14 MONTANALAWYER WWW.MONTANABAR.ORG
is month, Kathryn Seaton
(KS), Montana Legal Services
Association, and Jessie Big Knife
(JBK), Chippewa Cree Tribal
Attorney, discuss the ins and outs
of tribal sovereign immunity.
KS: Before we dive into a dis-
cussion on tribal sovereign immu-
nity, let’s start with the concept of
sovereignty. What is sovereignty?
What is its relationship and im-
portance to tribes?
JBK: e generally accepted
denition of sovereignty is the
inherent right or power to self-
govern. Sovereignty is important
to tribes, and tribes have exercised
their sovereignty since before
colonization. Tribes had their
own concepts of sovereignty that
pre-dated colonization. For exam-
ple, the Chippewas and Crees were
nomadic and moved from dier-
ent areas for dierent reasons. is
was a form of sovereignty that we
exercised.
KS: What is the source of
tribes’ sovereignty?
JBK: Sovereignty is inherent and
comes from the people governed. It
started when the United States rst
made contact with tribal nations.
Tribal sovereignty has always been
recognized by the United States
government. at recognition can
be seen through treaties, tribal
constitutions and corporate char-
ters, tribal laws, ordinances, and
the government-to-government
relationship between the federal
government and tribes. e United
States is a tri-sovereign nation —
there is tribal sovereignty, federal
sovereignty, and state sovereignty.
KS: One aspect of tribal sover-
eignty that may be confusing to
practitioners, is the limited nature
of that sovereignty. Many practi-
tioners are aware of case law that
tribes are “domestic dependent
nations.” See Cherokee Nation v.
Georgia, 30 U.S. 1 (1831). is may
lead to a misunderstanding that,
because tribal sovereignty is limit-
ed, it is somehow lesser than state
or federal sovereignty. However,
all sovereignty is limited. Federal
sovereignty is limited by the Tenth
Amendment. State sovereignty is
limited by the Bill of Rights. It’s
INDIAN LAW
Tribal sovereign immunity: What
is it, and what are its limitations?
Jessie Big Knife is the Chippewa Cree Tribal Attorney. (Photo provided)
