Ralph W. Johnson and James M. Madden, Soverign Immunity in Indian Tribal Law, 12 Am. Indian L. Rev. 153 (1984), https://digitalcommons.law.uw.edu/faculty-articles/476
American Indian Law Review
Indian tribes, sovereign immunity
An examination of the tribal courts' civil jurisdiction and sovereign immunity decisions, and a review of the doctrine's origins and purposes in federal and state law reveal the increasing importance of the sovereign immunity doctrine and suggest several options to tribal councils and courts in deciding which aspects of the doctrine to retain. The article concludes that:
(1) The doctrine of sovereign immunity is not part of the controlling federal law applicable to Indian tribal courts, except where trust property is involved.
(2) Each Indian tribe has inherent sovereign power to adopt, reject, or waive the doctrine of sovereign immunity for suits in tribal courts, except those concerning trust property. In such actions, only Congress may waive sovereign immunity.
(3) Where a tribal constitution or ordinance fails to address sovereign immunity, the tribal court must decide whether the doctrine is part of the common law of that tribe and whether and to what extent the doctrine should be limited by exceptions.
While sovereign immunity is widely criticized, both the federal and state governments continue to retain certain aspects of the doctrine. Indian tribal governments may find it useful to do the same.