Legal E-Bulletin - June 2003

Federal Disability Rights Laws as Applied to Native American Tribes

Part 1: Tribal Sovereign Immunity

There has been much confusion about whether federal disability civil rights laws apply to Native American tribes. Federal law recognizes the sovereign authority of Native American tribes to govern themselves. An important aspect of sovereignty is the doctrine of sovereign immunity; where in most situations, state and federal courts do not have the jurisdiction to hear private lawsuits brought against Native American tribes.

The United States Supreme Court has consistently reaffirmed this doctrine, and Congress has consistently legislated against this backdrop to promote the "goal of Indian self-government, including its 'overriding goal' of encouraging tribal self-sufficiency and economic development."1 Tribal sovereign immunity serves an important purpose in protecting and promoting tribal self-government. The right to assert immunity to a lawsuit includes the right to avoid the costs and general consequences associated with discovery and trial.2 Being subjected to lawsuits could deplete tribal assets and "also impose serious financial burdens on many, already financially disadvantaged tribes."3

Under federal law, Native American tribes can only be sued where Congress has authorized the lawsuit through language within a statute that specifically abrogates (acts to waive) the immunity or where the tribe has waived its immunity explicitly.4 Congressional waiver of tribal sovereign immunity is a serious issue that courts will not assume lightly. Courts will construe federal statutes liberally in favor of the tribes when it is not clear whether Congress had intended to restrict tribal sovereignty.5

This immunity does not mean that a Native American tribe can blatantly disregard federal law. It restricts the remedies available to private individuals. Tribal sovereign immunity does not protect against an enforcement action by the United States government due to its superior sovereign powers.6

Part 2: Tribal Sovereign Immunity and Specific Laws

Americans with Disabilities Act (ADA):

It has largely been assumed that Congress specifically excluded Native American tribes from the ADA. This conclusion may be incomplete and erroneous if the ADA is looked at on a Title-by-Title basis.7

Title I of the ADA which deals with employment does specifically exclude an "Indian Tribe" from the definition of an employer.8 This language was borrowed from Title VII of the Civil Rights Act of 1964, which forbids employment discrimination based on race, color, religion, sex, or national origin.9 Any employment discrimination suit against a tribe or its officials under Title I will likely be dismissed for lack of subject matter jurisdiction by the courts.

Title II of the ADA, which regulates state and local governments, makes no mention of "Indian Tribes" in defining "public entities."10 Presumably, Congress excluded tribal governments out of respect for their sovereignty. Since Title II clearly defines its applicability to programs, services, and activities run by state and local governments, Title II would probably not apply to programs, services, and activities run by Tribal governments.

Title III requires places of public accommodations to be accessible to people with disabilities. Again, there is no mention of applicability to "Indian Tribes." However, one federal appellate court has ruled that Title III can apply to public accommodations run by Indian Tribes.11 The Eleventh Circuit reasoned that Congress intended Title III to apply universally. A general statute presumably governs Indian tribes unless its application would (1) abrogate rights guaranteed under a treaty, (2) interfere with Indian's right to self-government, or (3) contradict Congressional intent.12 Tribe-run businesses acting in interstate commerce do not fall under the "self-governance" exception if the business does not relate to the government function.13

Even if Title III applied to Native American tribes, the Eleventh Circuit held that tribes could still assert their sovereign immunity in a private lawsuit. Congress did not express their intention to waive tribal sovereign immunity anywhere in the ADA. The only way Title III can be enforced against the tribes is through the United States. If there is a pattern of discrimination or the discrimination raises an issue of general public importance, Title III allows the Attorney General to bring a civil lawsuit to compel a tribe's compliance with the statute.14 Therefore tribal-owned businesses should seriously consider complying with Title III or risk facing various penalties brought by the United States.15

Section 504 of the Rehabilitation Act:

There is much confusion about whether a Native American tribe waives its sovereign immunity to the Rehabilitation Act by accepting federal funds. However, there is no explicit language in the Rehabilitation Act conditioning the waiver of tribal sovereign immunity on the receipt of federal funding.16 Congressional waiver of tribal sovereign immunity cannot be implied but must be unequivocally expressed.17

As one federal appellate court pointed out, the Rehabilitation Act does expressly reference how the Act is to apply to Native American tribes.18 Section 504 prohibits discrimination on the basis of disability in any program or activity that receives federal financial assistance.19 "The term 'program or activity' means all of the operations of a department, agency, special purpose district, or other instrumentality of a State or of a local government."20 The Rehabilitation Act defines "local agency" as:

an agency of a unit of general local government or of an Indian Tribe which has an agreement with the designated State agency to conduct a vocational rehabilitation program under the supervision of such State agency...21

Therefore, not every Native American Tribe or its subdivisions is considered a "local agency" for the purposes of the Rehabilitation Act. The Rehabilitation Act does not directly apply to tribal agencies (other than educational agencies)22 that do not have an agreement with a designated state agency to conduct a vocational rehabilitation program.23

Even if Section 504 may not directly apply to a Native American tribe receiving federal funding, it could still indirectly apply through the federal agency that disburses the funding. Section 504 prohibits a federal agency like the Bureau of Indian Affairs from conducting any program or activity that discriminates on the basis of disability.24 Failure by tribes to follow the mandates of Section 504 may result in the revocation of federal funding.

