Oregon State Bar Bulletin — OCTOBER 2002

Legal Practice Tips

What every attorney should know
By Gabe Galanda

Over the past decade, the 42 federally recognized Indian tribes in Washington, Oregon and Idaho have become major players in the local, state and national economies. Northwest tribes are aggressively creating and operating new businesses in the areas of real estate development, banking and finance, media, telecommunications, wholesale and retail trade, tourism and gaming. Consider these facts:

A corollary to the dramatic increase in tribal economic development is the increased interaction of tribes and non-Indian citizens who seek business, employment or fun on Indian reservations. In turn, legal matters between Indian tribes and non-Indians continue to increase.

As Indian law issues now intersect both litigation and transactional practices, and virtually every niche of law, every attorney should be cognizant of the general Indian law principles at work and be prepared to answer common Indian law questions. For that reason, it seems useful to share the following Q&A on legal principles that govern relations between Indian tribes and non-Indians in Oregon.

What Is Tribal Sovereignty?
Answer: Indian tribes are 'distinct, independent political communities, retaining their original natural rights' in matters of local self-government. Although no longer 'possessed of the full attributes of sovereignty,' tribes remain a 'separate people, with the power of regulating their internal and social relations.' In short, Indians possess 'the right … to … make their own laws and be ruled by them.'

Much like the state government, tribal governments are elaborate entities, consisting of executive, legislative and judicial branches. The office of the tribal chairman (like that of the state governor) and the tribal council (the state legislature) operate the tribe under a tribal constitution and code of laws.

Are Tribal Courts Different Than State And Federal Courts?
Answer: Yes. Although Oregon tribal courts are modeled after Anglo-American courts, Indian courts are significantly different. Tribal judges, who are often tribal members, are not necessarily lawyers.

Tribal courts operate under the tribes’ written and unwritten code of laws. Most tribal codes contain civil rules of procedure specific to tribal court, as well as tribal statutes and regulations. Such laws outline the powers of the tribal court and may set forth limitations on tribal court jurisdiction.

A tribe’s code also includes customary and traditional practices, which are based on oral history and may not be codified in tribal statutes and regulations. Tribal judges consider testimony regarding custom and tradition from tribal elders and historians, who need not base their opinions on documentary evidence as may be required by state and federal evidentiary rules.

Tribal courts generally follow their own precedent and give significant deference to the decisions of other Indian courts. However, because there is no official tribal court reporter and because not all tribal courts keep previous decisions on file, finding such case law can be difficult. The opinions of federal and state courts are persuasive authority, but tribal judges are not bound by such precedents. Nevertheless, Oregon’s state courts may extend full faith and credit to valid tribal court orders, and both state and federal courts in Oregon grant comity to tribal court rulings.

Before handling a matter in tribal court, an advocate must appreciate the character of tribal courts, pay careful attention to tribal laws and statutes, and understand the fundamental differences between tribal courts and state and federal courts.

Can We Sue the Tribe for Damages or Equitable Relief?
Answer: Probably not. Like other sovereign governmental entities, tribes enjoy common law sovereign immunity and cannot be sued: An Indian tribe is subject to suit only where Congress has 'unequivocally' authorized the suit or the tribe has 'clearly' waived its immunity. There is a strong presumption against waiver of tribal sovereign immunity.

The doctrine of sovereign immunity shields tribes from suit for monetary damages and requests for declaratory or injunctive relief. However, tribal government officials who act beyond the scope of their authority are not immune from claims for damages.

Tribes are also immune from the enforcement of a subpoena, e.g., to compel production of documents. Further, a court cannot compel the Department of the Interior (DOI) or the Bureau of Indian Affairs (BIA) – fiduciary for the benefit of tribes – to comply with the Freedom of Information Act and release documents passed between tribes and the agencies unless the communications involve 'tribal interests subject to state and federal proceedings.'[cite] Arguably, if a tribe is immune from state or federal suit, documents exchanged between tribes and DOI or BIA regarding 'tribal interests' or 'matters internal to the tribe,' are exempt from disclosure under FOIA.

Tribal immunity generally extends to agencies of the tribe such as tribal casinos and other business enterprises. As many Oregon citizens flock to tribal casinos, slip-and-falls and other tort claims arising on tribal reservations have increased. Nevertheless, courts routinely dismiss personal injury suits against tribes for lack of jurisdiction.

