Recent Developments in Tribal Court Litigation 2024


Ed J. Hermes[1]

Snell & Wilmer L.L.P.
One East Washington Street, Suite 2700
Phoenix, AZ 85004-2556
(602) 382-6529
[email protected]

§ 7.1. Tribal Litigation & the Third Sovereign

We have been writing this annual update of cases relevant to tribal litigation for many 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. To target primarily those cases decided within the last year, this chapter focuses on cases decided between October 1, 2022 – October 1, 2023. The chapter begins with a Supreme Court overview and then is structured around sovereigns—Indian Tribes, the United States, and the fifty sister States.

Retired Supreme Court Justice Sandra Day O’Connor has aptly referred to tribal governments as the “third sovereign” within the United States.[2] Much like federal and state governments, tribal governments are elaborate entities often consisting of executive, legislative, and judicial branches.[3] 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 United States’ president or a state’s governor) and a tribal council or senate (the legislative body). Tribal courts adjudicate most matters arising from their reservations or under tribal law.[4]

Indian tribes are “distinct, independent political communities, retaining their original natural rights” in matters of local self-government.[5] Thus, state laws generally “have no force” in Indian Country.[6] 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.”[7]

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,[8] and settle, dismiss, or resolve without opinion countless others. This chapter introduces those cases most relevant to a business litigation focused audience.

§ 7.2. Indian Law & the Supreme Court

§ 7.2.1. The 2022–2023 Term

The U.S. Supreme Court hears an average of between two and three new Indian law cases every year.[9] During the 2022–2023 term, the Supreme Court decided three Indian law cases.[10]

Arizona v. Navajo Nation, 599 U.S. 555 (2023). The U.S. Supreme Court held that the 1868 peace treaty between the United States and the Navajo Tribe (the “Tribe”), which established the Navajo Reservation and reserved necessary water to accomplish the purpose of the Navajo Reservation, did not require the United States to take affirmative steps to secure water for the Tribe.

In Arizona v. Navajo Nation, the Tribe asserted a breach-of-trust claim against the United States, alleging the 1868 treaty imposed a duty on the United States to …

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