United States Court of Appeals
For the First Circuit
No. 21-1153
IN RE: BRIAN W. COUGHLIN,
Debtor.
BRIAN W. COUGHLIN,
Appellant,
v.
LAC DU FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS; L.D.F.
BUSINESS DEVELOPMENT CORP.; L.D.F. HOLDINGS, LLC; NIIWIN, LLC,
d/b/a Lendgreen,
Appellees.
APPEAL FROM THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank J. Bailey, U.S. Bankruptcy Judge]
Before
Barron, Chief Judge,
Lynch, Circuit Judge,
and Burroughs,* District Judge.
Gregory G. Rapawy, with whom Terrie L. Harman, Richard N.
Gottlieb, Michael D. Cameron, Kellogg, Hansen, Todd, Figel &
Frederick, P.L.L.C., Alfano Law Office, PLLC, and the Law Offices
of Richard N. Gottlieb were on brief, for appellant.
Andrew Adams, III, with whom Peter J. Rademacher, Zachary
* Of the District of Massachusetts, sitting by designation.
R.G. Fairlie, Andrew W. Lester, Adrienne K. Walker, Hogen Adams
PLLC, Spencer Fane LLP, and Locke Lord LLP were on brief, for
appellees.
Seth Davis, Kaighn Smith, Jr., Amy K. Olfene, and Drummond
Woodsum on brief for amici curiae professors of federal Indian law
in support of appellees.
Patrick O. Daugherty, Laura E. Jones, and Van Ness Feldman
LLP on brief for amicus curiae Native American Financial Services
Ass'n in support of appellees.
May 6, 2022
LYNCH, Circuit Judge. This case presents an important
question of first impression in our circuit: whether the Bankruptcy
Code abrogates tribal sovereign immunity. Two of our sister
circuits have already considered the question and reached opposite
conclusions. Compare Krystal Energy Co. v. Navajo Nation, 357
F.3d 1055, 1061 (9th Cir. 2004) (holding that the Code abrogates
immunity), with In re Greektown Holdings, LLC 917 F.3d 451, 460-
61 (6th Cir. 2019) (holding that the Code does not abrogate
immunity), cert. dismissed sub nom. Buchwald Cap. Advisors LLC v.
Sault Ste. Marie Tribe, 140 S. Ct. 2638 (2020). Like the Ninth
Circuit, we hold that the Bankruptcy Code unequivocally strips
tribes of their immunity.
Our decision permits debtor Brian W. Coughlin to enforce
the Bankruptcy Code's automatic stay against one of his creditors,
a subsidiary of the Lac Du Flambeau Band of Lake Superior Chippewa
Indians ("Band"). As the bankruptcy court held otherwise, see In
re Coughlin, 622 B.R. 491, 494 (Bankr. D. Mass. 2020), we reverse.
I.
In July 2019, Coughlin took out a $1,100 payday loan
from Lendgreen, a wholly owned subsidiary of the Band.1 Later that
1 Lendgreen is a trade name of Niiwan, LLC. The Band is
the sole owner of the L.D.F. Business Development Corporation.
That entity is the sole member of LDF Holdings, LLC, which in turn
is the sole member of Niiwan. All parties agree that Lendgreen is
an arm of the Band, so it enjoys whatever immunity the Band does.
- 3 -
year, he voluntarily filed a Chapter 13 bankruptcy petition in the
District of Massachusetts. On the petition, he listed his debt to
Lendgreen, which had grown to nearly $1,600, as a nonpriority
unsecured claim. He also listed Lendgreen on the petition's
creditor matrix, and his attorney mailed Lendgreen a copy of the
proposed Chapter 13 plan.
When Coughlin filed his petition, the Bankruptcy Code
imposed an automatic stay enjoining "debt-collection efforts
outside the umbrella of the bankruptcy case." Ritzen Grp., Inc.
v. Jackson Masonry, LLC, 140 S. Ct. 582, 586 (2020) (citing 11
U.S.C. § 362(a)). Despite the automatic stay, Lendgreen
repeatedly contacted Coughlin seeking repayment of his debt.
