MOTION ASSERTING TRIBAL SOVEREIGN IMMUNITY

IN THE [________________________________] COURT

[Specify: United States District Court for the District of ______________ OR State Court of ______________]

Case No.: [________________________________]

[________________________________],
Plaintiff,

v.

[________________________________] [TRIBE/NATION/TRIBAL ENTITY],
Defendant.

DEFENDANT'S MOTION TO DISMISS BASED ON TRIBAL SOVEREIGN IMMUNITY

Defendant, [________________________________] (hereinafter "the Tribe" or "Defendant"), by and through undersigned counsel, respectfully moves this Court for an Order dismissing Plaintiff's Complaint with prejudice on the grounds that the Tribe possesses sovereign immunity from suit. In support of this Motion, Defendant states as follows:

I. INTRODUCTION

This action must be dismissed because Defendant is a federally recognized Indian tribe (or an arm of a federally recognized Indian tribe) that possesses sovereign immunity from suit. Tribal sovereign immunity is a matter of federal law that bars suits against Indian tribes absent clear congressional authorization or an express, unequivocal waiver by the tribe. Neither exception applies here.

II. STATEMENT OF FACTS

A. The Tribe

1. Defendant, [________________________________], is a federally recognized Indian tribe listed in the Federal Register pursuant to the Federally Recognized Indian Tribe List Act, 25 U.S.C. § 5131. See [____] Fed. Reg. [____] (most recent listing).

2. The Tribe exercises governmental authority over its members and territory, including the [________________________________] Reservation located in [________________________________].

3. The Tribe operates pursuant to its Constitution and Bylaws, approved by the Secretary of the Interior on [__/__/____].

B. The Tribal Entity (If Applicable)

☐ This section applies (Defendant is a tribal entity)
☐ This section does not apply (Defendant is the Tribe itself)

4. Defendant, [________________________________], is a [corporation/enterprise/agency/department] created by and wholly owned by the [________________________________] Tribe/Nation.

5. [Entity Name] was created by [Tribal Council Resolution No. ____/Tribal Ordinance/Charter] on [__/__/____].

6. [Entity Name] operates as an arm of the Tribe and shares in the Tribe's sovereign immunity because:

☐ The entity was created by the Tribe through tribal law
☐ The Tribe intended the entity to share in its immunity
☐ The entity serves governmental or commercial purposes benefiting the Tribe
☐ The Tribe maintains control over the entity
☐ The financial relationship between the entity and Tribe demonstrates integration

C. The Underlying Dispute

7. On [__/__/____], Plaintiff filed the instant Complaint alleging [________________________________].

8. The Complaint seeks [monetary damages / injunctive relief / declaratory judgment / other relief] against the Tribe.

9. The Tribe has not waived its sovereign immunity with respect to the claims asserted in this action.

III. LEGAL STANDARD

A. Motion to Dismiss Standard

A motion to dismiss based on tribal sovereign immunity may be brought pursuant to:

☐ Federal Rule of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction)
☐ Federal Rule of Civil Procedure 12(b)(6) (failure to state a claim)
☐ [State] Rules of Civil Procedure, Rule [____]

Tribal sovereign immunity is not merely an affirmative defense; it provides immunity from suit, not just immunity from liability. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 755 (1998). As such, questions of sovereign immunity should be resolved at the earliest possible stage of litigation.

B. Sovereign Immunity Standard

"As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." Kiowa Tribe, 523 U.S. at 754. The Supreme Court has consistently upheld tribal sovereign immunity as "a necessary corollary to Indian sovereignty and self-governance." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng'g, 476 U.S. 877, 890 (1986).

IV. ARGUMENT

A. The Tribe Possesses Sovereign Immunity from Suit

1. Indian Tribes Are Domestic Dependent Nations with Inherent Sovereignty

Indian tribes are "domestic dependent nations" that exercise inherent sovereign authority over their members and territories. Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831); United States v. Wheeler, 435 U.S. 313, 323 (1978). This sovereignty predates the Constitution and is not granted by the federal government but rather recognized by it.

2. Sovereign Immunity Is a Core Attribute of Tribal Sovereignty

As sovereigns, Indian tribes possess the "common-law immunity from suit traditionally enjoyed by sovereign powers." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). This immunity is coextensive with that of the United States. Kiowa Tribe, 523 U.S. at 754.

3. Tribal Sovereign Immunity Applies to All Types of Claims

Tribal sovereign immunity applies regardless of:

• Whether the activity is governmental or commercial in nature. Kiowa Tribe, 523 U.S. at 758
• Whether the activity occurs on or off the reservation. Id.
• The source of the claim (contract, tort, or otherwise)
• Whether the plaintiff is Indian or non-Indian

B. No Congressional Abrogation of Immunity Exists

1. Abrogation Must Be Unequivocally Expressed

"Congress' authority to abrogate tribal immunity is not at issue, but to abrogate immunity, Congress must 'unequivocally' express that purpose." C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 418 (2001).

