In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3127
JEREMY MEYERS, individually, and
on behalf of all others similarly situated,
Plaintiff‐Appellant,
v.
ONEIDA TRIBE OF INDIANS OF WISCONSIN,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:15‐cv‐00445‐WCG — William C. Griesbach, Chief Judge.
____________________
ARGUED FEBRUARY 19, 2016 — DECIDED SEPTEMBER 8, 2016
____________________
Before MANION and ROVNER, Circuit Judges, and BLAKEY,
District Judge.
ROVNER, Circuit Judge. In response to the burgeoning
problem of identity theft, when Congress enacted the Fair
and Accurate Credit Transaction Act (FACTA) in 2003, it in‐
The Honorable John Robert Blakey, of the Northern District of Illinois,
sitting by designation.
2 No. 15‐3127
cluded within the Act a provision to reduce the amount of
potentially misappropriateable information produced in
credit and debit card receipts. The Act prohibits merchants
from printing on the receipt the credit card expiration date
and more than the last five digits of the credit or debit card
number. The plaintiff in this case, Jeremy Meyers, used his
credit card to make purchases at two stores owned by the
defendant, the Oneida Tribe of Indians of Wisconsin, and
received an electronically‐printed receipt at each store that
included more than the last five digits of his credit card as
well as the card’s expiration date. Meyers brought a putative
class action in the eastern District of Wisconsin for violations
of FACTA, but the district court determined that the defend‐
ant, an Indian Tribe, was immune from suit under the Act.
Meyers appeals and we affirm.
I.
The facts in this case are simple and not in dispute. Be‐
tween February 6 and 17, 2015, Meyers used his credit card
to make purchases at the Oneida Travel Center and two
Oneida One Stop retail locations in and around Green Bay,
Wisconsin. All three stores are owned and operated by a
federally‐recognized Indian tribe, the Oneida Tribe of Indi‐
ans of Wisconsin. At each store he received electronically
printed receipts that included more than the last five digits
of his credit card as well as the card’s expiration date. He al‐
leges that the Tribe issued these receipts in violation of
FACTA.
FACTA, an amendment to the Fair Credit Reporting Act,
states that,
No. 15‐3127 3
[n]o person that accepts credit cards or debit
cards for the transaction of business shall print
more than the last 5 digits of the card number
or the expiration date upon any receipt provid‐
ed to the cardholder at the point of the sale or
transaction.
15 U.S.C. § 1681c(g)(1). FACTA defines a person as “any in‐
dividual, partnership, corporation, trust, estate, cooperative,
association, government or governmental subdivision or
agency, or other entity.” 15 U.S.C. § 1681a(b).
Meyers sued the Oneida Tribe for these alleged violations
of FACTA and brought a putative class action on behalf of
all credit and debit card holders who, after June 3, 2008, re‐
ceived from the Oneida Tribe, an electronically printed re‐
ceipt that displayed more than the last five digits of the per‐
son’s credit or debit card or displayed the card’s expiration
date. The district court judge stayed a decision on certifica‐
tion of the class. (R. 7).1
The Oneida Tribe moved to dismiss Meyers’ claim for
lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). The Tribe argued that Meyers’ claims
were barred under the doctrine of tribal sovereign immunity
and that Meyers had not suffered an “injury in fact” grant‐
ing him standing under Article III of the Constitution.
The district court correctly noted, as we discuss below,
that the question of sovereign immunity is not jurisdictional.
Nevertheless, the court properly treated the Tribe’s motion
1 Unless otherwise noted, references are to the record in the district
court.
4 No. 15‐3127
to dismiss for lack of subject matter jurisdiction under Fed‐
eral Rule of Civil Procedure 12(b)(1) as a motion to dismiss
for failure to state a claim for which relief can be granted
under Federal Rule of Civil Procedure 12(b)(6). See Miller v.
Herman, 600 F.3d 726, 732–33 (7th Cir. 2010); citing Peckmann
v. Thompson, 966 F.2d 295, 297 (7th Cir. 1992) (when appro‐
priate, a court may treat a motion filed under Rule 12(b)(1)
as if it were a Rule 12(b)(6) motion). The district court subse‐
quently concluded that the Tribe was immune from suit and
granted the motion to dismiss. This appeal followed.
