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2004: FPPC v. Santa Rosa Indian Community

"The flaw in my colleagues’ decision is that it elevates the reserved powers of a state referred to (but not granted by) the Tenth Amendment above the powers delegated to the federal government by the Constitution. But the converse is true: Where the federal government, including the Supreme Court, exercises powers delegated to it by the Constitution, then the state has no reserved sovereign power to act in a contrary manner. For this reason, I cannot agree with my colleagues’ conclusion that “[t]he constitutional right of the State to sue 6 to preserve its republican form of government trumps the common law doctrine of tribal immunity.”1 Consequently, I would affirm the order granting the Tribe’s motion to quash."

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