indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
The University of Tulsa College of Law - Master's in Indian Law
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:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Lakota Country Times: New Oglala Sioux leader encourages youth (1/20)
Native Sun News Today: A new leader for Great Plains tribal group (1/20)
Native Sun News Today Editorial: It's a new era for Indian Country (1/20)
Mark Charles: Decoding Trump's bid to 'Make America Great Again' (1/19)
Lakota Country Times: Another year of big news in Lakota territory (1/19)
Native Sun News Today: DefundDAPL billboard goes up in New York (1/19)
Vi Waln: Let's kick our smoking and tobacco habit in Indian Country (1/19)
Terese Mailhot: Native women care what happens to all our sisters (1/19)
Leonard Peltier remains behind bars as Obama rejects clemency (1/19)
Department of the Army takes the lead on Dakota Access Pipeline (1/18)
Dakota Access executive confirms crude already placed in pipeline (1/18)
Bureau of Indian Affairs releases annual listing of recognized tribes (1/18)
Lakota Country Times: Rosebud Sioux Tribe opens homeless shelter (1/18)
Native Sun News Today: Northern Cheyenne focuses on foster care (1/18)
Brandon Ecoffey: Be safe and be prepared as winter hits the plains (1/18)
Disenrollment epidemic affects dozens of tribes across the nation (1/18)
New battle opens as Dakota Access disputes environmental review (1/17)
Judge declines to block publication of Dakota Access Pipeline notice (1/17)
Standing Rock Sioux Tribe responds quickly to Dakota Access threat (1/17)
President Obama names first members of Native youth commission (1/17)
Tim Giago: Discovering a love for food at an Indian boarding school (1/17)
Lakota Country Times: Historic decision for Indian Child Welfare Act (1/17)
Native Sun News Today: Pine Ridge teams fight it out at the buzzer (1/17)
Delphine Red Shirt: Tournament is a testament to our Native youth (1/17)
Native Sun News Today Editorial: News for ranchers in the new year (1/17)
Gyasi Ross: Let's divest from DAPL and support Native owned banks (1/17)
Jeffrey Ostler/Nick Estes: Treaties and the Dakota Access Pipeline (1/17)
Mary Annette Pember: Bad River Band takes stand on oil pipeline (1/17)
Steve Russell: Resolutions for tribal leaders and even the Donald (1/17)
Craig Tribal Association celebrates 'historic' trust land acquisition (1/16)
Mark Trahant: Congress moves forward with repeal of Obamacare (1/16)
Native Sun News Today: Northern Cheyenne banker beats the odds (1/16)
James Giago Davies: The real power to defeat the Wasicu pipeline (1/16)
Tiffany Midge: Hollywood needs to stop stereotyping Native people (1/16)
Peter d'Errico: New book connects Native America with Palestine (1/16)
Alaska tribe makes history with approval of trust land application (1/13)
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.