Tribal Sovereign Immunity Tribal Transportation Conference September 2014 Prepared by Lisa Jaeger

1. Tribal Sovereign Immunity Tribal Transportation Conference September 2014 Prepared by Lisa Jaeger Tribal Government Specialist Tanana Chiefs Conference Fairbanks 1-800-478-6822 lisa.jaeger@tananachiefs.org

2. Language from the List of Federally Recognized Tribes The preamble to the list of federally recognized tribes in Alaska specifically says that tribes here have all the immunities as do other tribes in the U.S. “ Inclusion on the list does not resolve the scope of powers of any particular tribe over land or non-members. It only establishes that the listed tribes have the same privileges, immunities, responsibilities and obligations as other Indian tribes under the same or similar circumstances including the right, subject to general principles of Federal Indian law, to exercise the same inherent and delegated authorities available to other tribes.”

3. Waiving sovereign immunity is waiving the right to not be sued, it is not waiving tribal sovereignty.

4. Path of Exercising Tribal Sovereignty Within the Tribe • Sovereign powers, authority and responsibility to govern, belong to the whole tribe • Tribal members delegate those powers to tribal councils to exercise, typically through tribal constitutions which are voted on by the tribal membership. • Tribal members may reserve some powers to themselves • Selling land • Major waivers of sovereign immunity • Recall tribal council members

5. The council as a whole has sovereign immunity which can be waived under certain conditions. The tribe’s sovereign immunity can be ‘pierced’ under certain circumstances…..ask the Internal Revenue Service, the federal government can sue tribes.

6. Tribal sovereign immunity extends to protecting individual council members and court judges from suit when they are acting ‘within their scope of authority.’ Council members can personally be sued for illegal and criminal activity.

7. When tribes waive sovereign immunity, it should always be a limited waiver.

8. DRAFT tribal - state agreement • The Alaska Attorney General’s office has been working with the Tanana Chiefs Conference and others groups and tribes in shaping a tribal-state agreement template for the purposes of referring certain misdemeanors by any state or tribal law enforcement officer directly to tribal courts for sentencing. • Offenders (tribal members, village residents, or those committing offences in the village) would be given the choice of going to state court for prosecution, or agree to go to tribal court for sentencing. • Tribal courts would have the option to take a case referred to it or not. • The tribal courts may use culturally based procedures such as Elder panels and sentencing circles, and apply restorative justice sentencing designed to help and heal victims, offenders and the village as a whole. • If an offender does not comply with the tribal sentencing orders, the case could be referred to the State Court System for prosecution.

9. Waiver of Sovereign Immunity for civil diversion agreements/misdemeanors • The waiver means that the Tribe agrees that it can be sued for the limited purposes under the agreement. 1. To resolve disagreements between the State and the Tribe over what the Agreement means. Either the Tribe or the State can cancel the agreement with 30-day notice rather than litigate the meaning. 2. For suits requiring one of the Parties to take action as promised under the Agreement such as filling out case forms and notifying the state as to whether the offender has complied with the tribal sentence. 3. To require the Tribe’s cooperation if an injured party sues the State over the Agreement.

10. What the waiver is not…. • Does not waive tribal sovereignty, but waives the tribes immunity from being sued under the narrow circumstances listed. • Does not waive sovereign immunity as to third parties. In other words, if an offender or someone else was injured because of actions that were taken while carrying out the sentence, they could not sue the tribe.

11. Legal advisors should be consulted about sovereign immunity waiver language