Law

Turtle Talk: Sovereign immunity and independent tribal judiciary

Tuesday, April 5, 2011

"There are two active cases out there involving Florida tribes that raise interesting questions relating to tribal courts and tribal immunity in federal and state courts. The two cases, Miccosukee Tribe v. Kraus-Anderson Constr. (which is currently pending before the Supreme Court — an invitation brief from the OSG may be forthcoming soon), and last week’s district court decision in Contour Spa at Hard Rock v. Seminole Tribe (see today’s post here).

It is our understanding that both tribes have unusual government structures (unusual by federal and state standards, and to most but not all tribes) in which the tribal legislature serves as the appellate court of final resort for the tribal judiciary. This is less common, we think, than it once was in Indian country, but a goodly number of tribes retain this structure. Many tribes in Michigan, by contrast, have very clear constitutional boundaries between the tribal political branches and the tribal courts, and the Harvard Project strongly recommends an independent judiciary as part of its prescription for solid economic growth in Indian country.

Tribes can and should establish whatever governmental structure they believe fits best for their communities, but there may be consequences to the tribal council-as-appellate court structure for tribes that have large commercial operations."

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Tribal Immunity, Tribal Court Jurisdiction, and Separation of Powers (Turtle Talk 4/5)