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Andrea M. Seielstad
excerpted from: The Recognition and Evolution of Tribal Sovereign Immunity under Federal Law: Legal,
Historical, and Normative Reflections on a Fundamental Aspect of
American Indian Sovereignty , 37 Tulsa Law Review 661-776, 661-669
(Spring 2002) (500 Footnotes)
"It is inherent in the nature of sovereignty, not to be amenable
to the suit of an individual without its consent. This is the general
sense and the general practice of mankind; and the exemption, as one of
the attributes of sovereignty, is now enjoyed by the government of every
state in the union."
"[Indian tribes are] distinct, independent political
communities, retaining their original natural rights . . . ."
"As separate sovereigns pre-existing the Constitution, tribes
have historically been regarded as unconstrained by those constitutional
provisions framed specifically as limitations on federal or state
authority. . . . Indian tribes have long been recognized as possessing
the common-law immunity from suit traditionally enjoyed by sovereign
powers."
"[Tribal immunity] predates the birth of the Republic[.]"
The doctrine of sovereign immunity is a curious feature of
Anglo-American jurisprudence. It is a doctrine that has long and widely
been hailed in the United States as essential to the sovereignty of a
nation or state, transcending definitional categories and extending to
the legal definitions of sovereignty developed with respect to many
kinds of sovereign entities. Firmly rooted in federal common law, the
doctrine of immunity protects the federal government as well as the
states from nonconsensual suit, except in certain narrowly prescribed
circumstances. Sovereign immunity also has been recognized under federal
law with respect to foreign nation-states and American Indian
nation-tribes, entities that are external to the constitutional system
of government.
The principle of sovereign immunity is deeply imbedded in our
constitutional system of government and in the ordering of power and
relationships between the different sovereign entities such as American
Indian tribes and foreign nations, which intersect it.
Jurisprudentially, the doctrine has been established virtually as a
sacrosanct corollary of sovereign authority: namely, if an entity is
recognized under federal law as possessing an independent and inherent
basis for exercising sovereign authority, it will naturally be immune
from suit unless certain circumstances, also recognized under federal
law, occur to abrogate that immunity. As an interpretive matter,
therefore, the recognition of sovereign immunity and the force of law it
is afforded depends significantly on the extent to which an entity's
sovereignty is recognized as a matter of federal law. Principles of
federalism and notions regarding the proper allocation of power and
decision-making authority between the states, federal government,
tribes, and foreign nations therefore permeate and influence the law of
sovereign immunity.
In recent years, the United States Supreme Court has been active in
defining a kind of "new federalism" in which states have
gained increasing authority vis-à-vis the federal government, and
Congress has been constrained in enacting legislation that could
conceivably impose unwanted limits or requirements on states. Consistent
with this trend, the Rehnquist Court has decided a number of cases
regarding state immunity from suit, all of which have been protective of
state immunity.
During this same period of time, the Court also has been active in
altering the contours of tribal sovereignty. In contrast to its
jurisprudence with respect to the states, however, the Rehnquist Court
has been considerably less protective of tribal sovereignty. For
instance, it has limited tribes' exercise of regulatory and judicial
jurisdiction and other aspects of sovereign authority. In the process,
it has reversed some of the presumptive rules of interpretation that
previously applied to tribal sovereignty.
Significantly, however, the Court has declined to reverse precedent
recognizing and establishing the doctrine of tribal immunity. In May
1998, the Court expressly reaffirmed the principle of tribal sovereign
immunity, rejecting a challenge to the application of tribal immunity
brought in the context of a business dispute between the Kiowa tribe and
a non-Indian enterprise. In doing so, it continued a longstanding
tradition of federal common law in which tribal immunity has been
recognized as a fundamental and inherent attribute of tribal
sovereignty. The evolution and development of this tradition is at the
heart of this paper and is described more fully below.
While the federal judiciary has developed one line of reasoning and
precedent with respect to tribal immunity, Congress also has considered
and enacted legislation addressing the sovereign immunity of tribes,
circumscribing tribal immunity in certain narrowly prescribed
circumstances. Similarly, the federal government through its Executive
Branch has demonstrated a longstanding commitment to tribal sovereignty.
While each of the branches have developed their own jurisprudence and
policies with respect to tribal immunity, Congress and the Court--often
in concert with the Executive Branch--have engaged in substantive
dialogue about the appropriate scope of tribal immunity. This dialogue
in itself has been influential in defining the parameters of tribal
immunity.
In its 1998 decision in Kiowa Tribe of Oklahoma v. Manufacturing
Technologies, Inc., for instance, the Court presented a number of
"reasons to doubt the wisdom of perpetuating the doctrine"
while "defer[ring] to the role Congress may wish to exercise in
this important judgment." Congress, at the time the Court
deliberated over and rendered its decision in Kiowa Tribe, was actively
reconsidering the doctrine, and the Court was aware of this fact. After
months of deliberation and Congressional hearings, however, Congress
declined to implement the sweeping changes recommended by the Court. In
2000 Congress enacted legislation that, in the end, had little
substantive impact on the scope of tribal immunity. The Supreme Court
has not altered the Court's fundamental position regarding tribal
immunity even as it addressed the issue in the context of a specific
contractual provision.
