Post by blackcrowheart on Mar 20, 2007 13:07:23 GMT -5
December court decisions question sovereign immunity
by: Jerry Reynolds <_http://www.indiancohttp://wwwhttp://www.http:/_
(http://www.indiancountry.com/author.cfm?id=331) >
Indian Country Today
_http://www.indiancohttp://wwwhttp://www.ihttp://www.in_
(http://www.indiancountry.com/content.cfm?id=1096414279)
WASHINGTON - Two unrelated court decisions in late December have raised
concerns among attorneys in Indian country that tribal sovereign
immunity from lawsuits is under siege.
In a case that revisited the legal status of race relations going all
the way back to the Civil War, the U.S. District Court for the District
of Columbia ruled on Dec. 19 that the Cherokee Tribe and its officials
are not immune from lawsuit ''in these circumstances'are not imm
circumstances indeed, but the gist of them is this: Cherokee Freedmen,
the descendants of slaves to the Cherokee or of free blacks who
intermarried with Cherokees, can sue the tribe and its officials for
excluding them from 2003 elections that sought to limit citizenship to
Indians in a way that again left out the Freedmen.
The Freedmen complained to the Interior Department that the Cherokee
sought to deny tribal citizenship ''as a matter of policy for Cherokees
who can trace [their lineage] only to the Cherokee Freedmen Rolls'' and
not to the ''Blood Rolls,'' restricting citizenship to the descendants
of citizens with Indian blood.
The Freedmen, then known as ''Black Cherokees,'' had been made citizens
of the Cherokee Nation (which sided with the Confederacy during the
Civil War) by the Treaty of 1866, as a condition of continued Cherokee
sovereignty in the United States. The treaty reads, in part: ''all
freedmen who have been liberated ... as well as all free colored persons
... and their descendants, shall have all the rights of native
Cherokees.''
Congress has repeatedly sought to protect Freedmen interests from
Cherokee interventions, Judge Henry Kennedy reasoned. ''By repeatedly
imposing such limitations on the sovereignty of the Cherokee Nation in
order to protect the Freedmen, Congress has unequivocally demonstrated
its intent to abrogate the tribe's immunity with regard to racial
oppression prohibited by the Thirteenth Amendment [abolishing slavery].
Although the right to vote is not explicitly mentioned by the Thirteenth
Amendment, there can be no doubt that the right to vote is fundamental
and cannot be denied on account of race.''
Kennedy's opinion is online at
www.dcd.uscourts.www.dcd.uscouwww.dcd.uscourtswww.dcd.uscourtswww.dcd.
In California on Dec. 21, the state Supreme Court filed an opinion that
the Agua Caliente Band of Cahuilla lack immunity from lawsuit over
noncompliance with state regulation of its political and electoral
processes. As in the Cherokee Freedmen case, the court based its
decision on ''the unique issue raised in the present case,'' the issue
of the tribe's failure to report its political campaign contributions to
a state commission.
California tribes, especially gaming tribes, have become a major
presence in state political campaigns. Immediately following the Dec. 21
decisions, a number of tribal leaders in the state told various media
that most tribes there already comply with disclosure requirements.
But the so-called ''bad facts'' in the case have some potential to
extend beyond the local setting. The Agua Caliente did not defy the
state's right to regulate election processes, but only its right to
enforce the regulations on the tribe. Based on that distinction, the
court majority found a further distinction between tribal sovereignty
and tribal sovereign immunity from lawsuits. The distinction locates the
origin of tribal sovereign immunity in dicta, incidental judicial
opinions that are not essential to a decision and set no precedent in
case law.
''Tribal sovereign immunity from suit is not synonymous with tribal
sovereignty. Rather, it is merely one attribute of the status of Indian
tribes as domestic dependant [sic] nations. That tribal sovereign
immunity included immunity from suit was a concept developed 'almost by
accident' in Turner v. United States (1919) 248 U.S. 354. ... There,
'for the sake of argument,' ... the high court made a 'passing reference
to immunity.'..to immunity.'..<WBR>. The concept of tribal immunity was el
to holding [in 1940] ... 'Later cases, albeit with little analysis,
reiterated the doctrine.'''
Ultimately, the court majority argues a case for overturning that
doctrine under the limited circumstances before it. ''Tribal members, as
citizens of the United States, are allowed to participate in state
elections. Allowing the Tribe immunity from suit in this context would
allow tribal members to participate in elections and make campaign
contributions (using the tribal organization) unfettered by regulations
designed to ensure the system's integrity. Allowing tribal members to
participate in our state electoral process while leaving the state
powerless to effectively guard against political corruption puts the
state in an untenable and indefensible position without recourse.
''Given the unique facts here, we agree with the Court of Appeal and
conclude that the guarantee clause [article 4, section 4 of the
Constitution, reserving to citizens a right to republican government and
the electoral choice of their own administrative offers], together with
the rights reserved under the Tenth Amendment [reserving powers to the
states], provide the [Fair Political Practices Commission] authority
under the federal Constitution to bring suit against the Tribe in its
[FPPC's] enforcement of the PRA [Political Reform Act, the California
law in question].''
Writing for the 4 - 3 majority of the court, Justice Ming Chin added,
''In so holding, we recognize that our abrogation of the sovereign
immunity doctrine under these facts is narrow and carefully
circumscribed to apply only in cases where California, through its Fair
Political Practices Commission, sues an Indian tribe for violations of
state fair political practice laws.''
