IMMUNITY
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 transac-
tions 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 eas-
ily 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, list-
ing 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 there-
fore 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 propri-
etary capacity, and immunity is not limited to
