indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+
ph: 202 630 8439
Fredericks Peebles & Morgan LLP
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Appeals court rules against tribal immunity
Wednesday, February 11, 2004

Congress abrogated tribal sovereign immunity in bankruptcy-related disputes, a federal appeals court ruled on Tuesday.

Tribes are not mentioned specifically in the federal Bankruptcy Code. But in the first decision of its kind, a unanimous panel of the 10th Circuit Court of Appeals concluded they are open to lawsuits under a section that mentions "foreign and domestic governments."

"Indian tribes are certainly governments, whether considered foreign or domestic," Judge Marsha S. Berzon wrote for the three-judge panel.

The court's ruling is precedent-setting, the judges acknowledged. They found no other case, either in the U.S. Supreme Court or other circuits, that considered tribal immunity under the Bankruptcy Code.

In several decisions, the high court has protected tribes from lawsuits. "As a matter of federal law, a tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity," Justice Anthony Kennedy wrote in 1998's Kiowa Tribe case.

Relying on that principle, a federal judge in Arizona dismissed a bankruptcy-related action involving the Navajo Nation, the largest tribe in the country. U.S. District Judge Mary H. Murguia found that Congress did not abrogate the tribe's immunity.

An energy company that went broke appealed the decision. Krystal Energy claims the tribe unlawfully seized its assets, including oil wells on the reservation. The company also disputes the tribe's $691,000 tax assessment.

Under Supreme Court precedents, a waiver of tribal immunity must be explicit and "unequivocally expressed," according to the Kiowa decision. But in examining the Navajo case, the 10th Circuit found no language in the Bankruptcy Code that mentions tribes.

So instead, the judges looked at cases involving state sovereign immunity. They concluded that Congress, in enacting the code, "did intend to abrogate the sovereign immunity of all 'foreign and domestic governments.'"

Berzon wrote that "the Supreme Court's decisions do not require Congress to utter the magic words 'Indian tribes' when abrogating tribal sovereign immunity. Congress speaks 'unequivocally' when it abrogates the sovereign immunity of 'foreign and domestic governments.'"

The last time the Supreme Court considered tribal immunity was in 2001. In a unanimous decision, the justices held that the Citizen Potawatomi Nation of Oklahoma waived its immunity by signing a contract that included arbitration provisions.

The court avoided touching immunity in a case involving the Bishop-Paiute Tribe of California. County law enforcement are asserting a right to serve criminal warrants on the tribal government.

Get the Decision:
KRYSTAL ENERGY CO. v. NAVAJO NATION (February 10, 2004

Relevant Links:
Navajo Nation - http://www.navajo.org
U.S. Bankruptcy Code - http://www4.law.cornell.edu/uscode/11

Related Stories:
State's raid on tribal land sparks strong reactions (07/16)
Supreme Court avoids tribal immunity question (05/20)
Supreme Court tussles with tribal sovereignty case (04/01)
Supreme Court case too close to call for some (04/01)
Tribes and states stress cooperation not conflict (02/28)
Tribes enter Supreme Court case (2/25)
Showdown looms in tribal sovereignty case (02/20)
State power over tribal government in dispute (12/03)
Supreme Court rules against tribe's immunity (5/1)

Copyright 2000-2003 Indianz.Com
More headlines...
Stay Connected:

Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Native Sun News: Tribe threw away late veteran's memorabilia (10/31)
Mark Trahant: The Native vote could decide the 2014 election (10/31)
Richard Peterson: Sen. Begich supports Alaska Native issues (10/31)
NCAI investigates conduct of treasurer at annual convention (10/31)
Red Lake News: Tribe welcomes Sen. Tester and Sen. Franken (10/31)
Former chairman of Chippewa Cree Tribe faces more charges (10/31)
Texas couple accused of selling fake tribal membership cards (10/31)
Moapa Band loses bid for $438M solar facility on reservation (10/31)
Passamaquoddy Tribe won't talk with tidal power developers (10/31)
Oregon tribe anticipates May 2015 opening for Class II casino (10/31)
Trial opens in case connected to Choctaw Nation casino work (10/31)
Editorial: Off-reservation gaming project unfair to other tribes (10/31)
Opinion: Menominee Nation exploits loophole to pursue casino (10/31)
Native Sun News: Oglala Sioux officer rejoins Rapid City police (10/30)
Mark Trahant: Native voters must be prepared on election day (10/30)
Kevin Gover: Mascot fight exposes myths about Native people (10/30)
Northern Arapaho Tribe: Newspaper got it wrong on joint council (10/30)
Peter d'Errico: Kevin Washburn honored by Indian law students (10/30)
Chris Deschene still urging Navajo Nation voters to choose him (10/30)
Tribes in North Carolina back Democrat Sen. Hagan in tight race (10/30)
NWPR: Tribes take steps to control growing herds of wild horses (10/30)
Opinion: Helping the Tongva people revive their own language (10/30)
Judge grants injunction to keep Chukchansi Tribe casino closed (10/30)
Tribes in South Dakota would benefit from gaming referendum (10/30)
Employee at Puyallup Tribe's casino gets wedding ring returned (10/30)
Editorial: Keep tribal casinos in California on existing Indian land (10/30)
Column: Menominee Nation off-reservation casino goes ignored (10/30)
Quapaw Tribe faces competition for Kansas commercial casino (10/30)
Native Sun News: Montana tribe sees cut in heating assistance (10/29)
Mark Trahant: Alaska Senate race is a real test of Native policy (10/29)
Winona LaDuke: Taking treaty advice from indigenous nations (10/29)
Vena A-Dae Romero: FDA failing to consult tribal governments (10/29)
Zachary Pullin: Native Americans overcame barriers to voting (10/29)
Navajo Nation president vetoes bill to address language issue (10/29)
Prairie Island Indian Community sues over nuclear waste rule (10/29)
County's letter on CSKT water compact talks stirs controversy (10/29)
Vice: Hip-hop artist Drezus on new journey after jail sentence (10/29)
Opinion: Overcoming stereotypes of Native American culture (10/29)
Charges sought in dispute at Chukchansi Tribe's closed casino (10/29)
Pechanga Band chair featured in ads against North Fork casino (10/29)
Grand Ronde Tribes continue fight against Cowlitz Tribe casino (10/29)
Puyallup Tribe offers reward for return of casino worker's ring (10/29)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.