II.
A.
We begin with the threshold matter of jurisdiction. Just
recently, the Supreme Court issued its decision in Spokeo
which considered whether a plaintiff had adequately alleged
injury in fact so as to acquire standing under Article III of the
Constitution. Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). The
plaintiff in that case alleged injury pursuant to a different
part of the Fair Credit Reporting Act than the one at issue in
this case—one that set forth requirements concerning the ac‐
curate creation and use of consumer reports. The Supreme
Court explained that in order to satisfy the “case or contro‐
versy” requirement of Article III of the Constitution, the in‐
jury must be both particularized and concrete and thus a
plaintiff cannot satisfy these demands by alleging a bare
procedural violation. Id. at 1550. It went on to explain:
Congress’ role in identifying and elevating in‐
tangible harms does not mean that a plaintiff
automatically satisfies the injury‐in‐fact re‐
quirement whenever a statute grants a person
No. 15‐3127 5
a statutory right and purports to authorize that
person to sue to vindicate that right. Article III
standing requires a concrete injury even in the
context of a statutory violation.
Id. at 1549.
In the district court, the defendants raised a claim of sub‐
ject matter jurisdiction, and noted the then‐pending Spokeo
case (R. 14, p.15‐16), but it has abandoned that issue on ap‐
peal and instead focuses only on the issue of sovereign im‐
munity as decided by the district court. Neither party
briefed the issues of subject matter jurisdiction raised in
Spokeo, nor did either party submit supplemental authority
regarding Spokeo. It is certainly true that a court may not de‐
cide the merits of a case without subject matter jurisdiction
even if the parties have not themselves raised it. See Steel Co.
v. Citizens for a Better Envʹt, 523 U.S. 83, 94 (1998), United
States v. Cook County, 167 F.3d 381, 387 (7th Cir. 1999). This
form of “’hypothetical jurisdiction’ that enables a court to
resolve contested questions of law when its jurisdiction is in
doubt” was squarely rejected by the Supreme Court in Steel
Co., 523 U.S. at 101. Shortly thereafter, however, the Supreme
Court made clear that its ruling in Steel Co. did not mean that
a federal court must consider subject matter jurisdiction over
all other threshold matters. Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 584–85 (1999). To the contrary, “a federal court
has leeway to choose among threshold grounds for denying
audience to a case on the merits.” Sinochem Intʹl Co. v. Malay‐
sia Intʹl Shipping Corp., 549 U.S. 422, 431 (2007), citing Ruhr‐
gas, 526 U.S. at 584–85.
The issue of Article III constitutional standing after
Spokeo, which was decided after all of the briefing and ar‐
6 No. 15‐3127
gument had concluded in this case, has not been presented
to this court.2 We could remand this case to the district court
to determine whether Meyers has standing in light of Spokeo
(or request additional briefing in this court). That would an‐
swer the threshold question of whether the plaintiff is
properly before this court for purposes of subject matter ju‐
risdiction. However, another threshold issue is easily an‐
swered—that is whether the plaintiff can obtain relief from
the defendant through this suit. We conclude that the de‐
fendant has sovereign immunity and therefore it cannot. The
Supreme Court has instructed that a court “may find that
concerns of judicial economy and restraint are overriding”
and therefore decide other threshold issues before subject
matter jurisdiction. See Ruhrgas, 526 U.S. at 586. It makes lit‐
tle sense for this court to waste the resources of the district
court (and the time for remand, and the parties in briefing)
asking it to determine one threshold issue when another is
so easily and readily resolved here.
There is one wrinkle to this conclusion: this circuit has
clearly held that the question of sovereign immunity is not a
jurisdictional one. See, e.g., Smoke Shop, LLC v. United States,
761 F.3d 779, 782, n.1 (7th Cir. 2014); Blagojevich v. Gates,
519 F.3d 370, 371 (7th Cir. 2008), Parrott v. United States,
2 In another pending matter by this same plaintiff before this court, Mey‐
ers has alleged an almost identical violation of FACTA against a different
defendant. The parties in that matter did brief the issue of standing after
the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540
(2016). See Meyers v. Nicolet Restaurant, De Pere, LLC, No. 16‐2075, Appel‐
late Record No. 8, 11, 13. And the parties have presented letters of sup‐
plemental authority informing the court of recently decided cases which
cite Spokeo. Id. at 15, 16, & 17.