Like Title III of the ADA, a private individual probably would not be able to sue a Native American tribe for violations of the Rehabilitation Act. The tribes still retain their sovereign immunity even if they agree not to discriminate in violation of federal law upon receipt of federal funding.25

Architectural Barriers Act (ABA):

The Architectural Barriers Act26 requires that buildings and facilities that are designed, constructed, or altered with federal funds comply with Federal standards for physical accessibility. Tribal buildings and facilities designed, built, or altered with the use of federal funds must comply with the Uniform Federal Accessibility Standards (UFAS).

The Access Board, an independent federal agency, is in charge of enforcing the ABA. Native American tribes cannot assert sovereign immunity against the government.

Individuals with Disabilities Education Act (IDEA):

The IDEA provides funds to help schools (K-12) provide "a free, appropriate public education" in "the least restrictive environment" to children with disabilities.27 The Bureau of Indian Affairs (BIA) distributes IDEA funding to tribal schools and provides the procedural safeguards and administrative processes through their Office of Indian Education Program. In order to receive IDEA funds, BIA-funded schools must demonstrate that they have special education, policies, procedures and programs that are consistent with the BIA's standards.28

As the case under Section 504, a federal district court in Minnesota recognized that a tribe did not waive its immunity simply by accepting IDEA funds.29 The waiver cannot be implied but must be "unequivocally expressed."30 Nothing in the language of the IDEA expresses Congress's intent to abrogate tribal immunity upon receipt of IDEA funds.31 The federal court was unsure though what role the tribal courts had in enforcing IDEA but stated that IDEA-related lawsuits against tribal schools cannot proceed in federal court.

Federal Housing Laws - Fair Housing Act, Section 504, and the ADA:

The Fair Housing Act (FHA) prohibits discrimination in the sale, rental and financing of dwellings based on race, color, religion, sex or national origin, familial status, and disability. In addition to prohibiting discrimination on the basis of disability, the FHA contains design and construction accessibility provisions for certain new multifamily dwellings.32

According to the Department of Housing and Urban Development, the requirements of the FHA do not apply to Indian Tribes and their tribally designated housing agencies (TDHE) for housing funded by the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA). However, these funds trigger the accessibility requirements of Section 504 of the Rehabilitation Act. It is also HUD's position that the Fair Housing Act does apply to State-recognized Indian tribes and their TDHEs. Added to this confusion is that state-created TDHEs may be subject to Title II of the ADA since they are considered public entities. 33

Private lawsuits for violations of these federal laws would face the same sovereign immunity obstacle since Congress did not explicitly waive tribal immunity with them. Enforcement would be carried out by HUD and any housing complaints may be referred to a tribal housing agency.

Part 3: Alternatives for Enforcement

Ultimately, individual Native Americans with disabilities seeking to enforce their rights may be at the mercy of the federal government. It is not clear how willing the federal government would be in enforcing federal disability civil rights laws on tribal land out of respect for tribal sovereignty. The Eleventh Circuit suggested that the Attorney General had the power to enforce Title III of the ADA on tribal businesses, but there are no Department of Justice regulations that address this issue or whether this power of enforcement can be assigned to the Department of Interior, which oversees the tribes through its Bureau of Indian Affairs.

An alternative option for those seeking to create and enforce protections for Native Americans with disabilities is to enact ordinance/legislation at the tribal level that invokes the spirit of the federal disability laws. The difficulty with this course of action lies in the varying nature of tribal legal systems. One tribe may have, certainly by choice, a simple relatively unsophisticated legal system with practical governance of natural resources, a simple law enforcement scheme, but little in the way of litigation systems. Another tribal government's legal set-up may look more like sophisticated municipal governments, and other tribal governments are nearly as broad in scope of their justice schema as some state governments. If choosing to develop access to a full set of rights for people with disabilities on tribal lands is the goal, one must consider the available legal remedies and appellate relief within that tribe. Would the current tribal legal system offer a fair hearing of grievances against the tribal government as it exists? What changes would need to be made? What impact would such changes have on the very nature of tribal identity and the way tribes are governed?

