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Article
The Discovery Immunity Exception in Indian Country – Promoting American Indian Sovereignty by Fostering the Rule of Law
Whittier Law Review (2009)
  • Jay Kanassatega, Arizona Summit Law School
Abstract

The purpose of this article is to encourage federal courts (and Indian tribes) to re-think reliance on tribal sovereign immunity as a basis to quash or modify process directed to Indian tribes and their elected and appointed officials and employees as non-parties to any underlying litigation. In such third-party actions, federal courts should not apply tribal immunity to quash or modify otherwise valid federal process served on an Indian tribe pursuant to the Federal Rules of Civil Procedure, Rule 45. Instead, the federal court should approach the issue with an eye toward implementing Congressional policies aimed at supporting the development of strong governments for American Indian people. The best expression of Indian tribal sovereignty and self-determination is active, robust legislative activity, not resorting to claims of immunity. Indian tribes and their counsel are encouraged to take primary control of the tribes’ sovereign interests and embrace public policy and the rule of law by abandoning reliance on tribal immunity in the form of a "discovery immunity exception." Such action would place Indian tribes on the same footing with the United States and the states with respect to enforcement of third-party discovery requests targeted to such governments.

Accordingly, a federal court’s focus when faced with this issue should be on the public policies and substantive laws enacted by the involved Indian tribe with respect to regulating the public’s access to the Indian government’s officials, employees and records. To the extent that the Indian tribe has not enacted on point substantive law, the federal court should apply the balancing approach articulated in United States v. Bryan, as this test provides an opportunity for the tribe to demonstrate that its substantial interest in sovereignty and self government far outweighs the public’s search for the truth. To the extent the tribe cannot prevail under the Bryan test, the court should apply the standard outlined in FRCP 45(c)(3)(A) to determine whether to quash or modify the federal process. However, with respect to federal process served on a tribal official, the court should determine whether that person is a “high-ranking government official” in accordance with the law of the involved Indian tribe and, if so, the court should apply the standard used with respect to high-ranking federal, state, and municipal government officials. As for federal process served on a tribal board member or corporate executive or tribal attorney, the court should apply a principle of proportionality reflected in FRCP 26(b)(2) by quashing or delaying the deposition of a high-ranking corporate official whose role in the transaction is limited.

Keywords
  • Federal Rule of Civil Procedure Rule 45,
  • United States v. Bryan,
  • rule of law,
  • policy,
  • sovereign immunity,
  • tribal immunity,
  • discovery immunity exception,
  • tribal law
Publication Date
Winter 2009
Citation Information
Joshua Jay Kanassatega, The Discovery Immunity Exception in Indian Country – Promoting American Indian Sovereignty by Fostering the Rule of Law, 31 Whittier L. Rev. 199 (2009).