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Full-Text Articles in Law
Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser
Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser
American Indian Law Journal
No abstract provided.
Sovereign Immunity Tests Bankruptcy’S Least Contested Axioms, Deborah L. Thorne, Luke L. Sperduto
Sovereign Immunity Tests Bankruptcy’S Least Contested Axioms, Deborah L. Thorne, Luke L. Sperduto
Emory Bankruptcy Developments Journal
Section 106 of the Bankruptcy Code expressly abrogates the sovereign immunity of governmental units with respect to fifty-nine other provisions of the Code. There are currently two distinct issues splitting circuit courts over the meaning of this provision. First, does section 106 waive the sovereign immunity of the Internal Revenue Service in avoidance actions brought against it by a bankruptcy trustee under section 544(b)? Second, are Native American Indian Tribes “governmental units” within the meaning of section 101(27), such that their sovereign immunity is abrogated to the extent set forth in section 106? Invoking conventional canons of statutory construction, this …
“Magic Words” And Original Understanding: An Amplified Clear Statement Rule To Abrogate Tribal Sovereign Immunity, Justin W. Aimonetti
“Magic Words” And Original Understanding: An Amplified Clear Statement Rule To Abrogate Tribal Sovereign Immunity, Justin W. Aimonetti
Pepperdine Law Review
The Indian plenary power doctrine—an invention of the late nineteenth-century Supreme Court—grants Congress exclusive authority to legislate with respect to Indian tribes, including the ability to abrogate tribal sovereign immunity. Under current doctrine, Congress must “unequivocally express” its intent to abrogate the sovereign immunity of Indian tribes with “explicit legislation.” Circuit courts tasked with applying this standard have split on the level of textual specificity required to strip tribes of their immunity. Employing the tools of statutory construction, courts are divided over whether the term ‘domestic government,’ as found in Section 106 of the Bankruptcy Code, unequivocally covers Indian tribes. …
Patently Inconsistent: State And Tribal Sovereign Immunity In Inter Partes Review, John Mixon
Patently Inconsistent: State And Tribal Sovereign Immunity In Inter Partes Review, John Mixon
St. John's Law Review
(Excerpt)
This Note is composed of four parts. Part I reviews the origins, development, and purpose of both tribal and state sovereign immunity, compares the two doctrines, and concludes that the two are functionally the same despite deriving from different historical roots. Part II provides an overview of the history and purpose behind the patent system, the America Invents Act, and IPRs. Part II also analyzes the constitutionality of IPRs, as decided by the Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. Part III introduces and addresses the five IPR decisions on state sovereign …
Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta
Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta
Public Land & Resources Law Review
In Navajo Nation v. Department of the Interior, the Navajo Nation challenged the Department of the Interior’s 2001 and 2008 water allocation guidelines and asserted that under NEPA and the APA the guidelines violated the Navajo Nation’s water rights. The Navajo Nation also asserted a breach of trust claim against the United States. After nearly a decade of attempted settlement negotiations, the Navajo Nation reasserted its complaints. The District Court for the District of Arizona denied the Navajo Nation’s motions, and the Navajo Nation appealed to the Ninth Circuit Court of Appeals, which determined the Navajo Nation lacked standing, …
Lewis V. Clarke, Summer L. Carmack
Lewis V. Clarke, Summer L. Carmack
Public Land & Resources Law Review
One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state …
Falling Off Balance: How The Tenth Circuit’S Stance On The Implementation Of A Balancing Test Undermines Congressional Intent In Regard To Extending Sovereign Immunity To Economic Entities Of A Tribe, Robert Thomas Redwine
Falling Off Balance: How The Tenth Circuit’S Stance On The Implementation Of A Balancing Test Undermines Congressional Intent In Regard To Extending Sovereign Immunity To Economic Entities Of A Tribe, Robert Thomas Redwine
American Indian Law Review
No abstract provided.
The Conflict Between State Tests Of Tribal Entity Immunity And The Congressional Policy Of Indian Self-Determination, Aaron F.W. Meek
The Conflict Between State Tests Of Tribal Entity Immunity And The Congressional Policy Of Indian Self-Determination, Aaron F.W. Meek
American Indian Law Review
No abstract provided.
Bittle V. Bahe: A Drunken Mistake, Brian Alan Burget
Bittle V. Bahe: A Drunken Mistake, Brian Alan Burget
American Indian Law Review
No abstract provided.
