Silent Intent? Analyzing the Congressional Intent Requirement to Abrogate Tribal Sovereign Immunity

Abstract

On February 26, 2019, the United States Court of Appeals for the Sixth Circuit in Buchwald Capital Advisors, LLC v. Sault Ste. Marie Tribe of Chippewa Indians (In re Greektown Holdings, LLC III) held that Congress did not intend to abrogate tribal sovereign immunity through the enactment of the Bankruptcy Code, Title 11 of the U.S. Code. In so holding, the Sixth Circuit split from the Ninth Circuit and emphasized the long-held principle that all ambiguities in statutes be construed in a manner that favors the Indian tribes. This Comment argues that the Sixth Circuit properly applied the standard that the Ninth Circuit failed to respect: namely, that Congress must express an unequivocal intent to abrogate an Indian tribe’s sovereign immunity.