An Introduction to Sovereign Immunity
for Federal, State and Tribal Governments
Sovereign immunity from suit is an inherent right of all governments, including the federal, state and tribal governments, for reasons of sound public policy. The purpose served by this policy is to provide special protection against loss of assets held in common for many people, now and in the future, for the performance of vital government functions.
Since 1946, the federal government and most states have provided limited waivers of sovereign immunity that allow these governments to be sued when the government functions in the same manner as a private individual, such as when a government employee gets in a car accident. However, the federal government and states have retained sovereign immunity in broad areas in order to protect governmental functions from lawsuits and limit the size of damages claims.
Like the federal government and states, most tribes provide for limited waivers of their sovereign immunity. Senator Slade Gorton's proposal to force tribes into an unlimited waiver of their sovereign immunity would put Indian tribal governments at risk. Tribal councils and tribal courts would be subject to immense lawsuits, whether they acted or failed to act. No government could long operate under this proposed waiver of sovereign immunity.
Sovereign Immunity of the Federal Government
In 1946, Congress passed the Federal Torts Claims Act (FTCA),(1) which exposes the United States government to limited liability for certain tort claims in the same manner as a private individual, but not liability for interest prior to judgment or for punitive damages. In addition, any claim for money damages must first be presented to the appropriate federal agency. In 1988 amendments to the FTCA, Congress clarified and strengthened federal government's right to any defense based upon judicial or legislative immunity. Congress waived sovereign immunity for certain contract actions in 1887 under the Tucker Act.(2)
Under these statutes, the federal government has retained its rights to sovereign immunity in broad areas, including those functions that are inherently "governmental." For instance, a postal consumer may not collect damages from the U.S. Postal Service for failure to deliver mail,(3) and a federal agency may not be sued for a procedural error in promulgating regulations.(4) In addition, the judicial and legislative functions are specifically protected from lawsuits. The prohibition on punitive damages also provides a significant limitation on the size of awards.
Sovereign Immunity of State and Local Governments
The sovereign immunity of state governments from suit is specifically guaranteed under the Eleventh Amendment to the Constitution.(5) This Eleventh Amendment sovereign immunity was reaffirmed in two recent Supreme Court cases to the detriment of Indian tribes trying to establish their federally guaranteed rights.(6)
Many, but not all, state governments have passed statutes similar to the FTCA that provide limited waivers of immunity, but retain state immunity for governmental functions and provide limitations on damages. Along with the prohibition on punitive damages, a growing trend is for state governments to impose a ceiling on the amount of recoverable damages. Although the dollar amounts vary from state to state, many states have adopted a cap of $100,000 for injuries arising from a single accident or occurrence.(7) Some states set lower caps for property damage claims.(8)
Local and municipal governments also retain sovereign immunity subject to state law. In general, most states have passed laws which retain the governmental function immunity of local and municipal governments.(9)
Tribal Government Sovereign Immunity
Like the federal and state governments, many tribes have voluntarily provided for limited waivers of their immunity(10) and have insurance to cover their potential liability.(11) This is a growing trend evidenced by an increasing number of claims handled by tribal courts.(12)
Tribes and tribal officials are also subject to suit under various exceptions to tribal sovereign immunity recognized by the courts. For example, courts have applied the Ex Parte Young doctrine to tribal officials.(13) This doctrine works an exception to the general rule of sovereign immunity when an official acts outside of the government's authority. Tribal sovereign immunity has also been limited by various courts where allegations of personal restraint and deprivation of personal rights were raised.(14)
In addition, pursuant to federal law, Indian tribes, contractors and employees are deemed to be agents of the federal government for the purposes of the FTCA when a tribal government program operates with federal dollars.(15)
Tribal governments dealing in commercial contexts routinely agree to include limited immunity waivers in contracts, including bonding and insurance requirements. Negotiation of these limited waivers is a widely-practiced prerequisite to contracting with tribal governments. In addition, many tribes have specifically waived sovereign immunity for tribal businesses incorporated pursuant to the Indian Reorganization Act.(16)
Conclusion
Sovereign immunity is no anachronism, but is alive and well as a legal doctrine that protects the functions of government from litigation and damages claims. The discussion above illustrates that tribes are certainly not protected by an impermeable shield of sovereign immunity, but like the federal government and states, assert limited immunity. Federal policy in recent decades has been to help tribal self-governance abilities. Authorizing federal courts to have blanket authority to grant relief against Indian tribes would substantially interfere with tribal self-governance and place tribal assets and funds at risk. Under Senator Gorton's proposal, tribal court authority would be diminished and a tribal council elected to lead a tribe and govern its people would face the risk that, whether it acted or failed to act, the tribe's land and other assets, and thus the tribe itself, would be exposed to loss through the federal courts.
3. Pruitt v. United States Postal Service, 817 F. Supp. 807 (ED Mo 1993).
4. C.P. Chemical Co. v. United States, 810 F.2d. 34 (CA2 NY 1987).
5. "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."
6. Idaho v. Coeur d'Alene Tribe of Idaho, 1997 WL 338603 (U.S.); Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114 (1996).
7. See, e.g., Ala. Code 11-93-2 (1992); Fla. Stat. Ann. 768.28(5) (Harrison 1992); Okla. Stat. Ann. Tit. 51, 154 (West 1993).
8. See, e.g., Okla. Stat. Ann. Tit. 51, 154(A)(1) (West 1993) ($25,000); Tex. Civ. Prac. & Rem. Code Ann. 102.003 (West 1986) ($10,000).
9. See, Antieau, 1A Local Corporation Law §11A.00 et. seq.
10. See, Weeks Constr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 668, 671 (8th Cir. 1986) (stating that tribal ordinance bars use of sovereign immunity); Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir. 1980) (finding express waiver of immunity in severance tax ordinance).
11. Joseph Calve, Pequots Won't Gamble on Lawsuits at New Casino, Conn. L. Trib., Mar. 2, 1992, at 1.
12. See, The Honorable Sandra Day O'Connor, Lessons from the Third Sovereign: Indian Tribal Courts, The Tribal Court Record, Spring/Summer 1996, at 12.
13. See, Susan M. Williams, Esq., Testimony Before the Committee on Indian Affairs, U.S. Senate, September 24, 1996.
14. Dry Creek Lodge v. Arapahoe and Shoshone Tribes, 515 F.2d 926 (10th Cir. 1975).
15. Indian Self-Determination and Education Assistance Act and related acts. Pub. L. No. 101-152, Title III, 104 Stat. 1959 (codified at 25 U.S.C. § 450).
16. Boe v. Ft. Belknap Indian Community, 455 F. Supp. 462, 463 (D. Mont. 1978); Parker Drilling Co. v. Metlakatla Indian Community, 451 F. Supp. 1127, 1135 (Alaska 1978); Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir. 1980)