A fairly typical cautionary tale about tribal sovereign immunity.

MM&A sued the tribe in Superior Court for breach of contract. The tribe moved to dismiss on grounds of sovereign immunity. The tribal official who signed the contract had also signed two written waivers, as had his predecessor. But the tribe’s Constitution says, as usual, that only the Tribal Council can waive immunity, and the Council’s Executive Secretary submitted an affidavit that she looked through the minutes and it had never done so. The trial court granted the tribe’s motion; MM&A appealed. The Court of Appeals affirms.

It first regurgitates Indian immunity law for several pages while saying nothing new or helpful. That law is quite strict and always comes as a shock to those who haven’t studied it carefully before trying to make money dealing with the tribes – i.e., just about everybody. MM&A tried to argue apparent authority. But only actual authority is good enough; “misrepresentation by [the] tribe’s officials or employees ‘cannot effect its immunity from suit,’” nor do “’the equities of a given situation.’” MM&A did have a case from the Colorado Court of Appeals allowing apparent authority but this opinion rejects it as “contrary to the weight of controlling law.”

MM&A argued that it should at least get discovery on whether the tribal officer had actual authority; he had allegedly been told by a Council member that it knew of the waiver and approved of it. But the tribe’s affidavits said that the various bureaucratic procedures necessary to waive sovereign immunity had never been done for this contract, so the court figures that further evidence couldn’t make any difference.

This case does at least show you what you need. If you want to be able to sue an Indian tribe then you have to make sure that every detail of the waiver process is carried through by the book and documented by the tribe in the tribe’s records. You can’t rely on what anyone says, regardless of how many officials sign on how many dotted lines. The rules you’re used to just don’t apply. If there’s any doubt, contact the tribe’s lawyer – who will be involved with the process anyway – and make sure you understand the details.

The alternative, of course, is to sue the tribe in tribal court. Some of those are well-appointed and the judges are trained and interested. Others are held (we speak from experience) in double-wide trailers and the judge is an elderly lady with no schooling who barely speaks English and whose principal function is to chastise wayward Indian children. But since a principal tenet of all Indian law is that it must be construed so as to benefit Indians, your chances may be as good in one as in the other.

(For procedure junkies, the court considered matters outside the pleadings but didn’t have to convert the Rule 12 motion to a Rule 56. The opinion notes that that needn’t be done when the question considered is the court’s  jurisdiction and the facts considered are not “intertwined” with the merits of the case.)

(link to opinion)