Tribal citizen puts sovereign immunity to test in petition to U.S. Supreme Court

Lately, there has been a number of cases being presented to and adjudicated upon by the Supreme Court of the United States involving issues directly and indirectly tied to sovereignty and sovereign immunity in Indian Country. The results have been as mixed as the subject areas.

While the executive and legislative branches in this country seem to be almost at a stand-still over “b.s. politics,” several issues are going before the judicial branch for interpretation and, or clarification of poorly written statutes or issues seeking a remedy.

Each case potentially leads to precedent-making decisions and is treated as law once they are decided upon. In short, the Supreme Court of the United States, SCOTUS, is being tasked with legislating from the bench. 

One recent article involving the SCOTUS and Indian Country made my ears perk up. It did not only gain my interest; like a flash of lightning, it sparked my full attention.

According to a July 7, 2023, Law 360 article by Ali Sullivan, a case that hits close to home for me is making its way up the judicial ladder. What is unique about Laura Bird v. Three Affiliated Tribes Tribal Business Council petition to the High Court is that it is not outsiders challenging sovereign immunity – a tribal government’s right not to be sued — but rather a tribal citizen who is making the challenge.

This case is a double-edged sword that causes mixed feelings. In the past, I have always been a strong advocate for tribal sovereignty and always will be. But this one is different. I am also a strong advocate for individual tribal citizen rights. This time, there may be no clear winner.

On one hand, if the plaintiff Bird is entitled to just compensation because of any wrongdoing targeted at her, then more power to her. I hope she prevails. Tribal citizens across the United States should be and are supposed to be subject to the same equal protections and remedies under the rule of law, just the same as any other American.

Our Treaty Rights are meant to be rights that are in addition to and not seen as a boundary meant to blockade our basic human and civil rights. In other words, we, as individuals, are entitled to self-sovereignty and free will.

On the other hand, tribal sovereignty is under attack. Therein lies the conflict. The sword cuts both ways on this one. So far, the merits of the case seemingly have justified the sovereign immunity defense, and sovereignty remains intact.

If it is determined, however, that the TAT Tribal Business Council, TBC  — the official governing body of the Three Affiliated Tribes as recognized under the Indian Reorganization Act, or IRA — is guilty of wrong-doing or does business from an alleged RICO-based culture of corruption as the case describes, there will be hell to pay. 

If that is the case, then more than 17,000 Mandan, Hidatsa, and Arikara citizens will pay the price for the dirty deeds of only seven elected individuals. Either way, once again, the courts will have another opportunity to slice and dice treaty rights and tribal sovereignty.

To make matters more concerning, the SCOTUS and lower courts recently have had a trend of establishing rulings stating that Tribes are not above the law or any special exemptions in certain instances. While that is a positive development regarding Individual rights, tribal sovereignty takes a hit at the same time.

Therein lies the danger of having non-tribal entities making decisions on matters which we should be taking care of ourselves. A Code of Conduct or ethics policies to hold any seven sitting elected councilmen of the Three Affiliated Tribes accountable does not exist or is not applied. There is virtually no tribal, constitutionally based in-house means for the Mandan, Hidatsa, and Arikara citizenry of the Three Affiliated Tribes to hold any politician responsible for any violation of the public trust while they hold office.

Bureau of Indian Affairs, or BIA, bureaucrats, seemingly, only sit back, break out the popcorn and enjoy watching the division of our people and do little or nothing except stuff their faces. Their oil-based buttery fingers dirty up everything they touch.

Not even washing their hands before or after they eat. Their only concern is to protect the bureau and to keep the citizens of the perpetual prison-class system that it has created in check. That is probably why, when it comes to Individual Indian or allottee rights, it keeps and maintains a “hands-off” and “Don’t ask, don’t tell” approach.

The exception, of course, is unless it is Bossing Indians Around, another well-known acronym for the BIA. Meanwhile, the defending parties are looking “lawyered up,” with some heavy hitters serving as legal representatives, including North Dakota’s former U.S. Attorney. Obviously, the MHA Nation, or Three Affiliated Tribes, has the cash to pursue its own brand of justice.

Let’s see how it all plays out. Will civil claim actions amongst ourselves as Indian people become more commonplace? Right now, citizens’ rights are often curtailed by a tribe’s claim to sovereign immunity. In Bird’s case, she’s asking the highest court in the land to examine a racketeering claim against the tribe.