No. 15‐3127 7
536 F.3d 629, 634–35 (7th Cir. 2008).3 “What sovereign im‐
munity means is that relief against the United States de‐
pends on a statute; the question is not the competence of the
court to render a binding judgment, but the propriety of in‐
terpreting a given statute to allow particular relief.” Parrott,
536 F.3d at 634–35, citing Cook County, 167 F.3d at 389. Sov‐
ereign immunity, therefore, is a waivable defense. Sung Park
v. Indiana Univ. Sch. of Dentistry, 692 F.3d 828, 830 (7th Cir.
2012). In addition to being a defense, however, sovereign
immunity, like qualified immunity, also bears the character‐
istics of “immunity from trial and the attendant burdens of
litigation.” Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 667
(7th Cir. 2012); Herx v. Diocese of Fort Wayne‐S. Bend, Inc.,
772 F.3d 1085, 1089 (7th Cir. 2014) (Sovereign immunity is
part of a class “of cases [that] involve claims of immunity
from the travails of a trial and not just from an adverse
judgment.”); see also Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)
(qualified immunity “is both a defense to liability and a lim‐
ited entitlement not to stand trial or face the other burdens
of litigation.”). This is why “an order rejecting a foreign gov‐
ernment’s claim of sovereign immunity also meets the crite‐
ria for collateral‐order appeal.” Herx, 772 F.3d at 1089. Thus,
no matter whether we give sovereign immunity the label
“jurisdictional” or not, it is nevertheless a “threshold
3 Other courts disagree. See, e.g., Black v. Wigington, 811 F.3d 1259, 1270
(11th Cir. 2016); Patchak v. Jewell, No. 15‐5200, 2016 WL 3854056, at *8
(D.C. Cir. July 15, 2016); Puckett v. Lexington‐Fayette Urban Cty. Govʹt,
No. 15‐6097, 2016 WL 4269802, at *3 (6th Cir. Aug. 15, 2016); E.F.W. v. St.
Stephenʹs Indian High Sch., 264 F.3d 1297, 1302 (10th Cir. 2001)). It is not
entirely clear, however, whether the disagreement in each case is a mat‐
ter of substance or labels. See note 4, infra.
8 No. 15‐3127
ground[] for denying audience to a case on the merits.”
Ruhrgas, 526 U.S. at 585.4
In short, at the same time that we exercise our right to
“choose among threshold grounds for denying audience to a
case on the merits,” Id., we emphasize two issues while do‐
ing so. First, the question of sovereign immunity is not one
on the merits so we do not run afoul of the Supreme Court’s
prohibitions in Steel Company. See Steel Co., 523 U.S. at 93–94.
“[J]urisdiction is vital only if the court proposes to issue a
judgment on the merits.” Sinochem Intʹl, 549 U.S. at 431, cit‐
ing Intec USA, LLC v. Engle, 467 F.3d 1038, 1041 (7th Cir.
2006).