Therefore, in considering whether to sue a tribe on behalf of an injured party, you must closely evaluate issues of sovereign immunity and waiver. Unless you can show clear evidence of tribal waiver or unequivocal Congressional abrogation, do not waste your time, your client’s money or a court’s resources by filing suit. A judge will simply dismiss the plaintiff’s claims for damages for lack of subject matter jurisdiction.

Can We Sue the Tribe to Enforce a Contract?
Answer: Probably not. Tribes retain immunity from suit when conducting business transactions both on and off the reservation. Generally, a tribe can only be sued in contract if the agreement explicitly waived tribal immunity; a waiver will not be implied. Nonetheless, the U.S. Supreme Court recently held in C&L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Oklahoma, 532 U.S. 411 (2001), that a contractual agreement to arbitrate disputes constitutes a clear waiver of immunity.

Increasingly, tribes will agree to limited waivers of immunity. Some tribes set up subordinate entities whose assets, the tribes acknowledge, are not immune from suit, levy or execution (although assets not held by the entity remain protected by immunity).

So, if you are asked to sue a tribe for breach of contract, you should first consider the entity with which your client contracted — i.e., a tribe, which is likely immune from suit; or a subordinate entity, for which the tribe may have waived its immunity. If you are asked to create a contract with a tribe, you must explain to your client that there may not be any remedy available in the event of a contractual breach. You should then negotiate with the tribe to reach a meeting of the minds with respect to the immunity issue. Again, some tribes will agree to a limited waiver.

Can I Sue the Tribe for Employment Discrimination?
Answer: Probably not. Both Title VII, 42 U.S.C. Section 2000e(b), and the Americans with Disabilities Act, 42 U.S.C. Section 12101-12213, expressly exclude Indian tribes. Similarly, the Ninth Circuit has held that tribes are immune from suit under the Age Discrimination in Employment Act. Tribes are also immune from suit under 42 U.S.C. Section 1983. Likewise, state discrimination laws do not apply to tribal employers.

Tribally-owned entities are generally not subject to state and federal discrimination laws either. Tribal officials are also immune from suit arising from alleged discriminatory behavior, so long as they acted within the scope of their authority. In short, any employment suit against a tribe or its officials based upon federal or state discrimination law will likely be dismissed for lack of subject matter jurisdiction.

Oregon tribes have become one of the nation’s largest employers. As a result, non-Indians’ employment records and documents concerning tribal employment practices are increasingly becoming the focus of discovery, even in litigation against non-tribal entities. If the employee is a party, his or her employment records are discoverable if they are in the employee’s custody or control. However, under the doctrine of sovereign immunity, a tribe cannot be forced to produce the employee’s records. By the same token, a court cannot compel a tribe — or the Bureau of Indian Affairs — to provide documents about the tribe’s employment practices, i.e., matters 'internal' to the tribe.

Can I Sue the for Violation of Labor and Employment Laws?
Answer: Maybe. The circuits are split regarding the application of federal regulatory employment laws to tribal employers. The Ninth Circuit has applied the Occupational Safety and Health Act and the Employee Retirement Income Security Act to tribes, reasoning that such statutes of general applicability govern tribal employment activity because Indian tribes are not explicitly exempted from the laws. The Seventh and Second Circuit Courts of Appeal have adopted the Ninth Circuit’s rationale and also applied OSHA and ERISA to tribes, and the Seventh Circuit leans toward application of Fair Labor Standards Act to tribal employers.

Conversely, the Tenth and Eight Circuits have refused to apply to tribes such laws as OSHA, ERISA, FLSA and the National Labor Relations Act, because doing so would encroach upon well-established principles of tribal sovereignty and tribal self-governance. While the Ninth Circuit’s rulings that apply federal employment statutes of general applicability to tribes are binding in Oregon, and the decisions of the Seventh and Second Circuits serve as persuasive precedent, state labor laws and workers’ compensation statutes remain inapplicable to tribal businesses.

Where Should We File a Claim that Arises on the Reservation?
Answer: It depends. Subject matter jurisdiction of tribal, state or federal courts depends largely upon 1) whether the defendant is an Indian or non-Indian person or entity, and 2) whether the act occurred on Indian fee or allotted lands, non-Indian-owned reservation lands or even a state right-of-way on the reservation. These two complex issues should be the first area of inquiry for any question regarding civil jurisdiction over a dispute arising on a reservation.

