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Jurisdictional and Tribal Sovereignty Issues Of vital importance to Indian tribes, like all other sovereigns, is the authority to regulate activities that occur within the tribe's reservation to ensure that the health, safety and welfare of reservation residents are protected to the fullest extent possible. The authority of tribes to do this, however, has been subject to challenge - either by states, which have sought to extend state jurisdiction over the tribes or over persons and activities occurring in Indian country, or by the persons engaged in activities within a tribe's territory.
Our firm has considerable experience in defending tribal sovereignty and jurisdiction in courts and in Congress. We have successfully litigated tribal jurisdiction in areas involving tribal taxing authority, state taxing authority, internal tribal matters and others.
Most recently, we represented a tribe before the U.S. Supreme Court in Inyo County v. Paiute-Shoshone Indians of the Bishop Cmty., 538 U.S. 701 (2003), where the county claimed authority to enforce a state-issued search warrant against the tribe for the purposes of seizing tribal records. In addition, we have represented tribes in successfully resisting other efforts by state to impose state law on Indians in Indian country. For example, we successfully opposed state efforts to tax motor vehicle purchases by Indians on their reservation, Standing Rock Sioux Tribe v. Janklow, 103 F.Supp.2d 1146 (D.S.D. 2000), and enjoined a state from asserting jurisdiction over Indians on reservation highways. Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164 (8th Cir.), reh. denied, cert. denied, 500 U.S. 915 (1990). In another case, Bowen v. Doyle, 880 F.Supp. 99 (W.D.N.Y. 1995), aff'd, 230 F.3d 525 (2d Cir. 2000), we enjoined state courts from interfering with tribal court jurisdiction over an intra-tribal dispute.
We have also successfully represented tribes in protecting their sovereign authority to enforce tribal law in cases such as Wetsit v. Stafne, 44 F.3d 823 (9th Cir. 1995)(upholding tribal jurisdiction to prosecute felony crimes covered by the Major Crimes Act in tribal court and requiring that petitioners for habeas corpus relief exhaust all remedies available in tribal court before going to federal court), and by participation as an amicus in cases such as State of Montana v. E.P.A. 137 F.3d 1135 (9th Cir. 1998) (upholding tribal authority to enforce tribal clean water standards). Our work also regularly involves representation of tribes to protect tribal jurisdiction over proceedings involving adoption or foster care placement of Indian children, as provided by the federal Indian Child Welfare Act. In addition, we are now actively litigating a case to defend tribal authority to tax non-Indian companies that used tribal reservation lands. See Burlington N. Santa Fe R.R. Co. v. Assiniboine and Sioux Tribes of Fort Peck Reservation, 323 F.3d 767 (9th Cir. 2003) and proceedings on remand.
An important aspect of protecting tribal sovereignty has been to defend tribal rights and interests in their sovereign immunity from suit - a right held by all sovereign governments and which serves vital public interests, by protecting government treasuries and resources from costs of litigation to which the sovereign has not consented. We have successfully represented tribes in numerous judicial proceedings to protect the tribe's sovereign immunity. Related to that, our work also regularly includes advising tribes in a variety of circumstances, such as contract negotiations or the development of tribal laws, to establish means by which to resolve disputes consistent with the tribe's sovereign interests.
Another important aspect of tribal sovereignty has been the development of tribal courts and tribal forums with authority to adjudicate disputes that arise on the tribe's reservation pursuant to tribal law. The development of tribal courts is best served by requiring that disputes arising on a tribe's reservation be adjudicated, in the first instance, in the tribal courts. Our practice regularly involves representation of tribes and tribal interests in ensuring that this doctrine - as articulated by the United States Supreme Court in Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987) and Nat'l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985), is followed and that federal and state courts defer to the tribal courts for matters that arise on a tribe's reservation.
In some circumstances, tribal sovereign authority is recognized and given effect through inter-government agreements. Where our tribal clients have deemed it appropriate, we have assisted the tribe in negotiating such agreements with federal, state and local governments. These have included, for example, tribal-state gaming compacts, inter-government agreements on taxation, extradition procedures, and cross-deputization, as well as cooperative agreements with local governments to cover municipal services.
Our work in defending tribal sovereignty has also included work before Congress. Members of our firm have been invited to testify before Congress in the efforts to defeat legislation waiving tribal sovereign immunity. In addition, we have been and remain actively involved in discussions about possible legislation to address issues of tribal authority over non-members in light of recent Supreme Court decisions like Nevada v. Hicks, 533 U.S. 346 (2001) and Atkinson Trading Co. v. Shirely, 532 U.S. 645 (2001), that have made substantial inroads into tribal authority over non-members on Indian reservations. In our work before Congress, we also actively work for amendments to federal laws to ensure that tribes' status as sovereigns is recognized and given effect. One of our recent efforts in that regard was an amendment to the Federal Unemployment Tax Act which made clear that tribes should be treated no differently from other sovereign governments with regard to unemployment taxes under that act. Our work on tribal sovereignty before Congress is part of a long-standing tradition of our firm, whose founding partner took the lead in obtaining legislation to require tribal consent before a state could assume civil or criminal jurisdiction over Indians within a tribe's reservation.
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