Running Head: The Doctrine of Sovereign Immunity 1

The Doctrine of Sovereign Immunity

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Sovereignty by definition is the full right of a nation to govern itself without

outside influences. Tribal sovereignty differs in that tribes and its citizens reside

within the boundaries of the United States, have a trust relationship with them, and

are under plenary power of the legislative body. One item of sovereignty that is

enjoyed by tribal sovereigns is the ability to be immune from suit by its citizens and

non-citizens. Federal and state governments have the same concept of sovereign

immunity but it has had their respected limits. Again, tribal sovereignty is unique in

that tribal sovereigns have virtually practiced unlimited sovereign immunity in

many cases. The purpose of this paper is to compare and contrast the sovereign

immunity of the federal and state governments of the United States to tribal

sovereigns and explain how tribal sovereign immunity was created.

The idea of sovereign immunity has European royalty roots, in that the king

of England did not want his people to be able to bring suit against him. Common law

derived from this sovereign and along with it the immunity of suits against itself.

The sovereign created the laws and could not be held accountable in courts. The

king or queen becomes unaccountable for their actions and are essentially outside

of the law. Since these same European nations settled on the North American

continent and formed their own sovereign nation known as America, they in return

brought their view of sovereign immunity with them and applied it to the tribal

nations they encountered (Wilkins and Lomawaima p. 220). Another explanation of

how sovereign immunity was created is it was a way to balance the branches of

government and to protect the government’s actions from unjust judicial intrusion

without its consent. The idea that the government could do no wrong and should not
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be held accountable by its people has lost much of the allure it once had. It turns out

that in order to have a stable government for the people, the government should not

exist outside of the laws it creates.

States in the Union could see the importance of sovereign immunity and

made sure to ratify the 11th amendment which states “The Judicial power of the

United States shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign State.” (U.S. Const. amend. XI) This

amendment was added to the constitution in reaction to the decision of Chisolm v.

Georgia, in which the Court ruled that a private citizen could bring suit against their

state and other state governments and the federal court would hear the cases,

stating that they did not enjoy sovereign immunity. Albeit many states have since

abolished or diminished state immunity since the amendment was instituted,

sympathizing with the injustices the defendants were suffering at the hands of the

plaintiff, which was the state. Also, the benefits of having immunity were being

outweighed by how it was harming the state’s citizens (Mclish p.174). The states

that kept sovereign immunity have limited the doctrine and distinctly distinguished

the states government and proprietary acts. If a suit is brought to the court that is of

a proprietary matter, then the state labels itself like a private citizen and if it’s a

governmental suit, the state will recognize their sovereign immunity (Mclish p. 175).

Federal sovereign immunity has not been so reluctant to repeal or weaken

their immunity. Although legislatively, by passing of the Federal Tort Claims Act, the

federal government’s sovereign immunity has diminished. The FTCA is a federal

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statute that allows private citizens to bring suit against the United States

government through proper procedures. Corporations created by the federal

government do not have sovereign immunity, unless Congress explicitly gives

permission for the immunity. When the government acts in a commercial way, the

doctrine of sovereign immunity does not apply in these matters (Mclish p.178)

Tribal sovereign immunity was created in 1940 after the decision in U.S. v.

U.S. Fidelity & Guaranty Co. when the court stated that dependent sovereigns were

exempt from suit without consent, just like the dominant sovereign. To bring even

more clarity to the doctrine of sovereign immunity for tribes, the court held that

without the consent of Congress, tribes were exempt from suit. Supporters of the

doctrine find that it helps support the tribes economically because it protects tribal

governments from detrimental suits as well as recognizing tribal nation’s

sovereignty. Critics of the doctrine argue that outside entities that would interact

with tribes in contracts and business opportunities would be steered from

participating with tribes in this manner in fear that the doctrine would be used to

pull out of deals (Huitsing p. 216).

The difference in state, federal, and tribal sovereign immunity is that the

proprietary acts of tribes have not been separated from governmental acts, like they

have been in federal and state governments. Tribal governments have even been

given a broader sense of immunity by the court because it has held that tribe’s

economical practices as governmental and not as private companies, held no

material. The Court has, however, had the opportunity to reject tribal sovereign

immunity but would rather hand that power over to Congress. The Court, even with
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their doubts, has sustained tribal sovereign immunity in their decisions that are of

concern to the concept. Tribes have been able to hold on the sovereign immunity

from commercial as well as governmental acts on reservations and off the

reservation. The only way that a tribe can come under suit is with the authorization

of Congress or the tribe itself (Huitsing p. 216).

An inherent right of all sovereigns is protection from suit against itself. The

purpose has been that the suit could damage assets held or enjoyed by many people.

The future of functions for the governments is held in mind as well when

implementing immunity from suits. This is particularly important for tribal

governments because it creates a sense of security, something that tribal

governments have not always had.

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References

Huitsing, E. J. (2002). The Ability of Native American Tribes to Waive Their Tribal

Sovereign Immunity in Clear and Unequivocal Contracts to Arbitrate. Journal

of Dispute Resolution,2002(1), 213-225.

Mclish, T. P. (1988). Tribal Sovereign Immunity: Searching for Sensible

Limits. Columbia Law Review, 88(1), 173. doi:10.2307/1122572

U.S. Const. amend. XI

Wilkins, D., & Lomawaima, T. (2002). Uneven Ground: American Indian Sovereignty

and Federal Law. Norman: University of Oklahoma Press.