Tribal Sovereign Immunity and the Need for Congressional Action

Abstract

Native American Indian tribal sovereign immunity is a judicially created doctrine that provides immunity from suit for Indian tribes in the United States. Although judicially created, the United States’ courts have repeatedly emphasized that only Congress has the power to limit Indian tribal immunity. As a result, tribal sovereign immunity has become a seemingly boundless means of avoiding lawsuits and liability. Moreover, tribal sovereign immunity has created a gap in the United States judicial system in which an individual may avoid certain lawsuits by entering into a favorable transaction with an Indian tribe. In these transactions, an individual may transfer property rights to an Indian tribe, thereby allowing the tribe to assert immunity in a suit concerning the property. Without congressional action, tribal sovereign immunity and the judicial loophole it creates will continue to be exploited.