Asserting a Tribal Sovereign Immunity Defense, Even Where the Tribe has Contractually Waived its Immunity

The doctrine of sovereign immunity acts as a powerful protection for any sovereign entity. By prohibiting the courts from adjudicating whether or not the sovereign party breached a contract, committed a tort, or otherwise wrongfully acted, this doctrine protects the public from devastating financial judgments—but does so at the expense of the private plaintiff. Although this result is undoubtedly unfair to the private party (even, it may be argued, a private party without a meritorious claim) the policy behind sovereign immunity ensures that the risk of wrongful acts by the government and its officials will not be borne by the people whom the government serves. This policy goal is particularly important for Native American governments, who may only have a few thousand members.

Sophisticated private parties wishing to enter into a contract with a tribe understand that they must obtain a waiver of the tribe’s sovereign immunity in order to be able to seek legal redress in the event the tribe breaches the contract or commits some other wrongful act. Similarly, tribes understand that sophisticated private parties will generally require the tribe to unequivocally waive, at least to a limited extent, its immunity from suit as a condition of providing the tribe needed goods or services.

Courts, however, require strict and formal adherence with procedural requirements in order to effectively waive sovereign immunity. E.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); Allen v. Gold Country Casino, 464 F.3d 1044, 1047 (9th Cir. 2006). For example, a waiver cannot be implied into a contract, even where the party argues it...