TRIBAL SOVEREIGN IMMUNITY: ABSOLUTE AUTHORITY OR ACCOUNTABILITY

In the wake of the recent United States Supreme Court decision of Trump v. United States, the Court determined that the President as Chief Executive is immune from conduct associated with official acts. The question that emanates from this opinion is how will this decision affect Indian Country and tribal court determinations of tribal sovereign immunity? This article will attempt to address this question. I begin with the Anishinaabe story of Bebaamosed miinawaa Gawigoshko’iweshiinh (The Trickster and the Little Scary Bird) in an attempt to understand the complicated nature of tribal sovereign immunity. As we reflect upon this story, in the context of the implementation of the doctrine of sovereign immunity, tribal nations must ask themselves whether, pursuant to tribal customary law, the actions of governmental officials are without consequence due to Anglo-American governing principles of absolute authority, or whether the actions of government officials are subject to notions of accountability? When we think of government officials in the role of the Anishinaabe trickster, can they, in the performance of their duties, just randomly “shit” on their constituents? Especially those constituents that are in need of protection and are unable to defend themselves? Are there consequences and repercussions for the actions of governmental officials? As this article will discuss, its time tribal nations utilize traditional customary law principles in the interpretation of the doctrine of tribal sovereign immunity. In response, this article sets out to examine tribal sovereign immunity as well as tribal customary law principles associated with immunity. In doing so, Part I provides a brief introduction. Part II provides a background of the federal Indian law doctrines of tribal sovereignty and tribal sovereign immunity. Part III provides an overview of tribal law interpretations of tribal sovereign immunity. This is significant as little academic scholarship has been done considering how tribes interpret their own sovereign immunity principles. Part IV proceeds to discuss tribal customary principles of sovereign immunity. In doing so, this part begins with a background explanation of tribal customary law principles. This Part then proceeds to provide an overview of Anishinaabe principles associated with the doctrine of sovereign immunity. This Part then progresses to provide an argument for the parameters of a tribal customary law waiver of tribal sovereign immunity. The final Part provides a brief conclusion by providing tribal nations with a vision for the future.