AuthorJeffrey Lehman, Shirelle Phelps

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Exemption from performing duties that the law generally requires other citizens to perform, or from a penalty or burden that the law generally places upon other citizens.

Sovereign Immunity

SOVEREIGN IMMUNITY prevents a sovereign state or person from being subjected to suit without its consent.

The doctrine of sovereign immunity stands for the principle that a nation is immune from suit in the courts of another country. It was first recognized by U.S. courts in the case of The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116, 3 L. Ed. 287 (1812). At first, courts espoused a theory that provided absolute immunity from the jurisdiction of a U.S. court for any act by a foreign state. But beginning in the early 1900s, courts relied on the political branches of government to define the breadth and limits of sovereign immunity.

In 1952, the U.S. STATE DEPARTMENT reacted to an increasing number of commercial transactions between the United States and foreign nations by recognizing foreign immunity only in noncommercial or public acts, and not in commercial or private acts. However, it was easily influenced by foreign diplomats who requested absolute sovereign immunity, and the application of sovereign immunity became inconsistent, uncertain, and often unfair.

Complaints about inconsistencies led to the passage of the Foreign Sovereign Immunities Act of 1976 (28 U.S.C.A. §§ 1 note, 1330, 1332, 1391, 1441, 1602?1611). By that act, Congress codified the theory of sovereign immunity, listing exceptions for certain types of acts such as commercial acts, and granted the exclusive power to decide sovereign immunity issues to the courts, rather than to the State Department.

Indian tribes have been granted sovereign immunity status by the United States, and therefore they generally cannot be sued without the consent of either Congress or the tribe. This immunity is justified by two considerations: First, historically, with more limited resources and tax bases than other governments, Indian tribes generally are more vulnerable in lawsuits than are other governments. Second, granting sovereign nation status to tribes is in keeping with the federal policy of self-determination for Indians.

Indian tribes are immune from suit whether they are acting in a governmental or a proprietary capacity, and immunity is not limited to acts conducted within a reservation. However,

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individual members of a tribe do not receive immunity for their acts; only the tribe itself is immune as a sovereign nation.

Governmental Tort Immunity

Sovereign immunity may also apply to federal, state, and local governments within the United States, protecting these governments from being sued without their consent. The idea behind domestic sovereign immunity?also called governmental TORT immunity?is to prevent money judgments against the government, as such judgments would have to be paid with taxpayers' dollars. As an example, a private citizen who is injured by another private citizen who runs a red light generally may sue the other driver for NEGLIGENCE. But under a strict sovereign immunity doctrine, a private citizen who is injured by a city employee driving a city bus has no CAUSE OF ACTION against the city unless the city, by ordinance, specifically allows such a suit.

Governmental tort immunity is codified at the federal level by the FEDERAL TORT CLAIMS ACT (28 U.S.C.A. § 1291 [1946]), and most states and local governments have similar statutes. Courts and legislatures in many states have greatly restricted, and in some cases have abolished, the doctrine of governmental tort immunity.

Official Immunity

The doctrine of sovereign immunity has its roots in the law of feudal England and is based on the tenet that the ruler can do no wrong. Public policy grounds for granting immunity from civil lawsuits to judges and officials in the EXECUTIVE BRANCH of government survive even today. Sometimes known as official immunity, the doctrine was first supported by the U.S. Supreme Court in the 1871 case of Bradley v. Fisher, 80 U.S. 335, 20 L. Ed. 646. In Bradley, an attorney attempted to sue a judge because the judge had disbarred him. The Court held that the judge was absolutely immune from the civil suit because the suit had arisen from his judicial acts. The Court recognized the need to protect judicial independence and noted that malicious or improper actions by a judge could be remedied by IMPEACHMENT rather than by litigation.

Twenty-five years later, in Spalding v. Vilas, 161 U.S. 483, 16 S. Ct...

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