Alaska Supreme Court considers extent of legal shield for tribal groups

The Alaska Supreme Court is considering a case that could redefine the extent of legal protection for corporations jointly operated by Alaska Native tribes, and the verdict could have major implications for the state of Alaska.

In written arguments and in court on Tuesday, attorneys representing the state said that if the court rules broadly, it might limit the state’s ability to enforce a wide range of laws, including tax collection, consumer protection and antidiscrimination rules.

Tribal health care consortiums argue that a limited ruling by the court could expose them to lawsuits, requiring them to spend more money on legal defense and less on health care.

The federal government has also intervened, and after courtroom arguments on Tuesday, the Alaska Supreme Court may now decide the limits of a principle known as “sovereign immunity.”

Federal and state courts have repeatedly held that Alaska Native tribes — which are sovereign governments just as states and the federal government are — are immune to most types of lawsuits.

What’s at stake

The question before the Alaska Supreme Court is whether — and to what degree — sovereign immunity also applies in state law to groups operated by multiple tribes.

The case has broad implications because those kinds of groups are the main source of health care for Native and non-Native Alaskans in rural Alaska, operating the sole clinics and hospitals in many towns and cities. They may also provide housing, education and other services.

If these consortiums are immune to lawsuit in state court, medical malpractice claims would have to go through a federally administered process, and other kinds of claims might be barred entirely unless a court waives a group’s immunity. Lawsuits would still be possible against individuals, but not against the groups themselves.

“The key question before this court is whether the Copper River Native Association has tribal immunity,” said Jim Davis, attorney for a former association employee who is attempting to sue the organization after her firing in May 2019.

CRNA is a tribal consortium that provides health care and community services in the eastern Interior.

Yvonne Ito says she was wrongfully fired by CRNA after objecting to a variety of alleged wrongdoings. She brought suit in state court, but the association argued that the case should be dismissed because it has sovereign immunity. CRNA has also argued that Ito was correctly fired for mishandling association funds.

A superior court judge ruled in favor of CRNA in October 2020, saying that it was immune to the lawsuit. Ito has now appealed to the Supreme Court.

Other tribal organizations weigh in

Tanana Chiefs Conference, which provides health care in Interior Alaska, filed documents in support of CRNA’s claim to sovereign immunity.

“Over the past three years, TCC raised sovereign immunity as a defense against threatened or actual litigation multiple times,” the group said in a legal filing.

“We find time and again that federal health care funds that could have been used for critical health care services are diverted for litigation defense of meritless claims. Sovereign immunity is an essential, critical element of preserving TCC’s resources for the purpose they are intended: providing health care for tribal members,” the group wrote.

Many other tribal groups, including the Alaska Native Tribal Health Consortium, United Tribes of Bristol Bay, Maniilaq Association, and Southeast Alaska Regional Health Consortium, also filed arguments in support of CRNA.

Nathaniel Amdur-Clark, an attorney representing Copper River, told justices that without a legal shield, tribes will spend more of their money on lawsuits and less on health care.

“Those funds should be going to pay for health care. They shouldn’t be paying me to be up here today,” he said.

Attorneys representing the state of Alaska disagree with the consortiums’ argument.

“While these organizations provide important, needed programs and services, they are not themselves federally recognized tribes possessing inherent sovereignty under federal law,” the Alaska Department of Law concluded in 2017.

Attorneys representing the state argued that if sovereign immunity applies to consortiums, it would have implications beyond cases like Ito’s.

“For example, the state would not be able to sue tribal entities with sovereign immunity to enforce its unfair trade practices law, data privacy laws, and antidiscrimination laws,” the state said in written arguments.

Potential costs

If it is unable to enforce tax law, consortiums might be able to sidestep paying taxes, the state argued.

“For municipalities like Anchorage, which gains more than half its yearly revenue from real property tax, effectively exempting entities from taxation is a significant harm,” it said.

The tribal groups have rebutted the state’s speculation by saying prior rulings on tribal sovereignty were accompanied by similar warnings but have not harmed child welfare or justice in tribal courts.

The Alaska Supreme Court’s last major ruling on sovereign immunity for tribal groups was in 2004, when justices concluded that it does not apply to a tribal corporation unless “its connection to the tribe or tribes is so close that allowing suit against the entity will damage the tribal interests that immunity protects.”

Since that ruling, federal courts across the country have ruled in a variety of ways on the topic. In 2014, the federal 9th Circuit Court of Appeals — whose jurisdiction covers Alaska — created a five-part test to determine whether or not sovereign immunity applies.

Some consortiums urged the state justices to adopt that test, which has already been used to bar claims in federal court against them.

The federal government, intervening on behalf of CRNA, argued in favor of updating the 2004 Alaska decision. The federal argument is limited to federally funded issues alone and is based on a 1975 federal law that says tribal consortiums “shall have the rights and responsibilities of the authorizing Indian tribe” when working on those issues.

Those rights and responsibilities include sovereign immunity, said federal attorney Martin Totaro.

“There is no dispute,” he said, “that if the tribes themselves had delivered the services … at issue in this case directly, the plaintiff’s suit would be barred.”

Jim Davis, representing Ito, cautioned justices that barring lawsuits would “close the door” on injured Alaskans’ ability to challenge tribal groups in court.

“Bad things happen, and there’s no forum where any court ever addresses those bad things,” he said.

Originally published by the Alaska Beacon, an independent, nonpartisan news organization that covers Alaska state government.