Though Coughlin told Lendgreen representatives that he had filed
for bankruptcy and provided his attorney's contact information,
Lendgreen continued to call and email him directly. Two months
after he filed the petition, Coughlin attempted suicide. He
attributes that attempt to his belief that his "mental and
financial agony would never end," and blamed his agony on
Lendgreen's "regular and incessant telephone calls, emails and
voicemails."
To stop Lendgreen's collection efforts, Coughlin moved
to enforce the automatic stay against Lendgreen and its corporate
See Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous.
Auth., 207 F.3d 21, 29 (1st Cir. 2000).
- 4 -
parents, including the Band. He sought an order prohibiting
further collection efforts as well as damages, attorney's fees,
and expenses. In response, the Band and its affiliates asserted
tribal sovereign immunity and moved to dismiss the enforcement
proceeding. The bankruptcy court agreed with the Band and granted
the motions to dismiss. See In re Coughlin, 622 B.R. at 494.
We permitted a direct appeal from that decision, see 28
U.S.C. § 158(d), and now reverse.2
II.
We review de novo the Bankruptcy Court's determination
of a pure question of law. In re IDC Clambakes, Inc., 727 F.3d
58, 63 (1st Cir. 2013).
A.
Congress may abrogate tribal sovereign immunity if it
"'unequivocally' express[es] that purpose."3 Michigan v. Bay Mills
2 We acknowledge and thank the following amici curiae for
their submissions in support of the Band: the Native American
Financial Services Association and Professors Seth Davis, Matthew
L.M. Fletcher, Joseph William Singer, Angela R. Riley, Kristen A.
Carpenter, Adam Crepelle, Gregory Ablavsky, Bethany Berger,
Alexander T. Skibine, and Addie C. Rolnick.
3 The same standard applies to states. See, e.g.,
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996)
("In order to determine whether Congress has abrogated the
States' sovereign immunity, we ask . . . whether Congress has
'unequivocally expresse[d] its intent to abrogate the
immunity.'" (quoting Green v. Mansour, 474 U.S. 64, 68 (1985))
(alteration in original)).
- 5 -
Indian Cmty. 572 U.S. 782, 790 (2014) (quoting C & L Enters.,
Inc. v. Citizen Band Potawatomi Tribe of Okla., 532 U.S. 411, 418
(2001)). "That rule of construction reflects an enduring principle
of Indian law: Although Congress has plenary authority over tribes,
courts will not lightly assume that Congress in fact intends to
undermine Indian self-government." Id.
To abrogate sovereign immunity "Congress need not state
its intent in any particular way." FAA v. Cooper, 566 U.S. 284,
291 (2012). The Supreme Court has "never required that Congress
use magic words" to make its intent to abrogate clear. Id. To
the contrary, it has explained that the requirement of unequivocal
abrogation "'is a tool for interpreting the law' and that it does
not 'displac[e] the other traditional tools of statutory
construction.'" Id. (quoting Richlin Sec. Serv. Co. v. Chertoff,
553 U.S. 571, 589 (2008)) (alteration in original); cf. Penobscot
Nation v. Frey, 3 F.4th 484, 493, 503 (1st Cir. 2021) (en banc)
(holding that the Indian canons play no role in interpreting an
unambiguous statute), cert. denied No. 21-838, 2022 WL 1131375
(U.S. Apr. 18, 2022).
In determining whether the Bankruptcy Code unequivocally
abrogates tribal sovereign immunity, we begin with the text.
Section 106(a) of the Code provides that "[n]otwithstanding an
assertion of sovereign immunity, sovereign immunity is abrogated
as to a governmental unit to the extent set forth in this section
- 6 -
with respect to" dozens of provisions of the Code, including the
automatic stay. Congress enacted § 106 in 1994 to overrule two
Supreme Court cases, which held that a prior version of the section
was insufficiently clear to abrogate state and federal sovereign
immunity. 140 Cong. Rec. 27693 (Oct. 4, 1994) (citing Hoffman v.
Conn. Dep't of Income Maint., 492 U.S. 96 (1989) and United States
v. Nordic Vill., Inc., 503 U.S. 30 (1992)). The provision's plain
statement satisfies Congress' obligation to unequivocally express
its intent to abrogate immunity for all governmental units.
