Passage
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. Courts continue to apply the doctrine uncritically in a wide variety of cases, sometimes acknowledging that, had the defendant "been a state or municipal government, the federal government or a foreign nation, it would have been amenable to suit in either state or federal courts. "
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.
Question for 100 RCs for Practice Questions- 96
Try yourself:Law is not static in the United States' judicial system. New evidence in this argument based on legal precedent could surface in the courts at any time. Which of the following legal decisions would most weaken the author's claim about the immunity granted to Native American tribes?
Explanation
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.
Wrong answers:
(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.
(D): Opposite. This would strengthen the author's idea that tribes have far—reaching immunity.
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Question for 100 RCs for Practice Questions- 96
Try yourself: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:
Explanation
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 paragraph 4 that tribes have been able to buy insurance.
Wrong answers:
(A): Opposite. The author mentions this throughout the first few paragraphs.
(B): Opposite. This is the topic of paragraphs 4 and 5.
(D): Opposite. The author argues this throughout the second half of the passage.
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Question for 100 RCs for Practice Questions- 96
Try yourself:In the context of the passage, the phrase proprietary acts (line 54) refers to:
Explanation
Go back to the text of the passage. Keeping your map in mind will help you to remember that this paragraph deals with tribes' commercial activities, a summary backed up by a quick re-reading of the phrase in context. (A) matches up.
Wrong answers:
(B): Out of Scope. Nothing in the text to indicate this,
(C): Out of Scope. ...or this.
(D): Distortion. Though the activities aren't governmental in nature, that doesn't mean that they're individual. The author clearly states that the tribe as a whole is engaged in the commercial activities.
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Question for 100 RCs for Practice Questions- 96
Try yourself:Suppose that the judicial system allowed a state government to sue a Native American tribe for breach of contract involving an agreement to allow the state to develop land belonging to the tribe. How would this information affect the claim about tribal immunity made in the passage?
Explanation
Here you have a situation in which the courts are allowing a tribe to be sued. Since the author argues that this generally doesn't happen without Congress's express permission, the author's claim would be weakened. Choice (B) alone fits.
Wrong answers:
(A): Opposite. We're looking for something that weakens.
(C): Opposite. As above.
(D): Out of Scope. There's nothing about the President anywhere in the passage, nor would the claim be supported in any case.
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Question for 100 RCs for Practice Questions- 96
Try yourself:Based on information in the passage, which of the following statements is NOT true?
Explanation
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.
Wrong answers:
(A): Opposite. The author argues this in paragraph 7.
(C): Opposite. This is mentioned in paragraph 5.
(D): Opposite. Also in paragraph 5. 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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Question for 100 RCs for Practice Questions- 96
Try yourself:Assume that one of the following actions is taken by the judicial system. The author of this passage would probably give his greatest support to which of these actions?
Explanation
Always be aware of the author's purpose in writing the passage. In this case, the author's purpose seems to be to argue for a more limited sort of tribal immunity. Remembering this before hitting the answers makes it easy to spot (A).
Wrong answers:
(B): Out of Scope. The author isn't concerned with this.
(C): Out of Scope. This, too, has no impact on the author's opinion of immunity.
(D): Out of Scope. Another topic the author expresses no opinion on.
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Question for 100 RCs for Practice Questions- 96
Try yourself:For which of the following claims does the passage provide some supporting evidence or explanation?
Explanation
Keep the author's purpose in mind, as main points of the argument are the ones most likely to be backed up with some sort of evidence. Search for a claim made in the passage that also has supporting evidence. It will help to remember that most of the evidence in the passage has taken the form of quotes from various court cases or legal opinions. Keeping this in mind makes the search for (D) a quick one.
Wrong answers:
(A): Distortion. Though the author mentions in 1 that the doctrine of tribal immunity has been fashioned independently from the Clause, that doesn't necessarily mean that the legislation is obsolete.
(B): Out of Scope. There's no indication in the passage that this has happened.
(C): Distortion. The author mentions that tribes have this right, but doesn't ever mention an instance in which they're willing to exercise it.
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