Tribes and Tribal Businesses

In Wright v. Colville Tribal Enterprise Corp., 111 P.3d 1244 (Wash. App. 2005), the Washington Court of Appeals held that tribal corporations and their officers and employees do not retain tribal immunity for suit in cases arising outside of Indian Country. The Washington Supreme Court granted cert. and will hear the case May 16, 2006.

When the U.S. Supreme Court decided Kiowa in 1998, it asked Congress to revisit the issue of whether Indian tribes doing business off-reservation could retain their immunity. Congress did (thanks to Slade Gorton) and rejected the legislation.

The Wright case is a microcosm of an interesting dilemma for tribal businesses. The outside world views tribal businesses as a waste of time unless they are separate from the politics of tribal government, e.g., in 2002, the Wall St. Journal praised the CSKT businesses for their commitment to profits and not politics. But separating out the tribal businesses from the tribe (e.g., Section 17 corporations, etc.) leads to cases like Wright and those troublesome Tuscarora/Coeur d'Alene-type cases.

At the 2005 UND Indian Law Conference, practitioner Steve Olson argued the best way to retain sovereign immunity and other exemptions is to tie the business to the tribe so as to make them inseparable. He had just won Prescott v. Little Six in the Eighth Circuit.

Cornell and Kalt suggest there are tribes engaged in the "standard" form of economic development (failures) and there are tribes engaged in the "nation-building" form of economic development (winners) and tribes in between. There are elements of tribal control and letting go in the "nation-building" form -- and vice versa in the "standard" form.

All this sounds good, but what's to prevent tribes from following the Little Six model in an attempt to preserve immunity and exemptions from federal/state law? To control or not to control?