We thus focus on whether Congress intended to abrogate
tribal sovereign immunity when it used the phrase "governmental
unit." Section 101(27) of the Code, enacted as part of the
Bankruptcy Reform Act of 1978, defines "governmental unit"
capaciously as:
United States; State; Commonwealth; District;
Territory; municipality; foreign state;
department, 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 foreign or domestic
government.
11 U.S.C. § 101(27). That enumerated list covers essentially all
forms of government. See Krystal Energy, 357 F.3d at 1057
("[L]ogically, there is no other form of government outside the
foreign/domestic dichotomy . . . ."). The issue is then whether
a tribe is a domestic government.
- 7 -
First, there is no real disagreement that a tribe is a
government. Tribes are not specifically excluded and fall within
the plain meaning of the term governments. Tribes are governments
because they act as the "governing authorit[ies]" of their members.
Government, Webster's Third New International Dictionary 982
(1961); accord government, The Random House Dictionary of the
English Language 826 (2d ed. 1987) ("[T]he governing body of people
in a state, community, etc.; administration."). While tribes have
limited authority over non-members, they exercise sovereignty over
their members and territories. See Atkinson Trading Co. v.
Shirley, 532 U.S. 645, 650–51 (2001). As examples, "Indian tribes
retain their inherent power to determine tribal membership, to
regulate domestic relations among members, and to prescribe rules
of inheritance for members," Montana v. United States, 450 U.S.
544, 564 (1981); see, e.g., Constitution and Bylaws of the Lac Du
Flambeau Band of Lake Superior Chippewa Indians of Wisc., art. VI,
https://www.ldftribe.com/uploads/files/Court-Ordinances/
CONSTITUTION%20AND%20BYLAWS.pdf, and also largely retain the
authority to prosecute members for offenses committed in their
territories, 18 U.S.C. § 1152; see Negonsott v. Samuels, 507 U.S.
99, 102-03 (1993). Indeed, the very purpose of tribal sovereign
immunity is to protect "Indian self-government." Bay Mills, 572
U.S. at 790.
- 8 -
Second, it is also clear that tribes are domestic, rather
than foreign, because they "belong[] or occur[] within the sphere
of authority or control or the . . . boundaries of" the United
States. Domestic, Webster's Third, supra, at 671.4 Thus, a tribe
is a domestic government and therefore a government unit.
This conclusion is drawn from the text. It is also
supported by historical context. When Congress abrogated immunity
in 1994, it did so against the preexisting backdrop of § 101(27).
Indeed, at least one published bankruptcy opinion shows an
understanding even before 1978 that tribes could function as and
claim the benefits of governments. See In re Bohm's Inc., 5 Bankr.
Ct. Dec. 259, 259 (Bankr. D. Ariz. 1979) (prohibiting discharge of
and prioritizing fees owed to tribe under pre-1978 bankruptcy law).
As Coughlin argues, Congress was aware of the existing definition
of "governmental unit" when it incorporated it into § 106. The
Band wants to ignore that point. But the Code was clear in 1994
that tribes were governmental units. As a result, the Band's focus
on § 106 as though it were freestanding is simply misplaced.
4 The dissent implies that we have cherry-picked that
definition. Not so. See, e.g., domestic, The Random House
Dictionary of the English Language 581 (2d ed. 1987) ("[O]f or
pertaining to one's own or a particular country as apart from other
countries . . . ."); domestic, The American Heritage Dictionary
416 (2d college ed. 1982) ("Of or pertaining to a country's
internal affairs."); domestic, Webster's New Collegiate Dictionary
338 (1975) ("[O]f, relating to, or carried on within one and esp.
one's own country[.]").
