKE COLLEGE OF FORESTRY AND CONSERVATION, UNIVERSITY OF MONTANA
    Dean, W. A. Franke College of Forestry and Conservation, apply http://bit.ly/2548umjobs. AA/EEO/ADA/Veterans Preference Employer
  • GRAPHIC DESIGNER
    Western Resource Advocates (WRA) seeks a creative and driven graphic design professional to design high quality print and digital collateral. The Graphic Designer will bring...
  • STEWARDSHIP SPECIALIST
    San Isabel Land Protection Trust seeks experienced person to manage its 133 conservation easements in south-central Colorado.
  • CAMPAIGN REPRESENTATIV
    Sierra Club's Beyond Dirty Fuels Campaign is hiring an experienced campaigner to lead our work challenging the oil and fracked gas industry on the Gulf...
  • AG LANDS PROGRAM DIRECTOR
    Oregon Agricultural Trust (OAT) seeks passionate relationship builder experienced in coordinating agricultural conservation easement transactions.
  • REMOTE SITKA ALASKA FLOAT HOUSE VACATION RENTAL
    Vacation rental located in calm protected waters 8 miles from Sitka, AK via boat with opportunities to fish and view wildlife. Skiff rental also available.
  • FINANCE DIRECTOR
    Mountain Studies Inst (MSI) is hiring 4+ positions: Finance Director; Coms/Engagmnt Mngr; Dev/Engagmnt Dir; Americorps vol
  • COMMUNICATIONS AND ENGAGEMENT MANAGER
    Mountain Studies Inst (MSI) is hiring 4+ positions: Finance Director; Dev/Engagement Dir; Coms/Engagement Mngr; & Americorps volunteer
  • SEASONAL TRAIL CREW LEADERS
    Lead the nation's premier volunteer-based trail crew programs on the spectacular Pacific Crest National Scenic Trail. This is a great career-building opportunity for rising professionals....
  • ORGANIZING AND TRAINING COORDINATOR
    Is this your dream job? Are you looking to join a nationally recognized organizing network, live in a spectacular part of the West, and work...
  • DEVELOPMENT AND ADVOCACY DIRECTOR
    Provide stewardship and protection for the Great Burn wildlands along the Montana-Idaho stateline. This position is based in Missoula, MT, where a river runs through...
  • DEVELOMENT DIRECTOR
    Great Old Broads for Wilderness is seeking a qualified Development Director to manage the fundraising success of our growing organization, including the team-driven implementation of...
  • EXECUTIVE DIRECTOR
    Central Oregon LandWatch is seeking an Executive Director to advance our mission and oversee the development of the organization. Job Description: The Executive Director oversees...
  • LISA MACKEY PHOTOGRAPHY
    Fine Art Gicle Printing. Photo papers, fine art papers, canvas. Widths up to 44". Art printing by an artist.
  • SAN JUAN BASIN ENERGY CAMPAIGN ORGANIZER
    San Juan Citizens Alliance is seeking a full-time San Juan Energy Campaign Organizer located in Farmington, New Mexico. The San Juan Energy Campaign Organizer focuses...
  • WILDLIFE PROGRAM MANAGER
    San Juan Citizens Alliance (SJCA) is looking for a passionate, experienced, and motivated Wildlife Program Manager to lead campaigns to protect and enhance wildlife and...
  • GRANT WRITER
    "This thriving citizens organization exemplifies the ideal of public involvement in public processes."- Billings Gazette Help protect Montana's water quality, family farms and ranches, &...
  • COMMUNITY ORGANIZER AND MEMBERSHIP COORDINATOR
    Western Colorado Alliance is hiring for 4 positions, 2 Full Time Community Organizers, 1 Part Time Community Organizer and a Part Time Membership Coordinator. For...
  • BUSINESS OPERATIONS DIRECTOR
    Thorne Nature Experience is looking for a Business Operations Director who will work in partnership with the Executive Director and Thorne's Directors and Managers to...
  • WILDERNESS CONSERVATION CORPS - OREGON
    The Siskiyou Mountain Club is hiring interns for the 2020 Field Season. Interns utilize non-mechanized tools to complete trail restoration and maintenance while gaining job...