The Clean Water Act’s Waiver of Sovereign Immunity

In an apparent whistle-blower action, the former head of public works for the Viejas Indian Tribe is asking for $3 million in damages and his old job back, because, he says, he was fired after complaining that a tribal elder's cattle were polluting a creek that drains into the Loveland Reservoir. The courts have ruled that under the provisions of the Clean Water Act, tribes cannot get the suit dismissed by claiming sovereign immunity.

According to the San Diego Union-Tribune, Jamal Kanj, 50, was fired in 2005, but tribal officials say it was because of his poor work. Lawyers for the tribe tried to get the case thrown out, claiming sovereign immunity, but the Department of Labor has held -- and the courts have affirmed -- that Congress abrogated tribal immunity with regard to the whistle-blower sanctions of the Clean Water Act. In Osage Tribal Council v. Department of Labor, the 10th U.S. Circuit Court of Appeals ruled that since Congress included tribal governments within the definition of municipalities, they were subject to the whistle-blower provisions of the act just as municipalities are.