A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendants, S. Alan Ray
A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendants, S. Alan Ray
Michigan Journal of Race and Law
This Article examines the Cherokee Freedmen controversy to assess whether law and biology can function as sufficient models for crafting Cherokee identity at this crucial moment in the tribe's history. The author will argue that while law and biology are historically powerful frames for establishing tribal self-identity, they are inadequate to the task of determining who should enjoy national citizenship. The wise use of sovereignty, the author suggests, lies in creating a process of sustained dialogical engagement among all stakeholders in the definition of Cherokee citizenship on the question of Cherokee identity. This dialogue should ideally have been undertaken before …
A Tale Of Conflicting Sovereignties: The Case Against Tribal Sovereign Immunity And Federal Preemption Doctrines Preventing States' Enforcement Of Campaign Contribution Regulations On Indian Tribes, Paul Porter
University of Michigan Journal of Law Reform
This Note will discuss whether Indian tribes can assert tribal sovereign immunity to avoid compliance with state campaign finance regulation and whether such regulations should be preempted by federal law. Tribal sovereign immunity is not an enshrined constitutional imperative; it exists only under federal common law and can be limited by the courts from blocking state suits to enforce campaign finance regulations against tribes. This Note will also argue that state campaign finance regulations should not be preempted by federal law because states have a compelling interest in protecting their political processes from corruption that outweighs tribal interests in flouting …
The Plight Of "Nappy-Headed" Indians: The Role Of Tribal Sovereignty In The Systematic Discrimination Against Black Freedmen By The Federal Government And Native American Tribes, Terrion L. Williamson
The Plight Of "Nappy-Headed" Indians: The Role Of Tribal Sovereignty In The Systematic Discrimination Against Black Freedmen By The Federal Government And Native American Tribes, Terrion L. Williamson
Michigan Journal of Race and Law
This Note concerns the role the government has played in the exclusion of Black Freedmen from Native American nations through its implementation and interpretation of the doctrine of tribal sovereign immunity ("tribal sovereignty" or "tribal immunity"). Part I discusses the background of the Freedmen within the Five Civilized Tribes and provides an overview of the doctrine of tribal sovereign immunity, including its role in the controversy concerning the status of Black Indians. Part II discusses the interpretations given to the doctrine of tribal sovereign immunity by United States courts and executive agencies and the effects of those interpretations on relations …
Winner, Best Appellate Brief In The 2002 Native American Law Student Association Moot Court Competition, Michelle A. Carr, Cara Hair
Winner, Best Appellate Brief In The 2002 Native American Law Student Association Moot Court Competition, Michelle A. Carr, Cara Hair
American Indian Law Review
No abstract provided.
The Historical Development Of American Indian Tribes; Their Recent Dramatic Commercial Advancement; And A Discussion Of The Eligibility Of Indian Tribes Under The Bankruptcy Code And Related Matters, R. Spencer Clift Iii
The Historical Development Of American Indian Tribes; Their Recent Dramatic Commercial Advancement; And A Discussion Of The Eligibility Of Indian Tribes Under The Bankruptcy Code And Related Matters, R. Spencer Clift Iii
American Indian Law Review
No abstract provided.
Just Say The "Magic Words": Advocating An Arbitration Clause Should Be Held To An Express Waiver Standard For The Doctrine Of Indian Sovereign Immunity--C&L Enterprises V. Citizen Band Potawatomi Indian Tribe, Jeremy Clinefelter
American Indian Law Review
No abstract provided.
Sovereign Immunity: Should The Sovereign Control The Purse?, Thomas P. Schlosser
Sovereign Immunity: Should The Sovereign Control The Purse?, Thomas P. Schlosser
American Indian Law Review
No abstract provided.
Tribal Court Praxis: One Year In The Life Of Twenty Indian Tribal Courts, Nell Jessup Newton
Tribal Court Praxis: One Year In The Life Of Twenty Indian Tribal Courts, Nell Jessup Newton
American Indian Law Review
No abstract provided.
Cases: South Dakota V. Yankton Sioux Tribe; Kiowa Tribe V. Manufacturing Technologies, Inc.; Alaska V. Native Village Of Venetie Tribal Government; United States V. Santee Sioux Tribe; United States V. Bering Strait School District; State V. Wakole
American Indian Law Review
No abstract provided.
Winner, Best Appellate Brief In The 1998 Native American Law Student Association Moot Court Competition, Elaine Smith, Angelina Okuda-Jacobs
Winner, Best Appellate Brief In The 1998 Native American Law Student Association Moot Court Competition, Elaine Smith, Angelina Okuda-Jacobs
American Indian Law Review
No abstract provided.
Sovereign Immunity In Indian Tribal Law, Ralph W. Johnson, James M. Madden
Sovereign Immunity In Indian Tribal Law, Ralph W. Johnson, James M. Madden
American Indian Law Review
No abstract provided.
Sovereignty: Indian Sovereighty And Tribal Immunity From Suit, Douglas R. Wright
Sovereignty: Indian Sovereighty And Tribal Immunity From Suit, Douglas R. Wright
American Indian Law Review
No abstract provided.
Water Rights: The Mccarren Amendment And Indian Tribes' Reserved Water Rights, Elizabeth Mccallister
Water Rights: The Mccarren Amendment And Indian Tribes' Reserved Water Rights, Elizabeth Mccallister
American Indian Law Review
No abstract provided.