Indian tribes create corporations and agencies, such as casinos and economic development organizations, to further tribal goals. When such an entity is sued, the courts must determine whether the entity shares in the tribe's inherent sovereign immunity. Like tribes, the federal and state governments also create corporations and agencies to further their governmental goals. To determine whether such a federal entity shares in the federal government's sovereign immunity, the courts ask if Congress intended to grant the entity immunity from suit. For state entities, courts ask if the state government intended to extend its sovereign immunity to the entity by examining how state law characterizes the entity. The courts have designed a variety of tests to determine when a tribal entity shares in a tribe's sovereign immunity but none of these explicitly examine the intent of the tribe. This Comment argues that courts err if they do not examine a tribe's intent to extend its sovereign immunity to a tribal entity when analyzing the entity's amenability to suit. The courts defer to federal and state intent due to their status as sovereigns. Tribes are similarly sovereign governments. Federal, state, and tribal sovereign immunity all derive from the same source. Although Congress has the power to change or abrogate tribal sovereign immunity, thus far Congress has not chosen to alter the extent to which tribal entities may benefit from a tribal government's immunity from suit.
Gregory J. Wong,
Notes and Comments,
Intent Matters: Assessing Sovereign Immunity for Tribal Entities,
82 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol82/iss1/7