Sovereign Immunity
by Mike Taylor, Esq.
Sovereign immunity is a legal doctrine which, under some circumstances, protects the federal, state, and tribal governments within the United States from lawsuits which would cause those governments to pay out money, real estate, or goods from the governmental treasury. The basic idea behind sovereign immunity is that property held by the government (including assets in the public treasury) is in trust for all the citizens of that particular government. The public treasury and public property are, therefore, to be used for the benefit of all the citizens equally--not jut a few individuals (such as the people who file lawsuits). If, through lawsuit, a plaintiff can collect money from the government for some wrong the government has done him, the public treasury will be reduced for the benefit of that one person. There will then be less money to provide services to all the other citizens of the government. All the citizens will suffer because of the drain on the public treasury caused by a single citizen.
Courts have said that when someone claiming to have been injured by the government or its employees files suit for money damages against the government, and the government has not expressly waived its immunity, the court will not even consider the lawsuit. Instead, the court will dismiss the suit and instruct the injured person to seek payment for his injuries from the legislature or chief executive of the government. The government, say the courts, is immune from any lawsuit seeking money damages against it. Because the legislative body and the chief executive are the elected representatives of all the people, only they should decide where public money (and other property) belonging to all the people should be spent. This is not a decision for the courts.
Many state supreme courts over the last decade have limited or abolished the defense of sovereign immunity, by finding that the doctrine was court made, and declaring it to be unfair. Most state legislatures in the United Sates have given up or waived some portion of their sovereign immunity. Waiver of some immunity is commonly done for public policy reasons.
Legislatures usually waive immunity by passing laws allowing the courts and other judicial bodies to hear and decide certain kinds of cases in which someone injured by the government is suing for money damages. For example, most states have laws allowing citizens injured in automobile accidents involving state-owned vehicles to make claims against the state for money as compensation for injuries. At this stage in the political and financial development of tribal governments, a similar trend in tribal court holdings is not now apparent.
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From: Tax and Financing Incentives-A Tribal Perspective (1993)
Mike Taylor is the tribal attorney for the Colville Confederated Tribes
http://greatspirit.earth.com/taylor.html
