The Securities and Exchange Commission

[thepennyking]

I. WHAT IS SOVEREIGN IMMUNITY?

The topic of sovereign immunity is too varied and too large to be fully covered here. This broad topic has become even more volatile because of the efforts of Senator Slade Gorton (R-WA) to alter or abrogate tribes' sovereign immunity in various legislative proposals, as well as the efforts of other members of Congress to counteract those proposals. Accordingly, this paper endeavors to set out major principles on the sovereign immunity of the United States and of Indian tribes and to apply those principles to current federal legislation concerning Indian tribes.

A. Historical Roots.

Sovereign immunity is an expression of the lawmaking power of government and reflects judgments concerning how public resources should be distributed. As Alexander Hamilton famously observed: "t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union."(1)

The inability of courts to enforce a judgment was a basis for the doctrine of sovereign immunity noted in Chisholm v. Georgia.(2) That case held a state liable to suit by a citizen of another state or foreign country and created such a shock that the Eleventh Amendment was at once proposed and adopted. Sovereign immunity is also justified on the "logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends."(3) A further basis for the doctrine is avoidance of interference with governmental functions and with the government's control of its instrumentalities, funds and property.(4)

B. The Public Treasury or Domain.

The doctrine of sovereign immunity is critically important where it truly applies--to suits against the sovereign. But how does one determine if a suit is against the sovereign? The simple answer is that a suit is against the sovereign if "the judgment sought would expend itself on the public treasury or domain."(5)

In many cases the rule can be difficult to apply because the sovereign acts through human individuals, and these agents are often the named defendants. Sovereign immunity does not prevent suits challenging the acts of individuals who violate federal or other applicable law. For this reason, a careful distinction must be drawn between suits against officers of a government and suits against the government itself. Although sovereign immunity provides limited protection of the public treasury or domain, it does not generally protect the officers of the sovereign.

http://www.msaj.com/papers/doc0831.htm