Tribal Sovereign Immunity
Tribal Transportation Conference
September 2014
Prepared by Lisa Jaeger
Tribal Government Specialist
Tanana Chiefs Conference
Fairbanks 1-800-478-6822
lisa.jaeger@tananachiefs.org
Language from the List of Federally Recognized Tribes
The preamble to the list of federally recognized tribes in
Alaska specifically says that tribes here have all the
immunities as do other tribes in the U.S.
“ Inclusion on the list does not resolve the scope of powers of
any particular tribe over land or non-members. It only
establishes that the listed tribes have the same privileges,
immunities, responsibilities and obligations as other Indian
tribes under the same or similar circumstances including
the right, subject to general principles of Federal Indian law,
to exercise the same inherent and delegated authorities
available to other tribes.”
Waiving sovereign
immunity is waiving the
right to not be sued, it is
not waiving tribal
sovereignty.
Path of Exercising Tribal Sovereignty Within the Tribe

Sovereign powers, authority and responsibility to
govern, belong to the whole tribe

Tribal members delegate those powers to tribal
councils to exercise, typically through tribal
constitutions which are voted on by the tribal
membership.

Tribal members may reserve some powers to
themselves
• Selling land
• Major waivers of sovereign immunity
• Recall tribal council members
The council as a whole has sovereign
immunity which can be waived under certain
conditions. The tribe’s sovereign immunity
can be ‘pierced’ under certain
circumstances…..ask the Internal Revenue
Service, the federal government can sue
tribes.
Tribal sovereign immunity extends to
protecting individual council members and
court judges from suit when they are acting
‘within their scope of authority.’ Council
members can personally be sued for illegal
and criminal activity.
When tribes waive sovereign
immunity, it should always be
a limited waiver.
DRAFT tribal - state agreement

The Alaska Attorney General’s office has been working with the Tanana
Chiefs Conference and others groups and tribes in shaping a tribal-state
agreement template for the purposes of referring certain misdemeanors
by any state or tribal law enforcement officer directly to tribal courts for
sentencing.

Offenders (tribal members, village residents, or those committing
offences in the village) would be given the choice of going to state court
for prosecution, or agree to go to tribal court for sentencing.

Tribal courts would have the option to take a case referred to it or not.

The tribal courts may use culturally based procedures such as Elder
panels and sentencing circles, and apply restorative justice sentencing
designed to help and heal victims, offenders and the village as a whole.

If an offender does not comply with the tribal sentencing orders, the case
could be referred to the State Court System for prosecution.
Waiver of Sovereign Immunity for
civil diversion agreements/misdemeanors

The waiver means that the Tribe agrees that it can be sued
for the limited purposes under the agreement.
1. To resolve disagreements between the State and the
Tribe over what the Agreement means. Either the Tribe or
the State can cancel the agreement with 30-day notice
rather than litigate the meaning.
2. For suits requiring one of the Parties to take action as
promised under the Agreement such as filling out case
forms and notifying the state as to whether the offender
has complied with the tribal sentence.
3. To require the Tribe’s cooperation if an injured party
sues the State over the Agreement.
What the waiver is not….

Does not waive tribal sovereignty, but
waives the tribes immunity from being
sued under the narrow circumstances
listed.

Does not waive sovereign immunity as to
third parties. In other words, if an offender
or someone else was injured because of
actions that were taken while carrying out
the sentence, they could not sue the tribe.
Legal advisors should be
consulted about
sovereign immunity
waiver language