In July, I wrote about the origins of the concept of sovereignty as it applies or may apply to any Indian tribe. It had it’s origins in the early days of this country because of peace treaties entered into with the significant historic Indian tribes who inhabited the eastern regions of what became the United States between the 16th to 19th centuries. The concept evolved through the centuries to the reservation system and the relocation era to the allotment and assimilation era up to the Indian citizenship Act of 1924 and then the Indian Reorganization Act of 1934, which sought to restore historic Indian tribal governments, and in the process, succeeded only in creating the inherent contradiction of Indian tribes and tribal governments made up of individual Indians who had been made full citizens of the United States.

Indian tribal governments were to create their own constitutions, which were to be approved by the federal government’s Department of Interior and Bureau of Indian Affairs. These approvals were more or less pro forma, and in most cases resembled a corporate charter or bylaws than the Constitution of the United States. Thus the patent ambiguity was established giving Indian tribal governments power and authority over individual members who, as U.S. citizens, ostensibly had rights under the U.S. Constitution but who were subject to the tribal constitution.

Inevitably, this contradiction came to the U.S. Supreme Court in a case called Martinez v. Pueblo of Santa Clara. In that case, a female tribal member wanted to leave her land to her children. Under tribal custom, tradition and constitution, only male members were allowed to leave land to their children.

The Supreme Court found that the tribal law and constitution in effect trumped the individual tribal members under the Bill of Rights established by the U.S. Constitution. The rationale was that what amounted to a voluntary enrollment in an Indian tribe amounted to an acquiescence to tribal law and custom over the constitutional rights of individual Indian members.

In 1919, in a little known case called Turner v. United States, the Supreme Court held that a tribal government could not be held liable when a mob tore down a landowner’s fence.

At the time of the Turner case, federal, state and local governments were generally immune from lawsuits. Under old common law, the sovereign immunity doctrine prevented citizens from suing their own governments.

Since that time, however, the United States enacted the federal tort claims act and virtually every state and municipal government has followed suit. So, while liberal federal courts were mistakenly expanding Indian tribal immunity, all other governments were becoming legally responsive to their citizens and susceptible to being sued for their misconduct.

That relatively innocuous holding in Turner was expanded by judges over the years, interpreting cases that came before them in favor of Indian tribes establishing what came to be called the Indian Tribal Immunity Doctrine or sometimes the Indian Sovereign Immunity Doctrine.

This doctrine immunized Indian tribal governments from lawsuits for their misconduct of all kinds. This immunity not only precluded lawsuits by non-Indian individuals and governments, but prevented the individual tribal members from suing their own government for misconduct, violation of their rights and misappropriation of their property.

Because of minimal interaction between reservation Indians and the non-Indian public, this doctrine of legal immunity mostly punished tribal members.

With the advent of numerous federal economic development programs in the 20th century, for Indian tribes, most notably the Indian Gaming and Regulatory Act of 1988, this tribal immunity doctrine began having significant impact on the non-Indian public when dealing with tribal governments and patronizing Indian casinos and related hotels, restaurants and other businesses purchased or developed with profits from the massive losses of gamblers in tribal casinos.

This inevitable conflict came to a head in the 1988 case of Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. In that case, the Supreme Court unanimously concluded that in this day and age, where many Indian tribes own and operate casinos, hotels, restaurants, shopping malls, marinas, amusement parks, etc., the tribal legal immunity doctrine was outdated. It allowed Indian tribes to operate businesses hiring non-Indians and open to the public to evade compliance with a host of state and local laws enacted to protect the non-Indian public. It also enabled Indian tribes to evade liability for their negligence and misdeeds.

At the conclusion of the decision, the court concluded it was up to Congress to eliminate the court-created doctrine. It even suggested by dicta a method of correcting the problems this immunity created. The court suggested amending the Foreign Sovereign Immunity Act, which requires foreign nations doing business in the United States or doing business with U.S. citizens, to say the Indian tribes are obligated to obey all federal, state and local laws and that they can be sued for their misdeeds in all the courts of the land. In the words of Justice Stevens writing his dissent: “Why should an Indian tribe have greater immunity than the United States, all the states and every foreign country?” Justice Stevens warned courts to at least not expand the doctrine. Despite that admonition, courts have tended to extend the doctrine to agents and employees of Indian tribes for their misconduct no matter how outrageous it is.

My earlier essay pointed out that absurd federal Indian policies allow the recognition or acknowledgement of Indian “tribes” made up of one or two persons or a handful of persons often with fractional, questionable or perhaps non-existent Indian ancestry.

The Kiowa decision was made in 1998, and Congress has done nothing to remedy this significant problem. Non-Indians and tribal members are routinely denied legal rights enjoyed by everyone else in the United States, and tribal governments continue to evade legal responsibility for their misconduct because of the outdated and unjustified legal immunity doctrine.