Intent Matters: Assessing Sovereign Immunity for Tribal Entities
Wong, Gregory J., Washington Law Review
Abstract: Indian tribes create corporations and agencies, such as casinos and economic development organizations, to further tribal goals. When such an entity is sued, the courts must determine whether the entity shares in the tribe's inherent sovereign immunity. Like tribes, the federal and state governments also create corporations and agencies to further their governmental goals. To determine whether such a federal entity shares in the federal government's sovereign immunity, the courts ask if Congress intended to grant the entity immunity from suit. For state entities, courts ask if the state government intended to extend its sovereign immunity to the entity by examining how state law characterizes the entity. The courts have designed a variety of tests to determine when a tribal entity shares in a tribe's sovereign immunity but none of these explicitly examine the intent of the tribe. This Comment argues that courts err if they do not examine a tribe's intent to extend its sovereign immunity to a tribal entity when analyzing the entity's amenability to suit. The courts defer to federal and state intent due to their status as sovereigns. Tribes are similarly sovereign governments. Federal, state, and tribal sovereign immunity all derive from the same source. Although Congress has the power to change or abrogate tribal sovereign immunity, thus far Congress has not chosen to alter the extent to which tribal entities may benefit from a tribal government's immunity from suit.
Immunity from suit is an inherent aspect of sovereignty rooted in common law.1 Courts have abandoned the historical notion that governments possess immunity from suit because the "king can do no wrong" and today justify sovereign immunity as a means to both protect the treasury and prevent the state apparatus from being turned against itself.2 Sovereign immunity extends beyond the sovereign in the strictest sense to include government corporations and agencies that operate as an arm of the sovereign.3 However, not every entity created by a sovereign is entitled to the protections of sovereign immunity.4
Because sovereign immunity defines whether or not a court has jurisdiction over a suit,5 it is the duty of the courts to determine whether sovereign immunity has been extended to an entity created by a sovereign.6 When considering the extension of federal or state sovereign immunity, courts look to whether the government creating the entity intended the entity to share in the sovereign's immunity from suit.7 In other words, courts give deference to whether the sovereign intended to extend its immunity to an entity.8 To determine the sovereign's intent, courts look to how the entity is characterized by the sovereign's law.9 If there is no explicit language in the law that either preserves or waives sovereign immunity for the governmental entity, courts will analyze various factors to determine legislative intent.10
The U.S. Supreme Court has not established a test to determine when tribal agencies and corporations share in the tribe's sovereign immunity." Nevertheless, state and lower federal courts have developed a variety of tests for this analysis.12 Yet, unlike the tests employed in the context of federal and state sovereign immunity, none of the tests in the tribal context consider the tribe's intent in creating the entity.13 Courts ignore the tribe's intent, an important factor in the federal and state contexts, and primarily assess the entity's relationship to the tribal government.14
This Comment argues that tribal intent should be a factor in determining whether sovereign immunity extends to tribal entities. Part I of this Comment discusses the nature of federal, state, and tribal sovereign immunity, concluding that they all spring from the same source. Part II examines the courts' inability to abrogate tribal sovereign immunity. Part III outlines how courts defer to the intent of federal and state governments when determining whether a governmental entity shares in the sovereign's immunity from suit. …