- 9 -
Were that not enough, Congress was also well aware when
it enacted § 101(27) in 1978 and § 106 in 1994 that Indian tribes
were legally "domestic dependent nations." All three branches of
government have long used the phrase. Chief Justice Marshall
coined it in 1831.5 Cherokee Nation v. Georgia, 30 U.S. 1, 17
(1831). Since at least 1853, the Executive Branch too has adopted
the phrase.6 See Conts. of the Potawatomie Indians, 6 Op. Att'y
Gen. 49, 54 (1853). Members of Congress have used the phrase as
well since at least 1882, see 13 Cong. Rec. S2804, S2806 (Apr. 12,
1882) (statement of Sen. Garland), including Members of Congress
referring to "domestic dependent nations" on the floor during the
sessions when Congress enacted the relevant provisions of the Code,
139 Cong. Rec. 26542 (Oct. 28, 1993) (statement of Rep. Thomas);
124 Cong. Rec. 8380 (Apr. 3, 1978) (statement of Sen. Hatch).
Indeed, Senator Hatch, who discussed Cherokee Nation in depth on
5 The Supreme Court has repeated that formulation many
times. See Okla. Tax Comm'n v. Citizen Band Potawatomi Indian
Tribe of Okla., 498 U.S. 505, 509 (1991); Duro v. Reina, 495 U.S.
676, 699 (1990) (Brennan, J., dissenting); Brendale v.
Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408,
451 (1989); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 169
n.18 (1982) (Stevens, J., dissenting); Baker v. Carr, 369 U.S.
186, 215 (1962); Roff v. Burney, 168 U.S. 218, 221 (1897).
6 The phrase appears in opinions and adjudications across
the Executive Branch. See, e.g., Bay Bancorporation Green Bay,
Wisconsin, 1995 WL 356948, at *1 (F.R.B. June 14, 1995); Appeal of
Devil's Lake Sioux Tribe, 94 Interior Dec. 101, 118 (IBIA 1987);
Powers of Indian Tribes, 55 Interior Dec. 14, 47 (1934); Timber on
Indian Lands, 19 Op. Att'y Gen. 232, 233 (1889).
- 10 -
the floor in 1978 and knew that "[t]he peculiar status of Indian
tribes was defined by Chief Justice Marshall . . . as that of
'domestic dependent nations,'" 124 Cong. Rec. 8380, was the ranking
member of the Judiciary Committee when it marked up the 1994
amendments to the Code. In light of this consistent use across
government, we have no doubt that Congress understood tribes to be
domestic dependent nations.
As domestic dependent nations are a form of domestic
government, it follows that Congress understood tribes to be
domestic governments. The phrases are functionally equivalent.
In both phrases, "domestic" means the same thing: occurring within
the boundaries of the United States. Compare Cherokee Nation, 30
U.S. at 17 ("The Indian territory is admitted to compose a part of
the United States.") with domestic, Webster's Third, supra, at
671. Nation, in the sense Chief Justice Marshall used it in
Cherokee Nation, refers to a government.7 Dependent simply refers
to a subset of nations or governments. Id. at 17; see United
States v. Cooley, 141 S. Ct. 1638, 1643 (2021). Taken together,
7 Cherokee Nation discusses tribes as dependent nations to
discuss the extent of their sovereign powers and to contrast their
limited sovereignty with the full sovereignty of full nation-
states. See 30 U.S. at 16-17. The salient characteristic is the
power to make and apply laws. See sovereignty, II Bouiver's Law
Dictionary 406-407 (Lawbook Exch. 2012) (1839); see also sovereign
power, T.W. Williams, A Compendious and Comprehensive Law
Dictionary (Lawbook Exch. 2006) (1816).
- 11 -
then, the phrase "domestic dependent nation" refers to a form of
domestic government.
Thus, when Congress enacted §§ 101(27) and 106, it
understood tribes to be domestic governments, and when it abrogated
the sovereign immunity of domestic governments in § 106, it
unmistakably abrogated the sovereign immunity of tribes.
Finally, we draw additional support from the Bankruptcy
Code's structure. Congress did not just strip immunity. It also
granted benefits. Because we must presume that Congress uses a
defined phrase consistently in the same statute, see Azar v. Allina
Health Servs., 139 S. Ct. 1804, 1812 (2019), the definition of
governmental unit applies across the Code. As a result, tribes
also enjoy the special benefits afforded to governmental units
under the Code, such as priority for certain unsecured claims, see
11 U.S.C § 507(a)(8), and certain exceptions to discharge, see id.
§ 523(a). Many of those benefits enable governmental units,
including tribes, to collect tax revenue. See, e.g., id. §§ 362(b)
(excepting tax audits and liens from the automatic stay), 507(a)(8)
(giving priority to certain tax claims), 523(a) (prohibiting
discharge of fines and taxes), 1305 (allowing post-petition tax
claims). Thus, in practice, tribes benefit from their status as
governmental units. Moreover, tribal self-determination -- the
animating force behind modern federal Indian policy -- benefits
when tribes can collect taxes. These practical and policy
- 12 -
considerations bolster our conclusion that tribes are governmental
units and thus that the Code abrogates tribal sovereign immunity.
