Blaine Green: What Attorneys Get Wrong About Native American Law

While most lawyers “have at least heard of tribal sovereignty and know that tribes have a unique legal status, many attorneys — and especially their non-Indian clients — do not understand the origin, nature and extent of that sovereignty,” said Blaine Green, who leads Pillsbury’s Native American Law practice.

Attorneys outside of Native American law often believe that the federal government conferred sovereignty on tribes, but “that’s backwards,” as tribes existed before the United States came into being and “retain sovereignty except to the extent expressly terminated by federal law or ceded by treaty,” Green said.

He added that while some attorneys may believe a tribe’s laws and jurisdiction only apply to its own members, tribes’ authority over their territory “means that a tribe can potentially regulate and tax non-Indians on the tribe’s land, as well as assert tribal court jurisdiction over non-Indians.”

Those tenets are now being put to the test in the Cherokee Nation’s suit against Wal-Mart Stores Inc., Walgreens Boots Alliance Inc., and other pharmacies and distributors for alleged failure to check the spread of illegally prescribed opioids, he said.

The companies are currently seeking to have the case heard in Oklahoma federal court, saying the Cherokee Nation is improperly claiming broad authority over nonmembers in a large swath of northeast Oklahoma.