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
  • BACKCOUNTRY FILM FESTIVAL MANAGER
    Boise-based Winter Wildlands Alliance is looking for an experienced and highly motivated individual to organize our annual Backcountry Film Festival and Tour and coordinate additional...
  • LAND CONSERVATION MANAGER
    SUMMARY Leads, administers and manages the land conservation, conservation easement stewardship, and property management activities of the City of Fort Collins Natural Areas Department within...
  • CLEAN ENERGY PROGRAM ATTORNEY, NEVADA
    Position Summary: Western Resource Advocates (WRA) is seeking a Staff Attorney who is passionate about Western communities and the protection of the natural environment to...
  • EXECUTIVE DIRECTOR
    Deschutes River Conservancy in Bend, Oregon
  • WATER POLICY ANALYST WITH WRA (BOULDER)
    Position Summary: Western Resource Advocates seeks a passionate Water Policy Analyst with knowledge of western water issues to join our Healthy Rivers Team to strengthen...
  • GILA NATIONAL FOREST
    9+ acre inholding. Passive solar strawbale off the grid and next to the Continental Divide Trail in ponderosa pine/doug fir forest at 7400.
  • HIRING BEARS EARS EDUCATION CENTER DIRECTOR
    Conservation nonprofit Friends of Cedar Mesa in Bluff, Utah is hiring an Education Center Director to oversee the operation of the Bears Ears Education Center....
  • PROGRAM MANAGER, SUSTAINING FLOWS
    Friends of the Verde River, Cottonwood, AZ. Apply at https://verderiver.org/employment-opportunities/
  • PROGRAM ASSOCIATE - VERDE RIVER EXCHANGE
    Verde River Exchange - Friends of the Verde River, Cottonwood, AZ. Apply at https://verderiver.org/employment-opportunities/
  • CODE COMPLIANCE OFFICER
    Teton County Planning & Building is hiring! Our ideal candidate is a team-player, a problem-solver, pays attention to detail, and can clearly communicate technical material...
  • ARCHITECTURE DRAFTSPERSON/PROJECT MANAGER
    Studio Architects is seeking a full time Architectural drafts-person/project manager with1-3 years of experience to join our firm. At Studio Architects our mission is to...
  • ASSISTANT MANAGER/TRAINEE, COLORADO RANCH
    needed for 16,000+ acre conservation property in south central Colorado. Qualified candidate would have experience working on a ranch or wilderness property, general forestry/fire management...
  • FARM HAND &/OR NANNY IN ESCALANTE
    Nanny for 18-mnth-old. Yearly salary, vacation, health insurance. Spanish/other foreign-language native spkr prefrrd.
  • EXECUTIVE DIRECTOR
    Washington Association of Land Trusts seeks an ED to build on WALTs significant success & to lead the association to new levels of achievement. See...
  • BEAUTIFUL CUSTOM STRAWBALE HOME IN WESTERN COLORADO!
    Secluded, energy efficient Southwestern home on 40 wooded acres. Broker - Rand Porter - United Country Real Colorado Properties. 970-261-1248, $425K
  • FORMER RETREAT CENTER/CONSERVATION PROPERTY FOR SALE
    57 acres in Skull Valley, AZ, 17 miles from Prescott, year-round creek, swimming holes, secluded canyon, hiking/meditation trails, oaks, pines, garden, greenhouse. House, office building,...
  • HISTORIC RANCH HOME W/ 20 ACRES
    Historic 1893 Ranch Headquarters. 4 Bdrm, 3.5 Ba, 4000 ft2. Remodeled 2002. Includes 2 studio apts, stables, arena, workshop, 5 RV hookups. Chirachua & Peloncillo...
  • VICE PRESIDENT OF RETAIL OPERATIONS
    The Vice President of Retail Operations will provide overall leadership and accountability for purchasing, product development, merchandising planning, visual merchandising, retail operational excellence, oversight and...
  • ASSOCIATE DIRECTOR
    Grand Staircase Escalante Partners seeks an experienced fundraiser with excellent communication and organizational skills.
  • PROGRAM MANAGER
    position in Phoenix with the Babbitt Center for Land and Water Policy.