III.
The Band and our dissenting colleague offer many
arguments for immunity. None persuade us.
A.
The Band contends that Congress cannot abrogate tribal
sovereign immunity unless it expressly discusses tribes somewhere
in the statute. But controlling Supreme Court precedent forecloses
that argument. See Cooper, 566 U.S. at 291. The Band purports to
contravene the text by reliance on silence in the legislative
history. And it also tries to rely on canons of construction that
we use only to resolve ambiguity. Those arguments, however, falter
in the face of the Bankruptcy Code's clear text. See Penobscot
Nation, 3 F.4th at 493, 503.
The Band primarily argues that the Bankruptcy Code
cannot abrogate tribal sovereign immunity because it never uses
the word "tribe." It points to Greektown, in which the Sixth
Circuit held that the Bankruptcy Code did not abrogate tribal
sovereign immunity because it "lack[s] the requisite clarity of
intent."8 917 F.3d at 461. To reach that conclusion, Greektown
8 The Band also cites Meyers v. Oneida Tribe of Indians of
Wisconsin, 836 F.3d 818 (7th Cir. 2016) and In re Whitaker, 474
B.R. 687 (B.A.P. 8th Cir. 2012). Greektown largely adopted the
- 13 -
explained that "[e]stablishing that Indian tribes are domestic
governments does not lead to the conclusion that Congress
unequivocally meant to include them when it employed the phrase
'other foreign or domestic government.'" Id. at 460 (emphasis in
original). That contention cannot be correct. Congress must
abrogate immunity explicitly. It has done so here, as expressly
eliminating immunity as to governmental units, which, as we have
explained, include tribes.
The Band's argument boils down to a magic-words
requirement. See Greektown, 917 F.3d at 460 ("[T]here 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."
(quoting Meyers, 836 F.3d at 824) (emphasis in original)). And
Cooper forbids us from adopting a magic-words test. See 566 U.S.
at 291. In making that argument, the Band advocates an even more
extreme position than the one the Sixth Circuit adopted in
Greektown.9 That Congress took a belt-and-suspenders approach in
Seventh Circuit's reasoning in Meyers. See 917 F.3d at 458-61.
We note that Meyers dealt with a different statute, the Fair and
Accurate Credit Transaction Act. But to the extent that the same
logic applies to both statutes, we reject Meyers for the same
reasons we reject Greektown. We also reject Whitaker, which
expressly requires "magic words" to abrogate tribal sovereign
immunity. See 474 B.R. at 695. As we explain, Cooper forbids
such a rule. See 566 U.S. at 291.
9 The Sixth Circuit suggested that Congress could avoid using
- 14 -
drafting an unmistakably broad provision does not somehow narrow
the text or obscure Congress' intent. See Facebook, Inc. v.
Duguid, 141 S. Ct. 1163, 1172 n.7 (2021); see generally E. Leib &
J. Brudney, The Belt-and-Suspenders Canon, 105 Iowa L. Rev. 735
(2020).
The Band next argues from the lack of a specific
discussion of tribes in the legislative history. Cooper again
supplies the response. "Legislative history cannot supply a waiver
that is not clearly evident from the language of the statute."
566 U.S. at 290 (citing Lane v. Peña, 518 U.S. 187, 192 (1996)).
The inverse is also true: legislative history cannot introduce
ambiguity into a clear statute. Penobscot Nation, 3 F.4th at 491
(citing Carcieri v. Salazar, 555 U.S. 379, 392 (2009)). That maxim
is never truer than when the legislative history is silent. See
Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1143 (2018)
("Silence in the legislative history, no matter how clanging,
cannot defeat the better reading of the text and statutory
context." (quotation marks omitted) (quoting Sedima, S.P.R.L. v.
the word tribe if it said that "'sovereign immunity is abrogated
as to all parties who could otherwise claim sovereign immunity.'"
