In Alltel Communications, L.L.C., v. DeJordy, the Eighth Circuit Court of Appeals quashed third-party subpoenas issued to tribal officials of the Oglala Nation of the Pine Ridge Indian Reservation. The Eighth Circuit found tribal immunity from suit provided a basis to quash. In doing so, the Eighth Circuit confronted the concept of sovereign immunity in its application to third-party subpoenas duces tecum. Sovereign immunity, a concept adopted from English law, is an area of the law which American courts have been troubled in applying systematically to U.S. law. The concept of sovereign immunity, however, has been found to apply to Indian tribes in modified form, restricting the amenability of the tribes to suits in state or US. courts. In 1949, the United States Supreme Court attempted to frame a coherent theory of sovereign immunity in Larson v. Domestic & Foreign Commerce Corp., even as Congress was acting increasingly to permit suits against the government and government officers. As a result, the maximalist interpretation of the holding in Larson was widely criticized by legal scholars but limited in its effect due to such legislation as the Administrative Procedure Act ("APA") which emptied the maximalist interpretation of Larson of much of its force. Conflict between the maximalist interpretation of the theory enunciated in Larson on the one hand and 500 years of legal and equitable practice and the increasingly restrictive legislative attitude toward sovereign immunity on the other has produced incongruities between federal circuits in theoretical approaches to the concept of sovereign immunity. In Alltel v. DeJordy, the Eighth Circuit aligned itself with the less coherent body of precedent by applying the maximalist interpretation of Larson to a tribal entity outside the scope of the APA. In so holding, the Eighth Circuit discounted the vital federal interest in discovery to the effective functioning of the federal judiciary, undermined the interests tribal immunity exists to protect, and established future burdens on parties seeking relevant evidence from federal government entities.
Sovereign immunity in American law has its basis in the legal history of medieval England and the theory of the monarch's courts as agencies of the monarch deriving their authority from the person of the monarch. (1) Absent a personal sovereign in the U.S. constitutional system, though, American courts have struggled to develop a coherent theory of its application since the time of the American Revolution. (2) Derivative of the courts' attempt to frame a coherent theory of sovereignty has been the development of parallel federal case law on the applicability of sovereign immunity to foreign, state, and tribal governments in the federal courts. (3)
This note will review the facts and holdings of Alltel Communications, L.L.C. v. DeJordy (4) and examine the Eighth Circuit Court of Appeals's application of the doctrine of tribal sovereign immunity to a motion to quash third-party subpoenas duces tecum issued to tribal officials of the Oglala Nation of the Pine Ridge Reservation ("Tribe"). (5) It will examine the historical evolution of sovereign immunity in the opinions of the United States Supreme Court and Circuit Courts of Appeal to show that sovereign immunity does not exist as a single coherent doctrine that can be applied to all cases in which it is cited. (6) This note will then examine the historical treatment by the Supreme Court and the Circuit Courts of Appeals of subpoenas issued against agents of sovereign bodies, (7) the division that has developed between circuits as to the applicability of the concept of sovereign immunity to the issuance of such subpoenas, particularly subpoenas duces tecum, (8) and demonstrate that a subpoena cannot be considered a "suit against the sovereign" in coherence with the statutory text, history, precedent, or policies surrounding the institution of the subpoena. (9) Further, this note will examine the evolution of the doctrine of tribal immunity in the holdings of these courts where it can be shown to differ from sovereign immunity in general. (10) As such, this note will argue that the Eighth Circuit in Alltel II has aligned itself with an unsustainable theory of the subpoena in analyzing tribal immunity because it rejected related Eighth Circuit precedent, placed the federal doctrine of tribal immunity in conflict with the Federal Rules of Civil Procedure, raised difficulties of implementation that will likely undermine tribal sovereignty's objectives, and will likely increase costs and limit the reach of the judiciary in cases in which private parties, including the tribes themselves, seek discovery from the federal government. (11)
FACTS AND PROCEDURE
