TRIBAL SOVEREIGN IMMUNITY IS A MYTH

It is only a creation of the Federal Government without Constitutional Authority.

For years our media, both national and local, has reported on event after  event where individuals damaged by or through an incident involving a  federally recognized tribe, could not sue the tribe for damages because the  tribe claimed sovereign immunity from suit. Tribal sovereignty really is the  issue when you think about it and it was the federal government that created  and continues to sponsor sovereignty for the federally  recognized tribes  through the 1934 Indian Reorganization Act, and the Congresses subsequent questionable behavior. The U.S. Supreme Court has ruled that the Indian  Civil Rights Act could not be interpreted to authorize a lawsuit against a  tribe or its officers in the federal courts ( Santa Clara Pueblo v.   Martinez, 1978). It was this case that provided Justice Byron White an   opportunity to write in his dissent of this case.. " Given Congress' concern about the deprivations of Indian rights by tribal  authorities, I cannot believe , as does the majority, that it desired the  enforcement of these rights to be left up to the very tribal authorities  alleged to have violated them. In the case of the Santa Clara Pueblo, for  example, both legislative and judicial powers are vested in the same body,  the Pueblo Council." One other part of that dissent deserves space here.  "the extension of the constitutional rights to individual citizens is   intended to intrude upon the authority of government."  We are reminded that those constitutional rights given individual citizens, were given by the Constitution.. NOT by the federal or any state  government. The Constitution, being a higher authority then those two levels  of government , gives rights that can not be altered , changed or taken away  by the lower authorities. Yet you can see , from the above, we have two  federal branches that actively control tribes the way they want to and in  disregard of the Constitution. Our Executive Branch is equally involved in   the above problem area. I hope this discussion about sovereignty was not   considered a digression from the immediate subject, sovereign immunity.  They   both are controlled by the federal government and demonstrate that   governments disinterest in following the Constitution.  The Doctrine of Sovereign Immunity does not exist in law or in fact.  Rather,  it first appeared in 1793, when Chief Justice Jay, in a statement not  related to the case and issue before him, refused to hear that case because  " There is no power which the courts can call to their aid". He refused the  case against the U.S. because of the general rule that a sovereign cannot be  sued in his own courts. This case was followed in 1821, by a case where  Chief Justice Marshall also refused to hear a case saying "the universally  received opinion is that no suit can be commenced or prosecuted against the  U.S." . Then Marshall continued saying the U.S. is " not suable of common  right, the party who institutes such suit must bring his case within the  authority of some act of Congress, or the court cannot exercise jurisdiction  over it .". So we have two Chief Justices that on their own denied citizens the right to sue the U.S. Government using a doctrine stemming from the   feudal system our forefathers left in England and totally rejected as   observed simply by reading the Declaration of Independence. Then read the   Articles of Confederation and our current Constitution; you will not find  any authority delegated to the Congress Assembled or the U.S. Government  that even remotely could be considered authority to give tribes sovereignty  and or sovereign immunity and indeed, there is no authority to have such  doctrines in our jurisprudence.  Our form of sovereignty is unique in the world.. it is vested in the   citizens of each of the States of our union. Sovereign immunity is so incongruous and inconsistent with the concept of a government " by the  people and for the people" that it is no wonder this doctrine that does not  allow the king to be sued has never had any existence and never should have  any place in our system of jurisprudence. Since the two cases refused by Jay and Marshall, and this was by dictum, the doctrine of sovereign immunity has  been thrust upon our citizenry by sheer political and bureau power with no  base or validity at all except through the improper use of stare decisis  the doctrine of precedent). In simple terms.. sovereign immunity was never  granted to the United States by the people and therefore was reserved by the  citizens to themselves. Amendment IX and Amendment X assure us of this power  being retained in the citizens.

> John A. Fleming