Greektown, 917 F.3d at 461 n.10 (quoting Krystal Energy, 357 F.3d
at 1058). But its explanation goes astray because Congress
essentially adopted that formulation in the Bankruptcy Code. See
Krystal Energy, 357 F.3d at 1057 ("[L]ogically, there is no other
form of government outside the foreign/domestic dichotomy
. . . .").
- 15 -
Imrex Co., 473 U.S. 479, 495 n.13 (1985))). Nor would we
necessarily expect a discussion of tribes when they so clearly fit
within the text of the statute, as we have discussed. The lack of
discussion of tribes in the legislative history cannot introduce
ambiguity into an unambiguous statute.10
The Band then turns to canons of construction which,
because they apply only to ambiguous statues, offer it no support.
Without ambiguity, the Indian canons of construction play no role
in our analysis. Penobscot Nation, 3 F.4th at 493, 503. Nor does
the ejusdem generis canon support the Band's position.11 True,
we draw the meaning of "other foreign or domestic government" from
the preceding enumeration of governments. See Epic Sys. Corp. v.
Lewis, 138 S. Ct. 1612, 1625 (2018). True as well, the relevant
category is governments like the federal government, states,
territories, municipalities, and foreign states and
instrumentalities of the federal government, states, territories,
municipalities, and foreign states. Neither of those points,
10 The dissent also notes that the legislative history is
silent about tribes. But as the dissent admits, in determining
whether Congress has abrogated sovereign immunity, we must look
only to the language of the statute and not to legislative history.
Dissenting Op. at 54 (citing Hoffman, 492 U.S. at 96); see also
Hoffman, 492 U.S. at 104.
11 The Band references both ejusdem generis and noscitur a
sociis. Because "other foreign or domestic government" is a catch-
all phrase following a specific list, ejusdem generis is the
relevant canon. See A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 195-199, 205 (2012).
- 16 -
however, cuts against our reading. All are forms of government.
All, except municipalities, enjoy some immunity from unconsented
suit. If tribes are not domestic governments, it must be because
they are different in some relevant way from governments like
territories. We look to governmental functions in interpreting
§ 101(27). See TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 931
(1st Cir. 1995). We see no functional difference that would allow
us to conclude that Congress intended tribes to fall outside the
definition of governmental unit.12
B.
The dissent construes the phrase "domestic governments"
to mean only those governments that trace their origins to the
Constitution. Dissenting Op. at 39. But we cannot adopt that
construction without imposing new rules on how Congress may
legislate in violation of controlling Supreme Court precedent
because the text does not permit such a reading.
The dissent offers no reason to think that Congress
intended to limit the list of domestic governments to those "that
can trace [their] origins either to our federal constitutional
system of government or to that of some 'foreign state.'" In
injecting the constitutional character of an entity into ordinary
12 The dissent also draws on the ejusdem generis canon in
making a related point, which we reject for similar reasons. See
infra Part III.B.
- 17 -
statutory interpretation the dissent proposes a radical new rule
of construction -- one never previously adopted by any court, never
briefed by the parties, and certainly never within Congress'
contemplation. We are interpreting the phrase domestic government
as Congress enacted it in 1979; we are not interpreting what a
provision of the Constitution meant at the Framing. In support of
its departure from established principles of statutory
interpretation, the dissent offers, at best, only a definition of
the word domestic as "pertaining, belonging or relating to . . .
the place of birth, origin, creation, or transaction." Dissenting
Op. at 39 (quoting domestic, Black's Law Dictionary (5th ed.
1979)). But the dissent can only apply that definition by
stripping it of context. When referring to products, the word
domestic is used to describe origins: we refer to domestic cars
and domestic beers. The word does not, however, carry those
connotations when it refers to governments. Compare domestic,
Oxford English Dictionary 944 (2d ed. 1989) ("Indigenous; made at
home or in the country itself; native, home-grown, home-made."),
with id. ("Of or pertaining to one's own country or nation; not
foreign, internal, inland, 'home'."). The dissent protests that
both definitions are available; only one, however, works in
context. Moreover, the phrase appears in a classic dichotomy
between the words "foreign" and "domestic," which supports our
understanding that the word domestic refers to the territory in
- 18 -
which the government exists. And even if the word "domestic" could
bear the meaning the dissent ascribes to it, we have no reason to
choose an obscure use of the word over an obvious one. In applying
ejusdem generis, the genus should be "obvious and readily
identifiable." Scalia & Garner, supra at 199.