Attorney Eugene DeJordy ("DeJordy") worked for Alltel Communications, LLC, ("Alltel") and its predecessors-in-interest from approximately 1995 until November 2007. (12) In 2000, DeJordy, as the Vice President of Alltel's predecessor Western Wireless, negotiated the Tate Woglaka Service Agreement ("TWSA") with the Tribe. (13) On November 2, 2007, DeJordy left Alltel, and Alltel, as part of DeJordy's Separation Agreement, provided a severance package of $2,039,983. (14) As part of his severance, DeJordy "agreed to not recruit Alltel employees for one year or support or assist legal actions against Alltel or its Successors." (15)
In February 2010, Alltel sued DeJordy for breach of the Separation Agreement. (16) Alltel brought suit in Arkansas District Court in accordance with the Separation Agreement's requirement that any claim arising from the contract be brought in a state or federal court having jurisdiction over Pulaski County, Arkansas. (17) Alltel alleged that DeJordy had recruited an Alltel employee, Tom Reiman, with whom he had formed a new company, and that DeJordy had assisted the Tribe in suits against Alltel. (18) As part of the discovery in the case, Alltel issued subpoenas to the Tribe, the Gonzalez Law Firm, and Joseph Red Cloud. (19) The subpoenas to these three parties sought documents and testimony concerning the TWSA, its assets, the legal disputes concerning ownership of the assets of TWSA, and any assistance DeJordy had provided the Tribe in those disputes with Alltel or Verizon. (20)
The Tribe moved to quash the subpoenas, (21) citing, among other objections, tribal immunity to subpoena. (22) The Tribe cited the opinion of the District Court for the Southern District of New York in Catskill Development, L.L.C. v. Park Place Entertainment Corp., (23) in which the court held that a subpoena duces tecum against a tribe amounted to a suit barred by tribal sovereign immunity. (24) The Tribe also used the opinion of the Ninth Circuit Court of Appeals in United States v. James (25) for supporting precedent, in which the Ninth Circuit held that Congress's grant of jurisdiction over criminal investigations to federal law enforcement did not constitute sufficient jurisdiction for the enforcement of a subpoena against a tribe. (26)
Despite these arguments, the district court denied the Tribe's motion to quash and ordered the subpoenaed non-parties to deliver requested documents for in camera review. (27) In its conclusion, the district court relied heavily on cases finding tribes susceptible to grand jury subpoenas and trial subpoenas in criminal cases, (28) particularly the Eighth Circuit's 1975 decision in In re Long Visitor. (29) The Tribe and Red Cloud filed an interlocutory appeal to the Eighth Circuit Court of Appeals. (30)
On appeal, the Eighth Circuit reversed, holding that "sovereign immunity 'is an amalgam of two quite different concepts, one applicable to suits in the sovereign's own courts and the other to suits in the courts of another sovereign'"; (31) and that "a federal court's third-party subpoena in private civil litigation is a 'suit' that is subject to Indian tribal immunity." (32) The Eighth Circuit reasoned that the federal interest in the "general benefits of discovery" (33) are outweighed by the concern that the discovery might lead to depositions revealing information that would harm the Tribe's economic interests. (34)
English Roots of the Sovereign Immunity Doctrine
As a phenomenon of American law, sovereign immunity traces its origin to English law as it emerged in the Middle Ages, even before the days of English colonial settlement of America. (35) Royal immunity of the English monarch in English courts was the result of the supremacy of the king and his courts over all other courts of the land, and the identity of the king as the supreme judge for whom all his judges sat as delegates and in whose name all writs ran. (36) Where the king endorsed the acts of his retainers as his own, no court could proceed against those retainers. (37) Over time, this immunity of the king and his duly authorized retainers gave rise to the shorthand, conclusory expression, much criticized for its frequent misapplication, (38) that "the king can do no wrong." (39) The shorthand expression, though, was fodder for absolutists from the time of the early Stuarts. (40) The absolutist conception of the immunity of the sovereign to the law was resoundingly rejected by the Revolution of 1688, though, and the constitutional theory of monarchy defined and bound by law was enshrined in the English constitution. (41)
Blackstone, who used the expression "the king can do no wrong" advisedly, rejected the absolutist interpretation and hastened to explain that the phrase, correctly understood, meant that, while the king was not answerable as a man for the wrongs of his ministers, the royal prerogative could not extend to shelter his ministers from judicial review and remedy of their unlawful acts. (42) English law permitted recovery for wrongs committed by the king or royal officers in one of three ways: by petition to the king, by suit against the officer...