A failure of expression: How the provisions of the US Bankruptcy Code fail to abrogate tribal sovereign immunity

Sections 106(a) and 101(27) of the U.S. Bankruptcy Code use the general phrase "other foreign or domestic government" to abrogate sovereign immunity without specifically referencing Indian tribes. The U.S. Supreme Court has not yet decided whether these sections of the Code abrogate tribal sovereign immunity, and lower court decisions have come to varying conclusions. As a general rule, Indian tribes are immune from suit due to their inherent sovereignty. Congress, however, may abrogate the sovereign immunity of tribes by unequivocally stating its intent to do so in a statute. When interpreting abrogation provisions in a statute, courts have only found an unequivocal expression to be present when the statute explicitly references Indian tribes. The unequivocal expression standard used by courts in determining the abrogation of tribal sovereign immunity is also used in the context of state sovereign immunity and courts consider state sovereign immunity cases to be persuasive authority when addressing tribal sovereign immunity. In the state context, the U.S. Supreme Court has found general phrases in abrogation provisions to be insufficient to satisfy the standard. This Comment argues that the U.S. Supreme Court must find that 106(a) and 101(27) of the Bankruptcy Code do not abrogate tribal sovereign immunity. The Bankruptcy Code contains no specific reference to Indian tribes. Moreover, courts have found general phrases such as the one in the Bankruptcy Code insufficient to abrogate the sovereign immunity of states. While the general phrase "other foreign or domestic government" logically seems to encompass Indian tribes, such an inference is insufficient to meet the unequivocal expression standard.