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31 S.D. L. Rev. 553 (1985-1986)
Tribal Immunity, Tribal Courts, and the Federal System: Emerging Contours and Frontiers

handle is hein.journals/sdlr31 and id is 563 raw text is: TRIBAL IMMUNITY, TRIBAL COURTS, AND THE FEDERAL SYSTEM: EMERGING CONTOURS AND FRONTIERS FRANK POMMERSHEIM* TERRY PECHOTA** I. INTRODUCTION The doctrine of sovereign immunity is a fundamental concept in Ameri- can law especially as it pertains to federal and state governmental systems. The roots of the doctrine are found in both federal and state constitutional and decisional law as well as English common law precedent.' The elements of the doctrine, nevertheless, have been greatly modified, largely by statute,2 to meet evolving standards of governmental policy, economic justice, and individual fair play in a changing society.3 This seminal concept exerts an equivalent force in Indian law. While its history is somewhat less developed, its centrality is not. Tribal immunity is the linchpin for much discussion and current litigation in such diverse areas as economic and commercial development, civil rights, and access to federal courts. This centrality extends more generally to the larger question of the role of tribal courts in the federal system. The goal of this article is to eluci- date the judicial contours of these questions, the policy issues they raise, and the jurisprudential frontiers they suggest. The doctrine of sovereign immunity derives from the English notion of divine right that the king or queen, as the ultimate source of worldly authority invested with Christian blessing, could do no wrong and should not be dis- turbed in the exercise of his or her manifold powers. This principle is embed- ded in the aphorism that the king can do no wrong and has attached to the United States as the successor to the rights of the British Crown.4 These antecedents do not, however, provide an adequate explanation for the continuing vitality of the doctrine, since the notion of a royal prerogative or exemption seems very inconsistent with the democratic principle of popular * Associate Professor of Law, University of South Dakota School of Law; B.A., 1965, Colgate University; J.D., 1968, Columbia Law School; M.P.A., 1984, Harvard University. ** Attorney at Law, Finch and Viken, Rapid City, South Dakota; B.A., 1969, Black Hills State College; J.D., 1972, University of Iowa School of Law. 1. See, e.g., T. GIUTrARI, THE AMERICAN LAW OF SOVEREIGN IMMUNITY 7-8 (1970); James, Tort Liability of Governmental Units and Their Officers, 22 U. CHI. L. REV. 610, 611-21 (1955); Field, The Eleventh Amendment And Other Sovereign Immunity Doctrines: Part One, 126 U. PA. L. REV. 515-21 (1978). 2. See, e.g., Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) (1982); Tucker Act, 28 U.S.C. §§ 1346(a)(2) (1982); S.D.C.L. §§ 21-32-15 to 18 (Supp. 1985); IOWA CODE ANN. § 613.8 (Supp. West 1985); NEB. REV. STAT. § 24-319 (1979). 3. See. e.g., James, Tort Liability of Governmental Units and Their Officers, 22 U. CHI. L. REV. 610, 612-21 (1955). 4. See, e.g., Comm'rs of the State Ins. Fund v. United States, 72 F. Supp. 549, 552 (S.D.N.Y. 1947); 14 WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 2d § 3654, at 200 (1985).

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