Fox-Hunting the Conscience of the King into a Shallow Grave: Sovereign Immunity and Discovery as Applied to Indian Tribes in Alltel Communications, L.L.C. V. DeJordy and Its Implications for Discovery Practice

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In Alltel Communications, L.L.C., v. DeJordy, the Eighth Circuit Court of Appeals quashed third-party subpoenas issued to tribal officials of the Oglala Nation of the Pine Ridge Indian Reservation. The Eighth Circuit found tribal immunity from suit provided a basis to quash. In doing so, the Eighth Circuit confronted the concept of sovereign immunity in its application to third-party subpoenas duces tecum. Sovereign immunity, a concept adopted from English law, is an area of the law which American courts have been troubled in applying systematically to U.S. law. The concept of sovereign immunity, however, has been found to apply to Indian tribes in modified form, restricting the amenability of the tribes to suits in state or US. courts. In 1949, the United States Supreme Court attempted to frame a coherent theory of sovereign immunity in Larson v. Domestic & Foreign Commerce Corp., even as Congress was acting increasingly to permit suits against the government and government officers. As a result, the maximalist interpretation of the holding in Larson was widely criticized by legal scholars but limited in its effect due to such legislation as the Administrative Procedure Act ("APA") which emptied the maximalist interpretation of Larson of much of its force. Conflict between the maximalist interpretation of the theory enunciated in Larson on the one hand and 500 years of legal and equitable practice and the increasingly restrictive legislative attitude toward sovereign immunity on the other has produced incongruities between federal circuits in theoretical approaches to the concept of sovereign immunity. In Alltel v. DeJordy, the Eighth Circuit aligned itself with the less coherent body of precedent by applying the maximalist interpretation of Larson to a tribal entity outside the scope of the APA. In so holding, the Eighth Circuit discounted the vital federal interest in discovery to the effective functioning of the federal judiciary, undermined the interests tribal immunity exists to protect, and established future burdens on parties seeking relevant evidence from federal government entities.

I. INTRODUCTION

Sovereign immunity in American law has its basis in the legal history of medieval England and the theory of the monarch's courts as agencies of the monarch deriving their authority from the person of the monarch. (1) Absent a personal sovereign in the U.S. constitutional system, though, American courts have struggled to develop a coherent theory of its application since the time of the American Revolution. (2) Derivative of the courts' attempt to frame a coherent theory of sovereignty has been the development of parallel federal case law on the applicability of sovereign immunity to foreign, state, and tribal governments in the federal courts. (3)

This note will review the facts and holdings of Alltel Communications, L.L.C. v. DeJordy (4) and examine the Eighth Circuit Court of Appeals's application of the doctrine of tribal sovereign immunity to a motion to quash third-party subpoenas duces tecum issued to tribal officials of the Oglala Nation of the Pine Ridge Reservation ("Tribe"). (5) It will examine the historical evolution of sovereign immunity in the opinions of the United States Supreme Court and Circuit Courts of Appeal to show that sovereign immunity does not exist as a single coherent doctrine that can be applied to all cases in which it is cited. (6) This note will then examine the historical treatment by the Supreme Court and the Circuit Courts of Appeals of subpoenas issued against agents of sovereign bodies, (7) the division that has developed between circuits as to the applicability of the concept of sovereign immunity to the issuance of such subpoenas, particularly subpoenas duces tecum, (8) and demonstrate that a subpoena cannot be considered a "suit against the sovereign" in coherence with the statutory text, history, precedent, or policies surrounding the institution of the subpoena. …