Significantly, Congress and the Supreme Court, each faced with
argument and testimony advocating a change in tribal immunity, declined
to change significantly the status quo with respect to tribal immunity.
While Congress has carved out some exceptions to tribal immunity in
certain contexts, the legal principle that tribes retain an inherent
immunity from suit persists as a matter of federal law. Tribes, like
states, the federal government, and foreign nations, continue to enjoy a
natural immunity from suit, an immunity that has been derived from the
recognition under federal law of each entity's sovereign status. Unless
a tribe expressly and unequivocally waives such immunity or Congress
clearly and unmistakably abrogates it, tribes may not be hailed into
court.
This Article traces the recognition and evolution of tribal sovereign
immunity as the doctrine has emerged under federal law, including
federal statutory law, judicial precedent, and selected orders and
actions of the Executive Branch. It examines the theoretical
underpinnings of the doctrine, as reflected in federal common law and in
the public policies debated and enacted by Congress. It synthesizes
various strands of contemporary debate about the topic, and documents
the way in which the doctrine has been shaped by interplay and dialogue
between the different branches of the federal government. Written in
light of a number of recent judicial decisions and legislative
enactments, it is intended as a reflective piece about the development
of tribal sovereign immunity. The hope is that it may serve also as an
interpretive backdrop for future legislative debate and litigation
regarding tribal immunity and, more generally, for comparative
consideration of the law of sovereign immunity that has developed with
respect to states and the federal government.
The Article makes the following observations. First, despite recent
legislative proposals to eviscerate tribal immunity and opportunities to
delimit its scope through federal litigation, the doctrine of tribal
immunity remains surprisingly intact, relatively free from unwanted
incursions by state and private entities and subject only to abrogation
by the federal government. As set forth more fully below, it is firmly
rooted in contemporary and historical decisions of the Supreme Court. It
has remained intact even while the Supreme Court has limited other
aspects of tribal sovereignty such as the civil adjudicatory
jurisdiction of tribal courts. With few exceptions, the doctrine of
tribal immunity has been protected by Congress. It has been protected
even in the face of legislative proposals that would have resulted in
wholesale evisceration of the doctrine and even in view of Congressional
testimony revealing instances inwhich immunity barred a remedy to
persons injured by tribal governments or officials. Its survival in the
face of significant adversity is testimony to the enduring and inherent
nature of the sovereignty of American Indian tribes.
Analyzing the development of the doctrine of tribal immunity,
including the basis for its authority and the way in which it has
evolved, also provides unique insight into the meaning of the doctrine
of immunity as a more general principle of Anglo-American jurisprudence.
So long as a governmental entity is recognized by the United States as
possessing some form of sovereign status, then basic suit immunity is
deemed to attach, subject only to abrogation by Congress or by voluntary
waiver by persons authorized to speak on behalf of the relevant
sovereign entity. The fact that suit immunity is universally
recognized--no matter how perceptively weak, foreign, inferior or
marginalized the sovereign entity is within the federal system may be
construed as proof of the fundamental nature of the link between
sovereignty and immunity. The fact that immunity has emerged as an
inherent and essential corollary that attaches to a number of types of
sovereignty, each with different historical and legal bases for their
sovereignty, is further indication of this fact.
An analysis of the emergence and development of the doctrine of
tribal immunity reveals that tribal immunity from suit is something that
is consistently recognized as arising inherently from tribes'
long-recognized and firmly rooted sovereignty. Developed without
reference to or basis in the Constitution, the doctrine emerges and is
perpetuated in the precedent of the Supreme Court as a veritable truth
or natural law of sovereignty. The doctrine has proven to be resilient
even in the face of contemporary criticism of the doctrine, and it
remains intact even as other areas of tribal sovereignty have been
eroded by contemporary decisions of the Court. Its resilience may be
attributed to the general Anglo-American reverence for immunity as much
as it may be construed as testimony of the ongoing strength of tribal
sovereignty. As such, in-depth exploration of the development of the
doctrine of immunity in the context of tribal sovereignty provides an
opportunity to examine the underlying historical, political, and
jurisprudential rationales behind the doctrine.
Finally, studying the development and evolution of tribal immunity
presents an opportunity to explore many of the practical and normative
consequences of immunity as a general corollary of sovereignty. It also
provides a context for exploring the dynamics and force of interbranch
dialogue and constitutional interpretation.
Part II of this Article briefly summarizes the contours of the
federal law of sovereign immunity with respect to the federal
government, states, and foreign nations.
Part III traces the development of the federal common law of tribal
immunity through decisions of the United States Supreme Court and, to
some extent, other courts within the federal judiciary.
Part IV examines Congressional activity in the area of tribal
immunity.
A brief discussion of the Executive Branch's protection of tribal
sovereignty, self-determination, and economic development is set forth
in Part V.
Part VI synthesizes the various strands of federal law regarding
tribal sovereign immunity, describing the doctrine's impact on tribal
self-governance and economic development and setting forth interpretive
possibilities for future litigation and dispute- resolution in the area.
Finally, the Article concludes in Part VII with a challenge to tribal
governments to take advantage of the current state of the law regarding
tribal immunity and continue to enhance their legitimacy and powers of
self-governing by developing and strengthening appropriate remedies for
tribal members and others to obtain redress for disputes with tribal
governments.
[1]. Associate Professor of Law, The University of Dayton College of
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