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Re: Amerind an offensive term (was: Early Amerind assimilation
Stephen W. Russell (srussell@lonestar.jpl.utsa.edu)
Thu, 8 Aug 1996 21:56:57 -0500
On Wed, 7 Aug 1996 smryan@netcom.com wrote:
> : (wrongly, in my opinion) that Congress cannot grant an Indian nation the
> : right to sue a state without the state's permission. I will spare you
> : the reductio ad absurdum of that holding.
>
> Not a completely novel idea: you cannot sue the federal government without
> its permission, that is, the Congress decide who has standing, what courts
> to use, how appeals work, etc, for all federal cases.
OK, if you insist, I won't spare you. There is no question that the
states enjoy sovereign immunity. There is no question that Indian tribes
enjoy sovereign immunity. The Constitution provides exclusive
jurisdiction of disputes between states in the Supreme Court. That is,
although each has sovereign immunity they can sue each other. If the
Seminole case is correct, there is no nonviolent dispute resolution
process between states and Indian tribes unless they consent to use the
federal courts or Congress settles it by statute. That is what seems
absurd.
The Founders did not anticipate Indian tribes needing to litigate or that
they would be subsumed into the US. Therefore, no jurisdiction is
provided in the Third Branch. However, the Indian Commerce Clause gives
Congress the exclusive power to regulate commerce with the Indian tribes.
Therefore, it would seem to me that Congress has the power to provide
for the resolution of disputes that arise during that commerce.
All that's needed is a hop and a skip around Marbury v. Madison, and any
institution that can endorse unilateral "abrogation" of treaties and
still call itself a court can certainly make pigs fly.
Steve Russell> >
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