The minority issued a vigorous dissenting opinion. Both opinions in the
case are accessible online at
http://www.courtinfo.www.courtinfo.<Wwww.courtiwww.courtinf
by: Jerry Reynolds <_http://www.indiancohttp://wwwhttp://www.http:/_
(http://www.indiancountry.com/author.cfm?id=331) >
Indian Country Today
_http://www.indiancohttp://wwwhttp://www.ihttp://www.in_
(http://www.indiancountry.com/content.cfm?id=1096414279)
WASHINGTON - Two unrelated court decisions in late December have raised
concerns among attorneys in Indian country that tribal sovereign
immunity from lawsuits is under siege.
In a case that revisited the legal status of race relations going all
the way back to the Civil War, the U.S. District Court for the District
of Columbia ruled on Dec. 19 that the Cherokee Tribe and its officials
are not immune from lawsuit ''in these circumstances'are not imm
circumstances indeed, but the gist of them is this: Cherokee Freedmen,
the descendants of slaves to the Cherokee or of free blacks who
intermarried with Cherokees, can sue the tribe and its officials for
excluding them from 2003 elections that sought to limit citizenship to
Indians in a way that again left out the Freedmen.
The Freedmen complained to the Interior Department that the Cherokee
sought to deny tribal citizenship ''as a matter of policy for Cherokees
who can trace [their lineage] only to the Cherokee Freedmen Rolls'' and
not to the ''Blood Rolls,'' restricting citizenship to the descendants
of citizens with Indian blood.
The Freedmen, then known as ''Black Cherokees,'' had been made citizens
of the Cherokee Nation (which sided with the Confederacy during the
Civil War) by the Treaty of 1866, as a condition of continued Cherokee
sovereignty in the United States. The treaty reads, in part: ''all
freedmen who have been liberated ... as well as all free colored persons
... and their descendants, shall have all the rights of native
Cherokees.''
Congress has repeatedly sought to protect Freedmen interests from
Cherokee interventions, Judge Henry Kennedy reasoned. ''By repeatedly
imposing such limitations on the sovereignty of the Cherokee Nation in
order to protect the Freedmen, Congress has unequivocally demonstrated
its intent to abrogate the tribe's immunity with regard to racial
oppression prohibited by the Thirteenth Amendment [abolishing slavery].
Although the right to vote is not explicitly mentioned by the Thirteenth
Amendment, there can be no doubt that the right to vote is fundamental
and cannot be denied on account of race.''
Kennedy's opinion is online at
www.dcd.uscourts.www.dcd.uscouwww.dcd.uscourtswww.dcd.uscourtswww.dcd.
In California on Dec. 21, the state Supreme Court filed an opinion that
the Agua Caliente Band of Cahuilla lack immunity from lawsuit over
noncompliance with state regulation of its political and electoral
processes. As in the Cherokee Freedmen case, the court based its
decision on ''the unique issue raised in the present case,'' the issue
of the tribe's failure to report its political campaign contributions to
a state commission.
California tribes, especially gaming tribes, have become a major
presence in state political campaigns. Immediately following the Dec. 21
decisions, a number of tribal leaders in the state told various media
that most tribes there already comply with disclosure requirements.
But the so-called ''bad facts'' in the case have some potential to
extend beyond the local setting. The Agua Caliente did not defy the
state's right to regulate election processes, but only its right to
enforce the regulations on the tribe. Based on that distinction, the
court majority found a further distinction between tribal sovereignty
and tribal sovereign immunity from lawsuits. The distinction locates the
origin of tribal sovereign immunity in dicta, incidental judicial
opinions that are not essential to a decision and set no precedent in
case law.
''Tribal sovereign immunity from suit is not synonymous with tribal
sovereignty. Rather, it is merely one attribute of the status of Indian
tribes as domestic dependant [sic] nations. That tribal sovereign
immunity included immunity from suit was a concept developed 'almost by
accident' in Turner v. United States (1919) 248 U.S. 354. ... There,
'for the sake of argument,' ... the high court made a 'passing reference
to immunity.'..to immunity.'..<WBR>. The concept of tribal immunity was el
to holding [in 1940] ... 'Later cases, albeit with little analysis,
reiterated the doctrine.'''
Ultimately, the court majority argues a case for overturning that
doctrine under the limited circumstances before it. ''Tribal members, as
citizens of the United States, are allowed to participate in state
elections. Allowing the Tribe immunity from suit in this context would
allow tribal members to participate in elections and make campaign
contributions (using the tribal organization) unfettered by regulations
designed to ensure the system's integrity. Allowing tribal members to
participate in our state electoral process while leaving the state
powerless to effectively guard against political corruption puts the
state in an untenable and indefensible position without recourse.
''Given the unique facts here, we agree with the Court of Appeal and
conclude that the guarantee clause [article 4, section 4 of the
Constitution, reserving to citizens a right to republican government and
the electoral choice of their own administrative offers], together with
the rights reserved under the Tenth Amendment [reserving powers to the
states], provide the [Fair Political Practices Commission] authority
under the federal Constitution to bring suit against the Tribe in its
[FPPC's] enforcement of the PRA [Political Reform Act, the California
law in question].''
Writing for the 4 - 3 majority of the court, Justice Ming Chin added,
''In so holding, we recognize that our abrogation of the sovereign
immunity doctrine under these facts is narrow and carefully
circumscribed to apply only in cases where California, through its Fair
Political Practices Commission, sues an Indian tribe for violations of
state fair political practice laws.''
The minority issued a vigorous dissenting opinion. Both opinions in the
case are accessible online at
http://www.courtinfo.www.courtinfo.<Wwww.courtiwww.courtinf