Grant T. Christensen*
University of North Dakota
215 Centennial Dr.
Grand Forks, ND 58201
Ryan D. Dreveskracht†
Galanda Broadman, PLLC
8606 35th Avenue NE, Ste. L1
Seattle, WA 98125
Heidi McNeil Staudenmaier**
Snell & Wilmer L.L.P.
One Arizona Center
400 E. Van Buren
Phoenix, AZ 85004-2202
§ 1.1 Tribal Litigation & The Third Sovereign
We have been writing this annual update of cases relevant to tribal litigation for years. Recognizing that the average practitioner consulting this volume may not have much experience with federal Indian law, we have endeavored to provide historical context and citation to most relevant circuit and even district court cases in every volume. This had resulted in a chapter that had grown to almost 70 pages in length and had increasingly made it difficult for the reader to identify the most recent cases.
To both be more consistent with the other chapters in this volume, and to focus on the cases decided in the last year, we decided to change the format of this chapter beginning with the 2019 Edition. This chapter will continue with that format and focus on cases decided between Oct. 1, 2019 – Oct. 1, 2020. While other chapters have arranged themselves by circuit, we will begin with a Supreme Court overview and then structure this chapter around sovereigns; Indian Tribes, the United States, and the fifty sister States. Within each sovereign we now provide a more concise overview of each subject, with more limited and deliberate citation, followed by longer and more intentional discussion of recent cases. We hope the reader appreciates the change in format and we welcome comments via email to any of the chapter authors.
Retired Supreme Court Justice Sandra Day O’Connor has aptly referred to tribal governments as the “third sovereign” within the United States. Much like federal and state governments, tribal governments are elaborate entities often consisting of executive, legislative, and judicial branches. Tribes are typically governed pursuant to a federal treaty, presidential executive order, tribal constitution and bylaws, and/or tribal code of laws, implemented by an executive authority such as a tribal chairperson, governor, chief, or president (similar to the president or a state’s governor) and a tribal council or senate (the legislative body). Tribal courts adjudicate most matters arising from the reservation or under tribal law.
Indian tribes are “distinct, independent political communities, retaining their original natural rights” in matters of local self-government. Thus, state laws generally “have no force” in Indian Country. While in the eyes of federal and state government, tribes no longer possess “the full attributes of sovereignty,” they remain a “separate people, with the power of regulating their internal and social relations.”
This chapter explores the repose of tribal sovereignty, federal plenary oversight of that sovereignty, and perennial state encroachment upon that sovereignty. Federal trial and appellate courts issue more than 650 written opinions in cases dealing with Indian law each year, and settle, dismiss, or resolve without opinion countless others. This chapter introduces those cases most relevant to a business litigation focused audience.
§ 1.2 Indian Law & The Supreme Court
§ 1.2.1 The 2019–2020 Term
The Supreme Court hears an average of between two and three new Indian law cases every year. During the 2019-2020 term, the Court decided …