Updated on: 1/3/2019
Over the past decade, Native American Indian Tribes have had an increasing impact on the United States economy.
With constant growth in the business sector, including gaming, tourism, real estate development, banking and finance, media, telecommunications, and wholesale and retail trade, the Indian Tribes notably contribute to the economy in states where tribes are more prevalent.
With the acute growth in tribal economic development, there has been an increase in interactions between Native American Indians and non-natives who go to the Indian Reservations for fun, employment, and business. This increased interaction has led to a growth in legal matters between Indians and non-Indians, especially in states with larger Indian populations, such as Arizona, California, New York, and Washington state.
Washington state has twenty-nine federally recognized Native American Indian tribes. Federally recognized tribes have a special relationship with the U.S. government, which allow them to create their own legal system. Specifically in Washington state, with the growth of casinos and outlet malls on Native American tribal land, many citizens of Washington subject themselves to tribal sovereignty without evening knowing it.
What is Tribal Sovereignty?
Most individuals do not realize that certain tribal rules and regulations can eliminate or significantly reduce some types of personal injury and property damage claims that occur on tribal property. Because tribes are independent sovereign governments, which are largely independent from state and federal government regulations, each tribe sets up their own tribal courts and rules, including tribal tort laws. These laws are very different from state laws, specifically regarding the statute of limitations and the amount and what type of damages may be recovered.
Indian tribes are distinct, independent political communities, retaining their own natural rights in matter of local self-government. Tribes remain a separate people, with the power of regulating their internal and social relations. In essence, the Tribes have the authority to create their own laws and regulations and be ruled by them. Much like state and federal government, tribal governments also consist of an executive, legislative and judicial branch. The Office of the Tribal Chairman and the Tribal Council operate the tribe under a tribal constitution and code of laws, modeled similarly to the state and federal government.
The constitution of the United States, and later federal laws, grant local sovereignty to Native American tribal nations. Full sovereignty is not granted, thus the phrase “domestic dependent nations.” Article 1, Section 8 of the United States Constitution states that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes,” which determined that Indian tribes were separate from the federal government. Because the federal government, rather than state governments, is the one who makes treaties with tribes, the state and tribal governments clash over many issues, such as fishing, hunting, and Indian gaming.
Furthermore, Indian tribes have been recognized as possessing common-law immunity from lawsuits. Consequently, as a matter of federal law, Indian tribes are subject to lawsuits only where Congress has authorized the lawsuit or the tribe has waived its immunity. Thus, without a clear and explicit waiver by Congress or the tribe, the doctrine of sovereign immunity expands to tribal officials acting in the representative capacity and within the scope of their authority.
Are Tribal Courts Different than State & Federal Courts?
Yes. Tribal courts function under the tribe’s written and unwritten codes of law, presided over by a Native American tribal judge, who is generally not an attorney. Most tribal codes and civil rules of procedures outline the powers of the tribal court and may set limitations on tribal courts jurisdiction, similar to the United States Federal Civil Rules and Procedures. A tribe’s code also includes traditional practices, which are based on oral history and may not be codified in the tribal law.
Tribal judges also consider testimony regarding tribal custom and tradition from tribal elders and historians, who do not based their opinions on documentary evidence as may be required by state and federal rules of civil procedures.
Additionally, there is no official tribal court reporter so finding case law can be very difficult. Without keeping all decisions on file, it is complicates finding prior decisions which make it difficult to predict the likely value and outcome of the claim. Furthermore, tribal judges are not bound to precedent, like state and federal judges are. This also creates discrepancies in decisions and how the law may be applied.
Where Should I File a Claim that Arose on the Reservation?
Subject matter jurisdiction of tribal, state or federal court largely relies on two things: (1) Whether the defendant is a Native American Indian or non-native person or entity, and (2) whether the act occurred on Indian fee or allotted lands, non-Native American Indian owned reservation lands, or even a state right-of-way through the reservation.
Tribal courts have jurisdiction over a lawsuits by any party, Indian or non-Indian, against a tribal entity, a tribe, or an Indian person for any claim that arose on the Indian reservation. In claims arising between non-Indians that may have occurred on the reservation, state or federal courts have jurisdiction over these matters.
Specifically, state courts have jurisdiction over any dispute arising from a motor vehicle collision occurring on a state right-of way through the reservation, including a dispute between non-Indians, and a suit by and Indian against a non-Indian.
Can I Bring a Personal Injury Action Against a Native American Tribe?
It is critical to find the tribe’s official Tribal Tort Laws before pursuing a personal injury claim against any tribe. This should be done as soon as possible after an injury because the time limits and procedures for tribes are different among each tribe, as well as different from state and federal laws.
Generally, the statute of limitations is greatly shorter than it in state and federal courts. Because each tribe has its own tribal tort law and its own tribal courts, it can be very challenging for attorneys to pursue a claim in tribal courts who are not familiar with the laws of each tribe.
Can You Challenge the Assertion of Tribal Court Jurisdiction?
Federal courts typically refrain from hearing claims that involve tribal involvement to permit tribal courts to establish their own jurisdiction. Hence, before you challenge a tribal court’s decision in federal court, you must first exhaust all tribal remedies. In any case that involves tribal courts, the court first decides if it has jurisdiction over non-Indian parties. If the tribal court decides that it has jurisdiction, it begins with the proceedings.
If the case is appealed to federal courts and the federal court agrees that the tribe had jurisdiction, it will not relitigate the case. Because of this, it is extremely important to present all the evidence to the tribal judge because you may not have the opportunity to do it again in federal court.
With the expansion of tribal involvement in the growing economy, it is important for individuals to understand the basic differences between tribal courts and state and federal courts. Particularly in Washington state, with large growth in the casino and outlet mall industries, it is vital to understand the varying laws and civil procedures between tribal, state and federal courts.