In its latest pronouncement on the subject, the Supreme Court suggested in Kiowa Tribe of Oklahoma v. Manufacturing Technologies that tribal sovereign immunity is an accidental doctrine that developed with little analysis or reasoning. The Court, however, overlooked important history, context, and (some of its own) precedent which shows that the doctrine arose quite intentionally through relationships negotiated across centuries between the United States and the Indian nations involved in the foundational tribal immunity cases. Indeed, the doctrine's origins and the principles underlying it date back as far as those for the federal, state, and foreign governments' immunities, and, historically, the reasoning and justifications for these doctrines are the same. Although the Kiowa Court upheld tribal immunity, it did so grudgingly and only after disparaging its own precedent, misconstruing the doctrine's origins, questioning whether to perpetuate it, and inviting Congress to abrogate it. In the wake of Kiowa, other courts have seized upon the Supreme Court's marginalization of tribal immunity to limit the doctrine's scope in cases where they do the job Kiowa said was for Congress and weigh the competing policy interests at stake. Perhaps unsurprisingly, these courts use Kiowa's discrediting of tribal sovereign immunity's legitimacy to tip the balance against tribal immunity. This article tells the real story of tribal sovereign immunity, providing doctrinal perspective and historical clarity in order to correct the misunderstandings about tribal immunity's origins, development, and purposes.
This Article tells the story of the tribal sovereign immunity doctrine. Parts of the story have been told elsewhere, but no one has yet told the full account and put tribal sovereign immunity in its proper historical and doctrinal context. Tribal immunity did not develop by accident, as the Supreme Court and others suggest, but was the intentional result of relationships negotiated across centuries between the United States and the tribal nations1 involved in the foundational tribal immunity cases: the Cherokee, Chickasaw, Choctaw, and Muscogee (Creek) Nations. Together with the Seminole Nation, these tribal nations comprised the "Five Civilized Tribes." The Five Tribes2 were so described-by both the general public and the courts in the tribal immunity cases-because they all had established constitutional government structures similar to the federal and state governments and, to varying degrees across and within the tribes, adopted Western-looking economic, educational, political, and social institutions. Although the tribal sovereign immunity story is intertwined with these nations' legal and political histories, courts and scholars have overlooked their role in the tribal immunity doctrine's development and mistakenly assumed that it came about accidentally.
In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc.,5 the Supreme Court held that tribal sovereign immunity barred a lawsuit against the Kiowa Tribe for breach of contract involving a business located outside of Indian country (i.e., off-reservation).4 Though it upheld tribal immunity, the Court said the doctrine arose "almost by accident"5 and had been adopted "with little analysis" and "without extensive reasoning" in its earlier cases.6 But the Kiowa Court ignored some of the foundational tribal sovereign immunity cases, including cases cited in its own precedent, which all involve one of the Five Tribes and make clear that the doctrine did not develop by accident.7 These cases, moreover, used the same reasoning and analysis-to the extent there was any-Found in early and contemporaneous Supreme Court jurisprudence on federal, state, and foreign sovereign immunity, suggesting that Kiowa's critique of tribal immunity for lacking analysis and reasoning was also misplaced.
The early cases for tribes and other governments alike gave two basic reasons for recognizing sovereign immunity: sovereigns have immunity because they are sovereign, and sovereign immunity protects the government treasury. …