The Comparative Rights of Indispensable Sovereigns

Abstract

This Article argues that federal and state courts tend to shortchange Indian Tribes and Tribal sovereignty in their application of the compulsory joinder rule. It is apparent that state and federal courts treat the sovereign immunity of the states and federal government with more deference than the immunity of Tribes. At least one court has trumpeted Supreme Court dicta for the proposition that Tribal immunity is an insignificant factor. However, immunity is immunity. Using procedural rules to qualify or abrogate the immunity from suit of a sovereign is an egregious abuse of discretion. Surely, the rules of procedure are not intended to operate a backdoor mechanism for the waiver of a sovereign's immunity from suit.

Keywords: Federal Indian Law, Civil Procedure, Litigation, Constitutional Law, Indian Gaming