ELR Citation: ELR 21421
No(s). 97-9564 (10th Cir. Aug 4, 1999)

The court upholds the U.S. Department of Labor's determination that a Native American tribal council is not entitled to tribal sovereign immunity in an underlying case in which the council allegedly violated the Safe Drinking Water Act's (SDWA's) whistleblower employee protection provisions. The court first holds that the denial of tribal immunity is an immediately appealable collateral order. Were this case erroneously permitted to proceed further, the council's absolute entitlement to immunity from suit would effectively be lost. Moreover, the question of tribal sovereignty is conclusive of whether the tribe must bear the burden of the administrative proceeding, and the question of tribal sovereignty is distinct from the underlying merits of the case. The court next holds that the SDWA abrogates tribal immunity. The U.S. Supreme Court recently reaffirmed the doctrine of tribal immunity, however, Congress may abrogate a tribe's immunity from suit by statute and the SDWA contains a clear and explicit waiver of tribal immunity. Where Congress grants an agency jurisdiction over all "persons," defines "persons" to include "municipality," and in turn defines "municipality" to include "Indian tribes" in establishing a uniform national scheme of regulation of so universal a subject as drinking water, it has unequivocally waived tribal immunity. The court additionally holds that the SDWA does not conflict with other tribal statutory or treaty rights. Last, the court rejects the council's argument that the Labor Department violated its trust obligations.

Counsel for Petitioner
F. Browning Pipestem
F. Browning Pipestem & Associates
111 N. Peters Ave., Norman OK 73069
(405) 329-3840

Counsel for Respondent
Ellen L. Beard
Office of the Solicitor
U.S. Department of Labor
200 Constitution Ave. NW, Rm. N-2700, Washington DC 20210
(202) 219-6666

Before Anderson and Murphy, JJ.