Second, our decision to decide the question of sovereign
immunity rather than remand for a determination of stand‐
ing under Spokeo is not meant to declare that the question of
sovereign immunity is a jurisdictional one. “Customarily, a
federal court first resolves doubts about its jurisdiction over
the subject matter.” Ruhrgas, 526 U.S. at 578. As the Supreme
Court noted, however, there are numerous circumstances in
which a court appropriately accords priority to a non‐merits
threshold inquiry other than subject matter jurisdiction, such
as pendent jurisdiction, forum non conveniens, abstention,
and others. Sinochem, 549 U.S. at 431. As it was pending, we
predicted that this would be the Supreme Court’s likely rul‐
ing in Sinochem, noting that “there are many reasons for not
adjudicating—lack of subject‐matter jurisdiction, lack of per‐
sonal jurisdiction, lack of ripeness, abstention, and forum non
conveniens.” Intec USA, 467 F.3d at 1041 (emphasis in origi‐
4 See Radha A. Pathak, Statutory Standing and the Tyranny of Labels,
62 Okla. L. Rev. 89 (2009).
No. 15‐3127 9
nal). And, in fact, the Supreme Court adopted this court’s
statement that “jurisdiction is vital only if the court proposes
to issue a judgment on the merits.” Sinochem Intʹl, 549 U.S. at
431, citing Intec, 467 F.3d at 1041. In this case, the Supreme
Court issued the Spokeo decision after this case was already
briefed and argued. The question as to whether the injuries
sustained in FACTA cases such as this one are concrete
enough to satisfy the standard in Spokeo is still unresolved.
Compare Guarisma v. Microsoft Corp., –––F.Supp.3d –––, –––,
2016 WL 4017196, at *3 (S.D. Fla. July 26, 2016) (“violation of
the FACTA constitutes a concrete injury in and of itself”) and
Wood v. J Choo USA, Inc., No. 15CV81487BLOOMVALLE,
2016 WL 4249953, at *6 (S.D. Fla. Aug. 11, 2016) (noting that
printing the violating receipt is, in and of itself, a concrete
injury) with Noble v. Nevada Checker CAB Corp., No.
215CV02322RCJVCF, 2016 WL 4432685, at *4 (D. Nev. Aug.
19, 2016) (“Plaintiffs have no standing to complain of the pu‐
tative technical violations of the statute alleged here, because
the putative violations created no ‘concrete’ harm of the type
sought to be prevented by Congress, and Plaintiffs have not
separately alleged any actual harm.”) A later court might
decide it best to address the Article III standing issue first,
but because a federal court has leeway to choose among
threshold grounds for denying an audience on the merits,
and our conclusion that the defendants have sovereign im‐
munity resolves a non‐merits threshold matter without fur‐
ther burden on the courts and parties, we choose that route
today.
B.
In evaluating the Tribe’s claim of sovereign immunity,
we begin with the uncontroversial, two‐century‐old‐concept
10 No. 15‐3127
that Indian tribes have inherent sovereign authority. Michi‐
gan v. Bay Mills Indian Comty., 134 S. Ct. 2024, 2030 (2014).
More could be said of the history and philosophy behind
this sovereignty as the court described it in Bay Mills, but the
upshot is that Indian tribes possess “common‐law immunity
from suit traditionally enjoyed by sovereign powers. … Thus
unless and until Congress acts, the tribes retain their historic
sovereign authority” Id. This is true even for a tribe’s com‐
mercial activities. Id. at 2031.
The Supreme Court has instructed time and again that if
it is Congress’ intent to abrogate tribal immunity, it must
clearly and unequivocally express that purpose. Id. See also,
C & L Enters., Inc. v. Citizen Band Potawatomi Tribe of Okla.,
532 U.S. 411, 418 (2001); United States v. Dion, 476 U.S. 734,
738–39 (1986); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58
(1978). The list of cases could continue at length. Any ambi‐
guity must be interpreted in favor of sovereign immunity.
Dolan v. United States Postal Serv., 546 U.S. 481, 498 (2006);
White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143–44
(1980) (“Ambiguities in federal law have been construed
generously in order to comport with these traditional no‐
tions of sovereignty and with the federal policy of encourag‐
ing tribal independence.”). We review the legal question of
whether Congress has abrogated tribal sovereign immunity
de novo. Wisconsin v. Ho‐Chunk Nation, 512 F.3d 921, 929 (7th
Cir. 2008).
Congress did not specifically list Indian tribes in
FACTA’s definition of “person.” See 15 U.S.C. § 1681 a(b).
Meyers claims that the definition of “person” which includes
“any … government” is broad enough to include Indian
tribes. Perhaps if Congress were writing on a blank slate,
No. 15‐3127 11
this argument would have more teeth, but Congress has
demonstrated that it knows full well how to abrogate tribal
immunity. See, e.g., Safe Water Drinking Act, 42 U.S.C.