The dissent's reasoning fails to apply the ordinary
meaning of an unambiguous statute -- which uses words long
understood to refer to tribes -- because Congress did not expressly
refer to "tribes." "[R]equring Congress to use magic words to
accomplish a particular result . . . violates the baseline rule of
legislative supremacy." A. Barrett, Substantive Canons and
Faithful Agency, 90 Boston Univ. L. Rev. 109, 166-67 (2010). There
is no inconsistency between the avoidance-of-magic-words rule and
the clear-statement rule for abrogating sovereign immunity. The
clear-statement rule "'is a tool for interpreting the law' and
. . . it does not 'displac[e] the other traditional tools of
statutory construction.'" Cooper, 566 U.S. at 291 (quoting Richlin
Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 589 (2008)) (alteration
in original). Yet the dissent has transformed that interpretive
tool into a substantive hurdle for Congress to overcome. The
dissent does suggest at one point that the phrase "every
government" would meet its standard. Dissenting Op. at 37 n.16,
47. But to require that phrase transgresses Cooper's prohibition
- 19 -
on magic words no less than requiring "tribes" to appear in the
statute.
The dissent equates our accepted and standard
dictionary-based meaning of the phrase "domestic government" with
its preferred and uncommon definition. But they are not the same.
An interpretation of the phrase "domestic government" that
excludes Indian tribes with no textual basis for so doing is
implausible. Cf. United States v. Ojeda Rios, 495 U.S. 257, 263
(1990) (holding implausible a narrow reading of a statute that
disregards context). For the dissent's preferred reading to work,
we would need some reason to believe that Congress intended the
word "domestic" to apply to place of origin. The dissent offers
none. By the same logic, "domestic government" could refer to
household management. But in this context, it certainly does not.
Nor, in this context, does it refer to place of origin.
We also briefly respond to a few objections the dissent
raises to our interpretation of § 101(27).
The dissent responds to our surplusage analysis,
contending that the phrase "other domestic governments" would have
meaning even if it did not encompass tribes. The dissent would
read the phrase to refer only to "half-fish, half-fowl governmental
entities like authorities or commissions that are created through
interstate compact." Dissenting Op. at 31-32; see also id. at 42.
The problem with that claim is that an agency created by interstate
- 20 -
compact enjoys an immunity only as an instrumentality of its
creator states. See Hess v. Port Auth. Trans-Hudson Corp., 513
U.S. 30, 40-44 (1994); Lake Country Ests., Inc. v. Tahoe Reg'l
Plan. Agency, 440 U.S. 391, 401 (1979). Nor does the singular
form of the governments listed in § 101(27) matter. Congress has
instructed us not to fret over whether a statute uses a word in
its singular or plural form: "[i]n determining the meaning of any
Act of Congress, unless the context indicates otherwise[] words
importing the singular include and apply to several persons,
parties, or things[] [and] words importing the plural include the
singular[] . . . ." 1 U.S.C. § 1. Through that lens, § 101(27)
refers to an "instrumentality . . . of State[s]." The definition
thus includes interstate-compact agencies. The dissent offers no
other examples of governments that would fit the phrase, nor have
we found any. And so, if we interpret the phrase to exclude
tribes, we are left with surplusage.
The dissent also points to Congress' inclusion of
"municipalities" in the definition of governmental units as
incongruous because municipalities do not possess sovereign
immunity. See Owen v. City of Independence, 445 U.S. 622, 645–46
(1980). That argument, which the Band never made and which
Coughlin had no opportunity to address, does not work. The
definition applies across the code. It is not odd that Congress
wanted municipalities to be treated like other governments for
- 21 -
other purposes. See, e.g., 11 U.S.C §§ 362(b), 507(a)(8), 523,
1305.13
IV.
