Serving Tribal Authorities With Subpoenas: Considerations

| by Max Soni

Last Updated on: 2nd October 2023, 05:52 pm

Serving Tribal Authorities With Subpoenas: Considerations

When litigation involves Native American tribes or tribal members, attorneys often need to serve subpoenas on tribal authorities to obtain testimony or records. However, the sovereign status of tribes can complicate the subpoena process. This article examines the issues involved in serving subpoenas on tribal authorities and provides guidance for attorneys.

Tribal Sovereignty

Federally recognized Indian tribes possess sovereign immunity, meaning they are generally immune from lawsuits unless the tribe waives immunity or Congress abrogates it [5]. This extends to discovery – tribes can assert immunity from subpoenas requesting testimony or records [4].

However, tribal sovereignty has limits. For example, tribes lack jurisdiction over non-Indians for criminal matters under Oliphant v. Suquamish Indian Tribe. And federal courts can hear cases involving tribes under federal question or diversity jurisdiction.

So while tribal sovereignty must be considered, it does not provide absolute immunity from subpoenas in all cases. The enforceability of a subpoena depends on factors like where it is served, the type of case, and who possesses the records.

Location of Service

A key factor is whether the subpoena is served on tribal lands. Tribal sovereignty is strongest over their own territory. So subpoenas served on tribal lands face a higher threshold [5].

For example, in Bonnet v. Harvest, the court held that tribal sovereignty must be considered when weighing discovery requests served on tribal land [3]. However, it did not grant absolute immunity.

Meanwhile, subpoenas served on tribal authorities off tribal lands, such as at a deposition, generally face fewer obstacles. Courts are more willing to enforce them.

Type of Case

The type of case also impacts the enforceability of a subpoena against a tribe.

In criminal cases, courts have held that tribes must comply with subpoenas from federal grand juries investigating crimes under the Major Crimes Act, which gives the federal government jurisdiction over serious crimes committed on tribal land [2].

In civil cases, enforceability depends on factors like whether the tribe is a party and the connection between the subpoena and tribal self-governance. If the subpoena deals with off-reservation commercial activities, courts are more likely to enforce it [4].

Possession of Records

Who possesses the records being subpoenaed also matters. Tribes have a stronger claim to resist subpoenas for records held by tribal agencies or entities. But they have less ability to resist subpoenas for records held by individual tribal members.

For example, in United States v. James, the court ruled that a tribe could not quash a subpoena served on a tribal member for their business records, even if those records were located on tribal land.

Tribal Law

Beyond federal law, attorneys also need to examine relevant tribal law regarding subpoenas. Many tribes have statutes or court rules governing subpoena procedures in tribal court.

While tribal law does not impact subpoenas from federal or state court, understanding tribal procedures can help in negotiating with tribes over subpoenas. Tribes may be more willing to comply if subpoenas follow appropriate tribal law [5].

Subpoena Requirements

To increase cooperation, attorneys should ensure subpoenas to tribes meet all procedural requirements, like:

• Serving the subpoena a reasonable time before the production date
• Paying appropriate witness fees and mileage costs
• Providing specific descriptions of testimony and records sought
• Serving the subpoena on the proper tribal official

Complying with requirements shows respect for tribal sovereignty and makes it harder for tribes to successfully move to quash subpoenas in court.

Seeking a Protective Order

If a subpoena imposes an undue burden on a tribe or seeks privileged information, tribes can seek a protective order from the court.

Attorneys should carefully assess if a subpoena requests confidential information on sensitive tribal matters like membership, ceremonies, or governance. Overly broad subpoenas may be limited by a protective order.

Alternative Discovery

When facing resistance, attorneys have alternatives to subpoenas for obtaining tribal information, including:

• • Requesting the court directly order production of specified records
  • Using requests for admission to have tribes admit or deny facts
  • Deposing former tribal employees without subpoenaing the tribe
  • Interviewing cooperative tribal members

Individual tribal members may be willing to voluntarily provide information through interviews, even if the tribe resists a subpoena. While their cooperation is not guaranteed, some members could offer testimony or records relevant to a case.

However, attorneys need to take care not to infringe on tribal self-governance or seek privileged information during these interviews. Questions should focus on the specific facts and documents needed for the case.

• • Seeking federal assistance

In some cases, federal authorities may be able to obtain tribal information through investigation or cooperation agreements. For example, federal agencies like the FBI and IRS conduct investigations on tribal lands. If they gather information relevant to a case, it may be discoverable.

The Department of Justice also maintains over 200 cross-deputization agreements with tribes under the Tribal Law and Order Act. These agreements empower both tribal and federal law enforcement to cooperate on investigations and share resources [1].

• • Requesting state assistance

Similar to federal agencies, state law enforcement may be able to gather information from tribes through cooperation agreements. Many states have established partnerships with tribes for policing, prosecutions, and information sharing [2].

If state agencies have relevant tribal information, attorneys may be able to obtain it through discovery or public records requests.

• • Using mutual aid agreements

Over 150 tribes now have mutual aid agreements with neighboring law enforcement agencies through the Tribal Resources Grant Program [3]. These agreements allow cooperation on law enforcement activities between tribal, federal, state, and local agencies.

Attorneys should examine if any mutual aid agreements could provide avenues for obtaining tribal information related to a case.

• • Leveraging intergovernmental agreements

Tribes and states routinely establish intergovernmental agreements addressing law enforcement powers, cross-deputization, information sharing, and other cooperative arrangements [4].

If an existing agreement provides for sharing information relevant to a case, attorneys may be able to lawfully obtain it from state or tribal partners.

• • Using tribal-state court forums

Many states have joint tribal-state court forums aimed at improving cooperation on issues like family law, child welfare, and civil jurisdiction [5]. These forums could potentially provide means for state judges to formally request relevant information from tribes.

• • Understanding information sharing regulations

Federal regulations allow tribal, state, and federal law enforcement agencies to share information in specific circumstances, such as preventing imminent threats or serving warrants [6]. Understanding these regulations can assist attorneys in lawful information gathering from tribes.