[Dems2008] Sovereign immunity on trial

http://www.hcn.org/servlets/hcn.Article?article_id=17679

 

 

 

Sovereign immunity on trial

HCN ONLINE - April 22, 2008 by Terri C. Hansen

Tribal governments may no longer be exempt from being sued by tribal members. Since the early 1800s, the U.S. government has acknowledged that Indian nations have full legal rights to manage their own affairs. This doctrine of tribal "sovereign immunity" has prevented legal attacks on tribal governments and shielded them from lawsuits brought by states, groups or individuals. But the recent 9th Circuit Court decision that sovereign immunity doesn't protect the Blackfeet Nation of Montana has "far-reaching and grave implications for all of Indian Country," said Steve Doherty, the tribe's lead attorney.

The court ruled 2-1 that the tribe waived its sovereign immunity through the language in its housing regulations, making the Blackfeet Housing Authority and not the Department of Housing and Urban Development liable for faulty, mold-infested tribal homes built under programs regulated by HUD. (The problem is not just confined to the Blackfeet: A 2003 HUD study found toxic mold in 15 percent of tribal homes nationwide.) The Blackfeet, like most tribes that receive housing funds from HUD, adopted a boilerplate provision provided by HUD, which the court deemed a waiver of sovereign immunity.

The court's interpretation may have serious repercussions for tribes. "This is one of the arguments we made, that the same or similar kind of language is commonly seen in agreements with tribal entities," said Doherty. "If the decision goes forward, it would expand the grounds for finding an implied waiver of immunity."

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