The Rural Institute on Disabilities published a report in 1996 on the effort of establishing legal protections for people with disabilities on tribal lands. Five case studies were discussed, detailing the process of intervention and advocacy in five tribes diverse in size, and governmental construction. The report detailed an intervention model title the Tribal Actualization Process, where advocates identified, and then collaborated with key tribal leaders to discuss fundamental needs of tribal members with disabilities. The researchers and advocates then sought their buy-in to the process of further and more formal discussion before the tribal authority. From that point, the case studies detailed a process of tribal assets and needs evaluation, and discussion on the cultural implications of disability.34

The results of the study indicate that some legal protections are clearly available despite the configuration of the tribal government. In fact, some important changes occurred during the study period. One tribal government addressed a significant architectural barrier in a community space. Other tribal governments passed resolutions in support of the rights of tribal remembers with disabilities, and another changed its employee policies to be non-discriminatory.35 While clearly this indicates a pursuit of rights through a lengthy process, it seems to have been a workable solutions for both (1) working toward enriching the rights of tribe members with disabilities and (2) respecting the cultural expectations of Natives and their government's sovereignty.

1 Oklahoma Tax Comm'n v. Potawatomi Tribe, 498 U.S. 505, 510 (1991).
2 Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993).
3 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 64-65 (1978).
4 Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754 (1998).
5 See Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985); Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247 (1985).
6 Reich v. Mashantucket Sand & Gravel, 95 F.3d 174, 182 (2nd Cir. 1996); Quieleute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459-60 (9th Cir. 1994).
7 Numerous court cases have looked at the ADA on a Title-by-Title basis in a sovereign immunity analysis. E.g. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001); Hason v. Medical Bd. Of Cal., 279 F.3d 1167 (9th Cir. 2002).
8 42 U.S.C. § 12111(5)(B)(i).
9 See 42 U.S.C. § 2000e(b)(1).
10 See 42 U.S.C. § 12131(1).
11 Florida Paraplegic Ass'n v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126 (11th Cir. 1999).
12 Id. at 1129; See Donovan v. Coeur d'Arlene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985).
13 Id.
14 42 U.S.C. § 12188(b)(1)(B).
15 See 42 U.S.C. § 12188(b)(2) for the various penalties.
16 Unlike the specific language abrogating a State's Eleventh Amendment sovereign immunity in 42 U.S.C. § 2000d-7.
17 See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 (1978).
18 Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282, 1289, 1292 (11th Cir. 2001).
19 See 29 U.S.C. § 794(a).
20 29 U.S.C. § 794(b)(1)(A).
21 29 U.S.C. § 705(24).
22 With respect to education, the Rehabilitation Act defines "program or activity" as to include all the operations of a college, university, or other postsecondary institution, or a public system of higher education; 29 U.S.C. § 794(b)(2)(A) and elementary school and secondary schools funded by the Bureau of Indian Affairs. 29 U.S.C. § 794(b)(2)(B); 20 U.S.C § 8801(19)(C).
23 Sanderlin at 1292.
24 29 U.S.C. § 794.
25 Sanderlin at 1288-9.
26 42 U.S.C. §§ 4151 et seq.
27 20 U.S.C. § 1400.
28 A discussion of the eligibility requirements and administrative procedures under IDEA for BIA-funded schools is outside the scope of this article. However, the BIA has a publication that does the trick. Eligibility Document to Meet the Requirements of the Individuals with Disabilities Education Acts. This document can be found on the web at
29 Guthrie v. Circle of Life, 176 F.Supp.2d 919 (D. Minn. 2001). Parents had brought the lawsuit seeking to recover attorney's fees from a prior administrative action on behalf of their daughter under IDEA. They did so pursuant to 20 U.S.C. § 1415(i)(3) which gives district court jurisdiction over such matters.
30 However, in C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U. S. 411 (2001), the Citizen Band Potawatomi tribe had waived their immunity through an arbitration clause in a contract; which allowed arbitration awards to enforced in "any court having jurisdiction thereof". The Supreme Court reminded that the words "sovereign immunity" do not have to be used for a tribe to explicitly waive their immunity. The Supreme Court has compared Spending Clause legislation like the IDEA as being a similar to a contract. See Barnes v. Gorman, _ U.S. _, 122 S.Ct. 2097 (2002). An argument can be made that by accepting IDEA funds and knowing that 20 U.S.C. § 1415(i)(3) gives jurisdiction to the district court to hear attorney's fees issues, the White Earth Band of Chippewa Indians (who run the Circle of Life School) knowingly waived their sovereign immunity on that issue.
31 As opposed to 20 U.S.C. § 1403 which abrogates a State's Eleventh Amendment sovereign immunity.
32 42 U.S.C. § 3601 et seq.
33 U.S. Department of Housing and Urban Development Office of Public and Indian Housing Notice PIH 2003-26 available at
34 Fowler, L., et al (1996), Establishing Legal Protections for Tribal Members with Disabilities: Five Case Studies, The University of Montana, Rural Institute on Disabilities.
35 Id. at 53.

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