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90 N.D. L. Rev. 13
A Possible Solution to the Problem of Diminishing Tribal Sovereignty
– Hope Babcock 

Abstract:

The capacity of Indian tribal sovereignty to protect tribes from outside encroachment and interference has steadily diminished from when the concept was first enunciated in the nineteenth century in the Marshall Indian Law Trilogy. This article assumes as a working premise that only bringing tribes into the Constitution as co-equal sovereigns will end the attrition. The article examines how this might happen, either through creative interpretation of existing constitutional text or by amending the Constitution. Each of these proposals is examined to see if it empowers tribes to manage their futures more effectively, is capacious enough to include the vast majority of tribes, maintains the union’s security and stability, and has political salience. The article concludes that only the creation of a virtual nationwide election district for all members of a tribe to elect tribal representatives to Congress will meet these criteria. The author concedes that the approach is novel, but hopes it is sufficiently viable to warrant further consideration by others.

90 N.D. L. Rev. 121
In Defense of Tribal Sovereign Immunity: A Pragmatic Look at the Doctrine as a Tool for Strengthening Tribal Courts
– Ryan Seelau

Abstract:

Although the doctrine of tribal sovereign immunity was recently upheld by the Supreme Court in Michigan v. Bay Mills Indian Community,1 its existence continues to be attacked as “antiquated” and leading to “unfair” results. While most defenses of tribal sovereign immunity focus on how the doctrine is a necessary part of sovereignty or how the doctrine is necessary for financial reasons, the more pragmatic benefits of tribal sovereign immunity have remained largely overlooked. Any desire to take tribal self-determination seriously and to allow Native nations to produce their own robust and capable governing systems means re-examining the role tribal sovereign immunity plays in such efforts. This article conducts such a re-examination. First, it takes note of the extensive research indicating that strong tribal courts are generally necessary for healthy and resilient Native nations. Second, it looks at the six components that comprise strong tribal courts: (1) accountability; (2) capacity; (3) funding; (4) independence; (5) jurisdiction; and (6) legitimacy. Finally, it argues that the strategic use of tribal sovereign immunity has positive effects on all six components of strong tribal court systems. In essence, tribal sovereign immunity is a valuable tool that Native nations can use to strengthen their own courts, institutions, and nations themselves.

90 N.D. L. Rev. 191
Native Americans – Sovereign Immunity: Determining Whether the Indian Gaming Regulatory Act Abrogates Tribal Sovereign Immunity for Lawsuits Arising Outside of Indian Country
Michigan v. Bay Mills Indian Cmty, 134 S.Ct. 2024
– Mitchell G. Enright 

Abstract:

In Michigan v. Bay Mills Indian Community, the United States Supreme Court held that the Indian Gaming Regulatory Act (“IGRA”) did not implicitly or explicitly abrogate the common law doctrine of tribal sovereign immunity so as to allow a state to file a federal suit against an Indian tribe for illegal gambling activity taking place outside of Indian country. The Court reasoned that neither the text nor the legislative history of IGRA indicated a desire on the part of Congress to abrogate tribal immunity to allow for such suits; the fact that IGRA specifically addresses activities occurring inside of Indian country was dispositive to the Court that Congress chose to leave traditional state-law remedies in place when illegal gaming activity occurs outside of Indian country. The Court was also unwilling to overrule its previous decision of Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., which expanded the doctrine of tribal sovereign immunity to cover suits arising from contracting disputes with non-Indian businesses off-reservation. The Court’s holding in Bay Mills clarifies the doctrine of tribal sovereign immunity within the controversial context of Indian gaming. However, this will not result in any expansion of Indian gaming beyond Indian country. On the contrary, the Court’s decision makes clear that states will continue to have a number of remedies available to them to prevent Indian gaming off-reservation, just not the sort of federal suit at issue in this case.