§§ 300j‐9(i)(2)(A), 300f(10), 300f(12) (defining person to in‐
clude municipality and municipality to include an Indian
tribe);5 Resource Conservation and Recovery Act of 1976,
42 U.S.C. §§ 6901, 6903(13)(A), 6903(15);6 Fair Debt Collec‐
tion Procedures Act, 28 U.S.C. §§ 3002(7), 3002(10) (defining
“person” to include “a natural person (including an individ‐
ual Indian) … or an Indian tribe.”7
It is true that Congress need not invoke “magic words”
to abrogate immunity. F.A.A. v. Cooper, 132 S. Ct. 1441, 1448
(2012). In fact, in both Blue Legs and Osage Tribal Council, the
courts had to take an indirect route to determine that Con‐
gress meant to abrogate immunity by finding that the term
“person” in the respective statute covered municipalities,
and that the term “municipalities,” in turn, was defined to
cover “Indian tribes,” See Blue Legs, 867 F.2d at 1097; Osage
Tribal Council, 187 F.3d at 1182. As one federal district court
noted while surveying the field, however, “there is not one
5 See Osage Tribal Council ex rel. Osage Tribe of Indians v. U.S. Depʹt of La‐
bor, 187 F.3d 1174, 1180‐81 (10th Cir. 1999) (“the language of the Safe
Drinking Water Act contains a clear and explicit waiver of tribal immun‐
ity.”).
6 See Blue Legs v. U.S. Bureau of Indian Affairs, 867 F.2d 1094, 1097 (8th Cir.
1989) (“It thus seems clear that the text and history of the RCRA clearly
indicates congressional intent to abrogate the Tribe’s sovereign immuni‐
ty with respect to violations of the RCRA.”).
7 See United States v. Weddell, 12 F. Supp. 2d 999, 1000 (D.S.D. 1998), affʹd,
187 F.3d 645 (8th Cir. 1999) (finding “the clear language supports a con‐
clusion that Congress waived the sovereign immunity of Indian tribes.”).
12 No. 15‐3127
example in all of history where the Supreme Court has
found that Congress intended to abrogate tribal sovereign
immunity without expressly mentioning Indian tribes some‐
where in the statute.” In re Greektown Holdings, LLC, 532 B.R.
680, 693 (E.D. Mich. 2015) (emphasis in original).
There is, however, one example of a circuit court abrogat‐
ing tribal immunity without an express mention of Indian
tribes somewhere in the statute, and Meyers attempts to
hitch himself to this wagon. See Krystal Energy Co. v. Navajo
Nation, 357 F.3d 1055 (9th Cir. 2004), cert. denied, 543 U.S. 871
(2004). In Krystal Energy, the Ninth Circuit found that Con‐
gress intended to abrogate Indian immunity under the Bank‐
ruptcy Code despite the fact that no definition in the Bank‐
ruptcy Code actually lists “Indian tribes” as either a foreign
or domestic government. Id. at 1057. The Bankruptcy Code
at issue specifically stated that it abrogated sovereign im‐
munity as to a “governmental unit” which it defined to in‐
clude:
United States; State; Commonwealth; District;
Territory; municipality; foreign state; depart‐
ment, agency, or instrumentality of the United
States (but not a United States trustee while
serving as a trustee in a case under this title), a
State, a Commonwealth, a District, a Territory,
a municipality, or a foreign state; or other for‐
eign or domestic government.
11 U.S.C.A. § 101(27) (emphasis added). Id. at 1057. The
Ninth Circuit concluded that the category of “Indian tribes”
is simply a specific member of the group of domestic gov‐
ernments, the immunity of which Congress intended to ab‐
rogate. Id. at 1058.
