Document Type

Article

Publication Date

11-23-2004

Abstract

  • In the Blackfeet Tribal Court of Appeals, the Court addressed a waiver of sovereign immunity in a suit between a decedent’s children against the tribe and involving a third-party defendant, Simpson Dura-Vent Company, Inc. Plaintiffs alleged negligence against the Blackfeet Indian Housing Authority (BIHA) for failing to maintain the furnace in their decedent father’s tribal housing unit. Plaintiff’s father died due to carbon monoxide poisoning.

  • BIHA was created through Tribal Ordinance# 7, effective January 7, 1977. Article V, paragraph 2 of the Ordinance provides as follows: “The Council hereby gives its irrevocable consent to allowing the Authority to sue and be sued in its corporate name, upon any contract, claim or obligation arising out of its activities under this ordinance and hereby authorizes the Authority to agree by contract to waive any immunity from suit which it might otherwise have; but the Tribe shall not be liable for the debts or obligations of the Authority.”

  • The Court considered whether the “sue and be sued” provision effectively waived BIHA’s immunity from suit.

  • The Court noted that to abrogate tribal immunity, Congress must unequivocally express that purpose, Santa Clara Pueblo v. Martinez, and any waiver of tribal sovereign immunity must be clear. Even an arbitration clause in a contract between parties effectively waives a Tribe’s sovereign immunity.

  • However, the Court also noted that there is a long-held view that a waiver of sovereign immunity cannot be implied but must be unequivocally expresses.

  • The Tribe takes tribal ordinance 7 the way they found it and dismissed the action on the grounds that the Tribe has not waived sovereign immunity.

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