Published: Nov. 22, 2017
Rick Collins

An article written by Professor Richard Collins, “To Sue and Be Sued: Capacity and Immunity of American Indian Nations,” will appear in Creighton Law Review in 2018. The work of scholarship focuses on tribal immunity with the goal of giving tribes and their lawyers a full account of the law on tribal immunity and related issues. An abstract appears below.

“Can American Indian nations sue and be sued in federal and state courts? Specific issues are whether tribes have corporate capacity to sue, whether a Native group has recognized status as a tribe, and whether and to what extent tribes and their officers have governmental immunity from suit. Tribal capacity to sue is now well established, and federal law has well-defined procedures and rules for tribal recognition. But tribal sovereign immunity is actively disputed.

This paper reviews retained tribal sovereignty in general and summarizes past contests over tribal capacity to sue and their resolution into today's settled rule. Next is a concise statement of the law on federal recognition of tribal entities. Most of the paper explains and analyzes ongoing issues about tribal immunity from suit. Tribal immunity has been continuously recognized from the first reported decision, but tribes' commercial activities, modern attacks on immunity generally, and states rights proclivities of some justices jeopardize its existence. Much active litigation involves suits against tribal officers and possible application of the Ex parte Young doctrine. For many reasons, tribes are adopting carefully defined consents to suit, particularly in relation to tribal casinos. This paper's essential purpose is to give tribes and their lawyers a full account of the law on tribal immunity and current disputes about it.”

Read the full article.

Collins practiced Indian law for 15 years, and played a key role in multiple significant Indian Law decisions, including United States Supreme Court decisions such as McClanahan v. Arizona Tax Commission, 421 U.S. 164 (1973). He continues to serve as a pro bono consultant to the Native American Rights Fund (NARF) and tribes including the Southern Ute Indian Tribe. Collins’ research looks at Indian law as well as constitutional issues. He teaches courses related to Indian Law, Constitutional Law, and Property Law, as well as a course on the regulation of marijuana.