Turtle Talk

Here is the order denying the motion to quash in Alltel v. DeJordy (D.S.D.): DCT Order on Motion to Quash.

Occasionally, court opinions prove the power of the professor’s pen (and this is definitely intended not to be a criticism of the professor or the court, both of whom for which we have the greatest respect):

Joshua Kanassatega, an Assistant Professor of Law and Director of the Indian Law Program at Gonzaga University School of Law, concludes James and Catskill Development, are “misguided” because:

1. They fail to utilize the existing balancing tests used to excuse high ranking government officials from giving deposition testimony;

2. They fail to properly apply Fed. R. Civ. P. 45(c)(3)(A) and to consider the policies underlying  the rule;

3. They wrongly analogized the sovereignty and immunity of the United States to Indian tribal sovereignty and tribal immunity; and

4. As a federal policy matter, the federal court’s application of the “discovery immunity exception” undermines Indian tribal sovereignty.

Joshua Jay Kanassattega, The Discovery Immunity Exception in Indian Country — Promoting American Indian Sovereignty By Fostering the Rule of Law, 31 Whittier L. Rev. 199 (2009) (summarized).

Professor Kanassattega’s analysis looks to the United States Supreme Court for some general guidance on this issue.

In the 1986 case Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, the Court articulated a concept of limitations on the federal common law immunity that the Indian Tribes possessed. While recognizing that common law immunity was a “necessary corollary to Indian sovereignty and self-governance,” the Court, in passing, noted that because Indian Tribes possessed only quasi-sovereignty, such immunity is not congruent with the immunity possessed by the United States or the several states. More ominously, the Court added, “this aspect of tribal sovereignty, like all others, is subject to  plenary federal control and definition.”

Kanassattega, supra at 240-41 (citing Three Affiliated Tribes, 476 U.S. 877, 890-91, 106 S. Ct. 2305, 90 L. Ed. 2d 881 (1986) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S. Ct. 1670, 56 L. Ed. 2d 106 (1978) and United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 513, 60 S. Ct. 653, 84 L. Ed. 894 (1940)).

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The court agrees with the analysis and logic of Professor Kanassattega. Granting the Tribe’s motion to quash these subpoenas on the basis of tribal immunity would create an exception to Rule 26(b)(1) that only would be available to a tribe, tribal agency, official or employee. Kanassattega, supra at 268. “It would be strange indeed if a federal subpoena were operative against the [federal government] and its officers but not [a tribe]. Juvenile Male 1, 431 F. Supp 2d at 1017.