Tribal immunity is the doctrine of sovereign immunity applied on behalf of Native American tribes. Under the Indian Commerce Clause, Congress has "plenary " authority over the tribes. Courts have held that these tribes cannot be sued without the consent of Congress. The doctrine of tribal immunity, however, is a judicially created doctrine that the federal courts have independently fashioned.
At least one Supreme Court Justice has noted the necessity of a more principled analysis of the doctrine of tribal immunity, expressing "doubts about the continuing vitality in this day of the doctrine of tribal immunity as it was enunciated in the case of the United States v. United States Fidelity and Guaranty Co. " and "the view that that doctrine may well merit re—examination in an appropriate case. "
The doctrine first emerged in the case of the United States v. United States Fidelity and Guaranty Co., where the Supreme Court held "Indian nations exempt from suit without congressional authorization. " The Supreme Court suggested two grounds for the doctrine. First, Native American tribes enjoy immunity as a result of being recognized as sovereigns.
Within the last decade, the court has reaffirmed this position, holding that these tribes retain all sovereign powers except those "expressly terminated by Congress " and "inconsistent with their status. " These powers "are not, in general, delegated powers granted by express acts of Congress ", but rather "inherent powers of a limited sovereignty which has never been extinguished. " A second basis for tribal immunity stems from the desire to protect tribal resources.
While the Supreme Court did not explicitly pronounce the protection of tribal resources as a ground for its decision, it cited cases in support of its ruling that were primarily concerned with such protection. Unlike the immunities enjoyed by states, the federal government and foreign countries, no limitations have been placed on the scope of tribal immunity. Courts continue to apply the doctrine uncritically in a wide variety of cases, sometimes acknowledging that, had the defendant "been a state or municipal government, the federal government or a foreign nation, it would have been amenable to suit in either state or federal courts. "
For instance, courts consistently hold that a Native American tribe's immunity can be waived only by its express consent or the consent of Congress. In contrast to other governments, implied waivers are generally not recognized even in cases where commercial activity by a tribe on or off its reservation has taken place. Similarly, the purchase of insurance by a tribe does not serve to waive immunity. Tribal immunity is, therefore, broader in this respect than is the immunity possessed by states, the federal government, and foreign countries.
The proprietary acts of Native American tribes have not been distinguished from the governmental functions of tribes, although this distinction has been made in cases concerning other sovereigns. In fact, some courts have specifically upheld that "the fact that a tribe was engaged in an enterprise private or commercial in character, rather than governmental, is not material. " Thus courts continue to find a broader immunity for Native American tribes than is still recognized for any other sovereign.
Law is not static in the United States' judicial system. New evidence in this argument based on legal precedent could surface in the courts at any time. Which of the following legal decisions would most weaken the author's claim about the immunity granted to Native American tribes?[A] A decision to permit a Native American tribe to sue a foreign corporation
[B] A decision to prevent a Native American tribe from suing the federal government
[C] A decision to permit a business corporation to sue a Native American tribe
[D] A decision to prevent the federal government from suing a Native American tribe
Based on information in the passage, which of the following statements is NOT true?[A] It is more difficult to sue a Native American tribe than a business corporation.
[B] It is more difficult to sue the federal government than a Native American tribe.
[C] It is less difficult to sue a foreign government than a Native American tribe.
[D] It is less difficult to sue a state government than a Native American tribe.
Based on information in the passage, each of the following statements is a plausible explanation of why the judicial system has not changed the rules governing tribal immunity EXCEPT:[A] Native American tribes are sovereign entities that cannot be sued without their consent.
[B] the resources possessed by Native American tribes should remain under tribal control.
[C] Native American tribes have generally been unable to purchase insurance.
[D] the sovereign powers of Native American tribes differ from those of other governments.
Assume that one of the following actions is taken by the judicial system. The author of this passage would probably give his greatest support to which of these actions?[A] Efforts to circumscribe Native American immunity to lawsuits
[B] Efforts to limit the Supreme Court's legal authority over Native Americans
[C] Efforts to stop non—Native Americans from taking Native American resources
[D] Efforts to reduce congressional authority over Native American tribes
In the context of the passage, the phrase proprietary acts (line 54) refers to:[A] actions of a non—governmental nature.
[B] actions initiated by the Supreme Court.
[C] actions initiated by Congress.
[D] actions of Native American individuals.
For which of the following claims does the passage provide some supporting evidence or explanation?[A] The Indian Commerce Clause has been rendered obsolete by more recent legislation concerning Native American rights.
[B] Corporations have pressed Congress to re—examine the question of Native American tribal immunity.
[C] Native American tribes are prepared to waive their right of tribal immunity under certain circumstances.
[D] The legitimacy of the current interpretation of tribal immunity has been questioned within the judicial system.
Suppose that the judicial system allowed a state government to sue a Native American tribe for breach of contract involving an agreement to allow the state to develop land belonging to the tribe. How would this information affect the claim about tribal immunity made in the passage?[A] It would support the claim.
[B] It would contradict the claim.
[C] It would neither support nor contradict the claim.
[D] It would support the claim only if the President objected to the lawsuit.