No. 15‐3127 13
Other federal courts to have considered this question
disagree. These other courts hold that because Indian tribes
are not specifically named in the Bankruptcy Code, a court
would have to infer that Congress intended the phrase “oth‐
er foreign or domestic government” to encompass tribes and
that such an inference is inappropriate. For example, in In re
Whitaker, 474 B.R. 687, 695 (B.A.P. 8th Cir. 2012), the Bank‐
ruptcy Appellate Panel of the Eighth Circuit rejected the
Ninth Circuit’s conclusion that Congress can express its in‐
tent to abrogate sovereign immunity as to Indian tribes
without specifically saying so. Instead, the Whitaker court
adhered to the general principle that statutes are to be inter‐
preted for the benefit of Indian tribes and that inferences like
the one made by the Ninth Circuit were therefore impermis‐
sible. Id. It concluded, as a result, that in enacting the provi‐
sion of the Bankruptcy Code, Congress did not unequivocal‐
ly express its intent to abrogate the sovereign immunity of
Indian tribes. Id. In the same vein, the district court in In re
Greektown holdings, sitting in review of the United States
Bankruptcy Court for the Eastern District of Michigan, rea‐
soned as follows:
This Court cannot say with “perfect confi‐
dence” that the phrase “other domestic gov‐
ernment” unambiguously, clearly, unequivo‐
cally and unmistakably refers to Indian tribes.
The Bankruptcy Court’s conclusion does not
give appropriate deference to the Supreme
Court’s recent admonition that “[t]he special
brand of sovereignty the tribes retain—both
the nature and its extent—rests in the hands of
Congress.” Bay Mills, 134 S. Ct. at 2037. While
Congress may not have to utter “magic
14 No. 15‐3127
words,” Supreme Court precedent clearly dic‐
tates that it utter words that beyond equivoca‐
tion or the slightest shred of doubt mean “In‐
dian tribes.” Congress did not do so in sections
106(a) and 101(27) of the Bankruptcy Code and
thus the Tribe is entitled to sovereign immuni‐
ty from suit in the underlying MUFTA pro‐
ceeding.
In re Greektown Holdings, 532 B.R. at 700–01. The bankruptcy
court for the Northern District of Iowa came to the same
conclusion, noting that the bankruptcy statute makes no
specific mention of Indian tribes, and thus was insufficient to
express an unequivocal congressional abrogation of tribal
sovereign immunity. In re Natʹl Cattle Cong., 247 B.R. 259, 267
(Bankr. N.D. Iowa 2000).
Of course we are not beholden to the precedent of any of
these courts. 8 Nor is the interpretation of the specific defini‐
tion of “domestic government” in the Bankruptcy Code di‐
rectly on point for purposes of interpreting a different defini‐
tion in FACTA. We need not weigh in on the conflict be‐
tween these courts on how to interpret the breadth the term
“other domestic governments” under the Bankruptcy Code,
because we conclude that Congress simply has not unequiv‐
8 Meyers implores us to give extra weight to the Ninth Circuit’s holding
because it has more experience with issues involving Indian Tribes. This
is a frivolous imploration. Courts of Appeals hear cases on everything
from bankruptcy to maritime law to ERISA to diversity suits about mat‐
ters of state law. It is the job of the Court of Appeals to become expert on
any area of law before it. The Ninth Circuit has no more access to legal
research on Indian tribe immunity than any other court.
No. 15‐3127 15
ocally abrogated the sovereign immunity of Indian Tribes
under the FACTA provision at issue in this case.
Meyers makes much of this court’s decision in Bormes v.
United States, 759 F.3d 793 (7th Cir. 2014), in which we held
that, in enacting the Fair Credit Reporting Act, Congress ab‐
rogated the United States’ sovereign immunity. We reasoned
that the Act declares that any “person” who willfully or neg‐
ligently fails to comply with the Fair Credit Reporting Act is
liable for damages, and then defines “person” as “any indi‐
vidual, partnership, corporation, trust, estate, cooperative,
association, government or governmental subdivision or
agency, or other entity.” Bormes, 759 F.3d at 795, citing
15 U.S.C. §§ 1681n(a), 1681o(a), 1681a(b). Because there is no
debate that the United States is a government, we held, the
answer was plain. Bormes, 759 F.3d at 795. In Bormes, we con‐
cluded that, “[b]y authorizing monetary relief against every
kind of government, the United States has waived its sover‐
eign immunity.” Id. (emphasis in original). Meyers would
like us to interpret this statement to mean that “every gov‐
ernment” must also include Indian tribes. As the district
court noted, however, if there was any implication about
other sovereigns, it was clearly dicta. In fact, the government
conceded that it was a “person” for purposes of the Act so
the court had no reason to engage in a full analysis of the
scope of the term “any government.” Id. The district court
hit the nail on the head when it explained that:
It is one thing to say “any government” means
“the United States.” That is an entirely natural
reading of “any government.” But it’s another
thing to say “any government” means “Indian
Tribes.” Against the long‐held tradition of trib‐
16 No. 15‐3127
al immunity … “any government” is equivocal
in this regard. Moreover, it is one thing to read
“the United States” when Congress says “gov‐
ernment.” But it would be quite another, given
that ambiguities in statutes are to be resolved
in favor of tribal immunity, to read “Indian
tribes” when Congress says “government.”
