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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-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 Law.