2. No Applicable Abrogation Statute

Plaintiff cannot identify any statute in which Congress has abrogated the Tribe's sovereign immunity for the claims at issue. The following potentially applicable statutes do NOT abrogate tribal immunity:

☐ The Indian Civil Rights Act, 25 U.S.C. § 1301 et seq., does not authorize private suits against tribes. Santa Clara Pueblo, 436 U.S. at 59.
☐ The Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., does not abrogate tribal immunity for private party claims. Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 795-96 (2014).
☐ [Other potentially relevant statute]: [________________________________]

C. The Tribe Has Not Waived Its Sovereign Immunity

1. Waivers Must Be Clear and Unequivocal

A waiver of tribal sovereign immunity "cannot be implied but must be unequivocally expressed." Santa Clara Pueblo, 436 U.S. at 58. Courts apply a "strong presumption" against finding a waiver. Demontiney v. United States, 255 F.3d 801, 811 (9th Cir. 2001).

2. No Express Waiver Exists

☐ The Tribe has not enacted any waiver of sovereign immunity applicable to these claims.
☐ No contract or agreement contains a valid waiver.
☐ The Tribe's Constitution does not waive immunity for suits of this nature.

3. Conduct Does Not Constitute Waiver

The following conduct does NOT constitute a waiver of tribal sovereign immunity:

• Entering into a contract. Kiowa Tribe, 523 U.S. at 760
• Operating a commercial business. Id.
• Appearing in litigation to assert immunity
• Conducting activities off the reservation

4. Any Purported Waiver Is Invalid (If Applicable)

☐ Not applicable - no waiver is alleged
☐ Applicable - Plaintiff alleges a waiver, but:

[________________________________]

D. The Tribal Entity Shares the Tribe's Immunity (If Applicable)

☐ Not applicable
☐ Applicable

Under the test established by Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173 (10th Cir. 2010), and similar cases, the following factors demonstrate that [Entity Name] functions as an arm of the Tribe and shares its immunity:

Factor 1: Method of Creation
[________________________________]

Factor 2: Tribal Intent for Entity to Share Immunity
[________________________________]

Factor 3: Purpose of the Entity
[________________________________]

Factor 4: Tribal Control
[________________________________]

Factor 5: Financial Relationship
[________________________________]

E. Policy Considerations Support Immunity

The Supreme Court has recognized that tribal sovereign immunity promotes "tribal self-governance" and "economic development." Bay Mills, 572 U.S. at 810. Any limitation on tribal immunity is for Congress to decide, not the courts. Kiowa Tribe, 523 U.S. at 758-59.

V. CONCLUSION

For the foregoing reasons, Defendant respectfully requests that this Court GRANT this Motion and DISMISS Plaintiff's Complaint with prejudice because:

1. Defendant is a federally recognized Indian tribe [or arm of a tribe] that possesses sovereign immunity from suit;

2. Congress has not abrogated the Tribe's immunity for the claims asserted; and

3. The Tribe has not waived its immunity.

VI. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

A. Grant this Motion to Dismiss;

B. Dismiss Plaintiff's Complaint in its entirety with prejudice;

C. Award Defendant its costs and, if authorized, attorney's fees; and

D. Grant such other relief as the Court deems just and proper.

Respectfully submitted,

Attorney for Defendant:

Signature: [________________________________]

Printed Name: [________________________________]

Bar Number: [________________________________]

Firm Name: [________________________________]

Address: [________________________________]

City, State, ZIP: [________________________________]

Telephone: [________________________________]

Email: [________________________________]

Date: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of this Motion was served upon all counsel of record by:

☐ ECF electronic filing
☐ First-class mail
☐ Email
☐ Other: [________________________________]

Signature: [________________________________]

ATTACHMENTS

The following documents are submitted in support of this Motion:

☐ Exhibit A: Federal Register listing of the Tribe as a federally recognized Indian tribe
☐ Exhibit B: Tribal Constitution (relevant excerpts)
☐ Exhibit C: Tribal Council Resolution establishing [Entity Name] (if applicable)
☐ Exhibit D: [Other supporting documentation]
☐ Memorandum of Points and Authorities in Support of Motion
☐ Declaration of [________________________________]
☐ Proposed Order

KEY CASE LAW SUMMARY

SOURCES AND REFERENCES

• Bureau of Indian Affairs - Tribal Sovereignty
• Native American Rights Fund - Federal Courts Bulletin
• American Bar Association - Recent Developments in Tribal Court Litigation

This template is intended for use in federal or state court proceedings where a tribal defendant seeks dismissal based on sovereign immunity.