D. Ct. Order at 4 (R. 23, p.4) (emphasis in original).
Meyers argues that the district court dismissed his claim
based on its erroneous conclusion that Indian tribes are not
governments. He then dedicates many pages to arguing that
Indian Tribes are indeed governments. Meyers misses the
point. The district court did not dismiss his claim because it
concluded that Indian tribes are not governments. It dis‐
missed his claim because it could not find a clear, unequivo‐
cal statement in FACTA that Congress meant to abrogate the
sovereign immunity of Indian Tribes. Meyers has lost sight
of the real question in this sovereign immunity case—
whether an Indian tribe can claim immunity from suit. The
answer to this question must be “yes” unless Congress has
told us in no uncertain terms that it is “no.” Any ambiguity
must be resolved in favor of immunity. Cooper, 132 S. Ct. at
1448. Abrogation of tribal sovereign immunity may not be
implied. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).
Of course Meyers wants us to focus on whether the Oneida
Tribe is a government so that we might shoehorn it into
FACTA’s statement that defines liable parties to include
“any government.” See Bormes, 759 F.3d at 795. But when it
comes to sovereign immunity, shoehorning is precisely what
we cannot do. Congress’ words must fit like a glove in their
unequivocality. See Bay Mills, 134 S. Ct. at 2031; C & L Enters.,
No. 15‐3127 17
532 U.S. at 418. It must be said with “perfect confidence”
that Congress intended to abrogate sovereign immunity and
“imperfect confidence will not suffice.” Dellmuth v. Muth,
491 U.S. 223, 231 (1989), superseded by statute on other
grounds as recognized in United States v. Nordic Vill. Inc.,
503 U.S. 30, 45, n.14 (1992). Congress has demonstrated that
it knows how to unequivocally abrogate immunity for Indi‐
an Tribes. It did not do so in FACTA.
This leaves one last loose end. Meyers argues that the
Fair Credit Reporting Act is a statute of general applicability
and thus is assumed to apply to Indian tribes. See Smart v.
State Farm Ins. Co., 868 F.2d 929, 932 (7th Cir. 1989), supersed‐
ed by statute on other grounds, Pub. L. No. 109–280,
§ 906(a)(2)(A), 120 Stat. 780, 1051 (2006), as recognized in
Bolssen v. Unum Life Ins. Co. of Am., 629 F. Supp. 2d 878, 881
(E.D. Wis. 2009) (“when Congress enacts a statute of general
applicability, the statute reaches everyone within federal ju‐
risdiction not specifically excluded, including Indians and
Tribes.”). As the district court correctly pointed out, “the
question here is not whether the Tribe is subject to FCRA; it
is whether Plaintiff can sue the Tribe for violating FCRA.”
D. Ct. Order at 6 (R. 23, p.6). “[W]hether an Indian tribe is
subject to a statute and whether the tribe may be sued for vio‐
lating the statute are two entirely different questions.” Flori‐
da Paraplegic, Assʹn, Inc. v. Miccosukee Tribe of Indians of Flori‐
da, 166 F.3d 1126, 1130 (11th Cir. 1999) (emphasis in origi‐
nal); see also Kiowa Tribe v. Manufacturing Tech., Inc., 523 U.S.
751, 755 (1998) (“There is a difference between the right to
demand compliance with state laws and the means available
to enforce them.”); In re Natʹl Cattle Cong., 247 B.R. at 265.
18 No. 15‐3127
The Tribe has sovereign immunity and thus the district
court’s grant of the Tribe’s motion to dismiss is AFFIRMED.