Emory Bankruptcy Developments Journal


This Comment concerns section 106(a) of the Bankruptcy Code, which abrogates sovereign immunity of “a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.” A circuit split exists as to whether this section applies to Native Nations. The Sixth Circuit interpreted this section to maintain sovereign immunity for Native Nations in the Code, while the Ninth Circuit interpreted it to abrogate tribal sovereign immunity. This Comment argues that the Sixth Circuit’s interpretation of section 106(a) is the correct interpretation because of the unique relationship between Native Nations and the federal government. This Comment first reviews the history between the federal government and Native Nations to explore this unique relationship and to establish a reparative legislative history. It then compares tribal immunity to other forms of sovereign immunity in order to establish Native sovereign immunity as unique and to demonstrate congressional intent to exclude Native Nations from section 106(a). Finally, it argues that tribal sovereign immunity should be maintained in the context of the Code because the renewed sovereign status of Native Nations and the privileges associated with that sovereign status are reparations efforts and therefore deserve significant weight in any calculus that considers the weakening of sovereign privileges.