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Tribal immunity is the doctrine of sovereign immunity applied on

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Tribal immunity is the doctrine of sovereign immunity applied on  [#permalink]

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Tribal immunity is the doctrine of sovereign immunity applied on behalf of Native American tribes. Under the Indian Commerce Clause, Congress has “plenary” authority over the tribes. Courts have held that these tribes cannot be sued without the consent of Congress. The doctrine of tribal immunity, however, is a judicially created doctrine that the federal courts have independently fashioned.

At least one Supreme Court Justice has noted the necessity of a more principled analysis of the doctrine of tribal immunity, expressing "doubts about the continuing vitality in this day of the doctrine of tribal immunity as it was enunciated in the case of the United States v. United States Fidelity and Guaranty Co." and "the view that that doctrine may well merit re-examination in an appropriate case."

The doctrine first emerged in the case of the United States v. United States Fidelity and Guaranty Co., where the Supreme Court held "Indian nations exempt from suit without congressional authorization." The Supreme Court suggested two grounds for the doctrine. First, Native American tribes enjoy immunity as a result of being recognized as sovereigns.

Within the last decade, the court has reaffirmed this position, holding that these tribes retain all sovereign powers except those "expressly terminated by Congress" and "inconsistent with their status." These powers ―are not, in general, delegated powers granted by express acts of Congress‖, but rather "inherent powers of a limited sovereignty which has never been extinguished."

A second basis for tribal immunity stems from the desire to protect tribal resources. While the Supreme Court did not explicitly pronounce the protection of tribal resources as a ground for its decision, it cited cases in support of its ruling that were primarily concerned with such protection. Unlike the immunities enjoyed by states, the federal government and foreign countries, no limitations have been placed on the scope of tribal immunity.

For instance, courts consistently hold that a Native American tribe‘s immunity can be waived only by its express consent or the consent of Congress. In contrast to other governments, implied waivers are generally not recognized even in cases where commercial activity by a tribe on or off its reservation has taken place. Similarly, the purchase of insurance by a tribe does not serve to waive immunity. Tribal immunity is, therefore, broader in this respect than is the immunity possessed by states, the federal government, and foreign countries.

The proprietary acts of Native American tribes have not been distinguished from the governmental functions of tribes, although this distinction has been made in cases concerning other sovereigns. In fact, some courts have specifically upheld that "the fact that a tribe was engaged in an enterprise private or commercial in character, rather than governmental, is not material." Thus courts continue to find a broader immunity for Native American tribes than is still recognized for any other sovereign.





1. Which of the following legal decisions would most weaken the author‘s claim about the immunity granted to Native American tribes?

A. A decision to permit a Native American tribe to sue a foreign corporation
B. A decision to prevent a Native American tribe from suing the federal government
C. A decision to permit a business corporation to sue a Native American tribe
D. A decision to prevent the federal government from suing a Native American tribe
E. A decision to permit a Native American tribe to sue another Native American tribe


2. Based on information in the passage, which of the following statements is NOT true?

A. It is more difficult to sue a Native American tribe than a business corporation.
B. It is more difficult to sue the federal government than a Native American tribe.
C. It is less difficult to sue a foreign government than a Native American tribe.
D. It is less difficult to sue a state government than a Native American tribe
E. Tribal immunity has virtually no limits


3. Based on information in the passage, each of the following statements is a plausible explanation of why the judicial system has not changed the rules governing tribal immunity EXCEPT:

A. Native American tribes are sovereign entities that cannot be sued without their consent.
B. the resources possessed by Native American tribes should remain under tribal control.
C. Native American tribes have generally been unable to purchase insurance.
D. the sovereign powers of Native American tribes differ from those of other governments.
E. it is essential to protect the tribes‘ natural resources


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Re: Tribal immunity is the doctrine of sovereign immunity applied on  [#permalink]

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New post 10 Sep 2018, 11:28
8 mins all correct. Here are the OEs.

1) The author‘s argument is that tribes have immunity that‘s overly broad. Tribes can only be sued with authority from Congress, not the Court (as happens in the question stem). So if the question stem is true, then this immunity rule wouldn't hold up. (C) fits.

(A): Out of Scope. Immunity, as discussed in the passage, only has to do with the defendant of a suit, not the plaintiff.

(B): Out of Scope. As above.

(C): The correct answer

(D): Opposite. This would strengthen the author‘s idea that tribes have farreaching immunity

(E): One tribe suing another does not weaken anything

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Re: Tribal immunity is the doctrine of sovereign immunity applied on  [#permalink]

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New post 10 Sep 2018, 11:29
2) Recap the author‘s main argument: tribal immunity is problematically broad. Keep an eye out for an answer choice that contradicts something the author says or is completely irrelevant. While all three incorrect answers have support in the passage, the author suggests the opposite of what (B) is saying.

(A): Opposite. The author argues this in ¶7.

(B): The correct answer

(C): Opposite. This is mentioned in ¶5.

(D): Opposite. Also in ¶5.

(E): This can be easily inferred from the information provided in the passage

Strategy point:

Paraphrase difficult phrases or double negatives into something easier to understand. “Less difficult” reads far more smoothly as “easier.”


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Re: Tribal immunity is the doctrine of sovereign immunity applied on  [#permalink]

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New post 10 Sep 2018, 11:30

3) As in the last question, look to eliminate three answer choices supported by evidence and keep an eye out for one that clashes with the passage. (C) directly contradicts the author‘s point in ¶4 that tribes have been able to buy insurance.

(A): Opposite. The author mentions this throughout the first few paragraphs.

(B): Opposite. This is the topic of ¶s4 and 5.

(C): The correct answer

(D): Opposite. The author argues this throughout the second half of the passage.

(E): Opposite. This is the topic of ¶s4 and 5

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Re: Tribal immunity is the doctrine of sovereign immunity applied on &nbs [#permalink] 10 Sep 2018, 11:30
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