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2020 Pepp. L. Rev. Ann. 1 (2020)

handle is hein.journals/pnelwrwan2020 and id is 1 raw text is: Magic Words and Original Understanding: An Amplified Clear Statement Rule to Abrogate Tribal Sovereign Immunity There is not one example in all of history where the Supreme Court has found that Congress intended to abrogate tribal sovereign immunity without expressly mentioning Indian tribes somewhere in the statute.i Abstract The Indian plenary power doctrine-an invention of the late nineteenth- century Supreme Court grants Congress exclusive authority to legislate with respect to Indian tribes, including the ability to abrogate tribal sovereign immunity. Under current doctrine, Congress must unequivocally express its intent to abrogate the sovereign immunity of Indian tribes with explicit legislation. Circuit courts tasked with applying this standard have split on the level of textual specificity required to strip tribes of their immunity. Employing the tools of statutory construction, courts are divided over whether the term 'domestic government, 'as found in Section 106 of the Bankruptcy Code, unequivocally covers Indian tribes. Because the purported power Congress exercises to abrogate tribal sovereign immunity is constitutionally dubious as an original matter, this Article contends that courts should only find abrogation when Congress leaves no doubt that it is acting in reliance upon that power. Specifically, the persuasive originalist critique ofthe Indian plenary power doctrine's historical incorrectness licenses the adoption of a magic words clear statement rule. Under the proposed rule, Congress must expressly mention 'Indian tribes' or a closely associated term somewhere in the statute's text to effectuate the abrogation of a tribe's sovereign immunity. 1. Meyers v. Oneida Tribe of Indians of Wis., 836 F.3d 818, 824 (7th Cir. 2016) (quoting In re Greektown Holdings, LLC, 532 B.R. 680, 693 (E.D. Mich. 2015)). 1

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