“Magic Words” and Original Understanding: An Amplified Clear Statement Rule to Abrogate Tribal Sovereign Immunity

“Magic Words” and Original Understanding: An Amplified Clear Statement Rule to Abrogate Tribal Sovereign Immunity

Article By: Justin W. Aimonetti

2020 PEPP. L. REV. 1 (2020)

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.  Because the purported power Congress exercises to abrogate tribal sovereign immunity is constitutionally dubious as an original matter, this Article contends that courts should only find abrogation when Congress leaves no doubt that it is acting in reliance upon that power.  Specifically, the persuasive originalist critique of the Indian plenary power doctrine’s historical incorrectness licenses the adoption of a “magic words” clear statement rule.  Under the proposed rule, Congress must expressly mention ‘Indian tribes’ or a closely associated term somewhere in the statute’s text to effectuate the abrogation of a tribe’s sovereign immunity.

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