INDIAN TRIBES ENJOY SOVEREIGN IMMUNITY TO 1926(B) LAWSUITS
According to a recent ruling of the District Court for the Southern District of Alabama, §1926(b) limitations likely do not apply to Indian Tribes, and even if they do, the Tribes are immune from suit for any violation of §1926(b) protections. In Freemanville Water Systems v. Poarch Band of Creek Indians, 2008 WL 80644 (S.D. Ala.), the Poarch Band of Creek Indians (the “Tribe”), along with entities owned by the Tribe, planned to build a water facility on tribal land. The water facility would serve several noncontiguous patches of tribal land in the area. The tribal lands were within the rural water district’s (the “District”) service area and the District had been supplying water to the areas. The proposed infrastructure connecting the noncontiguous areas of tribal land would run through protected territory.
The District brought suit claiming the threatened action would violate the District’s §1926(b) protection. The Tribe filed a motion to dismiss on the grounds of tribal sovereign immunity. The District argued the Tribe was not entitled to sovereign immunity because Congress had abrogated such immunity, the Tribe had waived such immunity, and Tribal immunity did not exist as to the Tribe’s actions off of tribal land.
Abrogation: The District first argued that §1926(b) prohibitions apply to “public bodies” which includes Indian Tribes. Based on the premise that the only time a court will find that Congress abrogated tribal immunity is where the legislation specifically states that intent, the court rejected the District’s argument. According to the court, the statute did not define “public body” and thus remained ambiguous as to whether Indian Tribes are included. The court then went on to state that even if a Tribe is a “public body” within §1926(b), the only implication is that a Tribe is obligated to comply with the anti-curtailment provisions—an entirely different issue than whether the tribe may be sued for failure to comply. In other words, “whether an Indian Tribe is subject to a statute and whether the tribe may be sued for violating the statute are two entirely different questions.”
Waiver: The District also argued the Tribe waived sovereign immunity by receiving a HUD grant to build housing which was serviced by the District’s system. The court found no evidence showing that the Tribe had promised or committed to the District’s services. According to the court, without such a promise or commitment, the District’s claim failed because the court will not imply a waiver based on the actions of a Tribe.
Off-Reservation Conduct: The District also argued that the Tribe did not have sovereign immunity for the pipes it would have to run between the tribal lands. In rejecting the District’s claims, the court reiterated its previous finding that even if the Act applies to the Tribe off of tribal land, it does not mean the Tribe can be sued for any violation.
In the end, this case stands for the proposition that Indian Tribes, whether or not subject to §1926(b) protections, cannot be sued by a rural water district for any violation thereof—on or off of tribal lands.