Tribal courts have jurisdiction over a suit by any party – Indian or non-Indian – against an Indian person, a tribe,or tribal entity for a claim arising on the reservation. Jurisdiction over lawsuits between non-Indians arising on the reservation lies in state court. So, assuming your client is prepared to show clear or unequivocal waiver of tribal immunity, you should file any tort claims arising on Indian lands or in tribal casinos in tribal court.

Specifically, state courts have jurisdiction over any dispute arising from an auto accident occurring on a state right-of-way through the reservation, including a dispute between non-Indian citizens, and a suit by an Indian against a non-Indian. As such, common claims that arise on Oregon state highways running through reservations should be brought in state court.

Can We Be Sued in Tribal Court?
Answer: It depends. Generally, a tribal court can only assert jurisdiction over a claim against a non-Indian person or entity when 'necessary to protect tribal self-government or to control internal relations.' [cite needed] Essentially, a tribal court only has jurisdiction over the reservation activities of non-Indian parties 'who enter consensual relationships with the tribe … through commercial dealing, contract, leases, or other arrangements.'[cite again]

State courts may exercise jurisdiction over a non-Indian person or entity for a claim arising on the reservation. Federal courts may assert jurisdiction over a claim against a non-Indian party based upon reservation activities if there is federal question jurisdiction under 28 U.S.C. Sec. 1131, 1343, or diversity jurisdiction under 28 U.S.C. Sec. 1332. Thus, absent a contractual relationship with the tribe, non-Indian parties can only be sued in state or federal court.

Can We Challenge the Assertion of Tribal Court Jurisdiction?
Answer: Yes. If sued in tribal court, non-Indian persons or entities can challenge the tribal court’s assertion of civil jurisdiction in federal court. However, federal courts typically stay their proceedings to allow the tribal court to determine its own jurisdiction. Thus, before you challenge a tribal court’s assertion of jurisdiction in federal court, you must first exhaust tribal remedies.

In any case, a tribal court first decides jurisdiction over non-Indian parties. If the tribal court rules that it has jurisdiction, it proceeds with the case. If the federal court later agrees that the tribal court had jurisdiction, it will not re-litigate the case. Therefore, you should thoroughly present the merits of your client’s case to the tribal judge, as you and your client may not have a subsequent opportunity to do so in federal court. In doing so, you should be ever mindful of the unique aspects of tribal courts described above.

Can I Be Prosecuted in Tribal Court?
Answer: No. Tribal courts in Oregon cannot assert general criminal jurisdiction over Indian or non-Indian crimes occurring on the reservation. Under Public Law 280, 18 U.S.C.A. § 1162(a), Congress granted Oregon state courts the power to assert jurisdiction over on-reservation crimes. However, Oregon tribal courts still retain the power to exclude any unwanted person from their reservations.

Public Law 280 explicitly excepts the 640,000-acre Warm Springs Reservation in north central Oregon — the state’s largest reservation. Under other federal criminal statutes, crimes committed at Warm Springs by non-Indians against non-Indians are subject to state jurisdiction, while federal courts have jurisdiction over reservation crimes committed by non-Indians against Indians or Indian 'interests' (e.g., property).

Unlike civil jurisdiction, the rules concerning tribal criminal jurisdiction are rather clear. Oregon tribes recognize the bright-line rule that a non-Indian cannot be prosecuted in tribal court for an on-reservation offense, so rarely, if ever, will an Oregon citizen face tribal court prosecution.

Oregon is witnessing first-hand both the tremendous rise in tribal economic development, and an array of legal disputes between Indians and non-Indians. Indeed, Indian law principles impact litigation and transactional practices, and intersect general tort, contract, employment, and criminal law. Further, Indian law issues implicate tribal, state and federal court practice and challenge attorneys’ common understandings of procedural and jurisdictional principles. For these reasons, it is vital that you recognize and understand the Indian law issues that you will inevitably encounter in your practice.

Gabe Galanda is an associate with the Seattle-Portland law firm Williams, Kastner & Gibbs. He is an enrolled member of the Nomlaki Tribe of the Round Valley Indian Confederation in Northern California and serves as president of the Northwest Indian Bar Association. He can be reached at (206) 628-2780 or ggalanda@ wkg.com.

© 2002 Gabe Galanda

return to top
return to Table of Contents