We reverse the decision of the bankruptcy court
dismissing Coughlin's motion to enforce the automatic stay and
remand for further proceedings consistent with this opinion.
- DISSENTING OPINION FOLLOWS -
13 In yet another argument not advanced by the Band, the
dissent seeks support for its statutory interpretation from a
Department of Agriculture regulation, which defines "governmental
entity" for the purposes of an organic food marketing program as
"[a]ny domestic government, tribal government, or foreign
governmental subdivision providing certification services."
Dissenting Op. at 45 (citing 7 C.F.R. § 205.2). The meaning
Congress gave to an unrelated statute does not change when the
Administrator of the Agricultural Marketing Service decides to add
a possibly superfluous phrase to a regulation. Nor should we draw
meaning from the fact that an agency once distinguished between
domestic governments and tribal governments, especially because
federal agriculture law often singles out "tribal governments."
See, e.g., 7 U.S.C. §§ 950bb, 1632c, 1639p, 2671, 6923, 7518,
7655d, 2204b-3, 2009bb-1.
- 22 -
BARRON, Chief Judge, dissenting. Indian tribes enjoy
immunity from suit as a "core aspect[] of [their] sovereignty."
Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788 (2014).
Thus, just as Congress generally may abrogate state sovereign
immunity only by stating its intent to do so "clear[ly]" and
"unequivocal[ly]," Congress generally may abrogate tribal
sovereign immunity only with that same degree of clarity. See id.
at 790 (quoting C&L Enterprises, Inc. v. Citizen Band Potawatomi
Tribe of Okla., 532 U.S. 411, 418 (2001)).
Here, of course, the question of whether Congress has
abrogated tribal sovereign immunity arises in connection with the
federal Bankruptcy Code ("Code"). That is potentially significant
because Congress's constitutional power to make uniform bankruptcy
law presents a special case when it comes to the abrogation of
state sovereign immunity. Cf. Cent. Va. Cmty. Coll. v. Katz, 546
U.S. 356, 362, 379 (2006) (holding that "the Bankruptcy
Clause . . . reflects the States' acquiescence in a grant of
congressional power to subordinate to the pressing goal of
harmonizing bankruptcy law sovereign immunity defenses that might
have been asserted in bankruptcy proceedings").
No argument has been made to us, however, that this same
constitutional power permits Congress to abrogate Indian tribes'
sovereign immunity in the Code without doing so clearly and
unequivocally. We thus confront in this appeal an abrogation
- 23 -
question regarding tribal immunity under the Code that is statutory
rather than constitutional in nature.
The statutory question implicates two provisions of the
Code: 11 U.S.C. § 106, which expressly abrogates the immunity
from suit of a "governmental unit" as to certain specifically
enumerated Code provisions, and 11 U.S.C. § 101(27), which
separately defines that critical term. The parties agree that the
clear and unequivocal abrogation of immunity for "governmental
unit[s]" in § 106 applies to a case that, like this one, involves
a debtor's motion for damages against a creditor for willfully
violating the automatic stay that has been in place since the
debtor filed for bankruptcy. See 11 U.S.C. § 362(k)(1)
(authorizing "an individual injured by any willful violation of a
stay" to "recover actual damages, including costs and attorneys'
fees, and, in appropriate circumstances, . . . punitive damages").
They further agree that the debtor in this case, Brian Coughlin,
is seeking damages pursuant to § 362(k)(1) against a creditor that
is entitled to assert the immunity from suit that Indian tribes
generally enjoy, due to that creditor's ties to the Lac du Flambeau
Band of Lake Superior Chippewa Indians. Thus, the sole question
for us is a discrete but novel one in our Circuit: Did Congress
clearly and unequivocally define a "governmental unit" in
§ 101(27) to include an Indian tribe? As I will explain, in my
view, Congress did not.
- 24 -
I.
Section 101(27) defines the term "governmental unit" as
follows:
United States; State; Commonwealth; District;
Territory; municipality; foreign state;
department, 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 foreign or domestic
government.
11 U.S.C. § 101(27) (emphasis added).
As is evident from this text, Congress did not mention
Indian tribes in this definition. As is also evident from this
text, Congress did not do so even though it did name many
governmental types, including some that, like Indian tribes, enjoy
an immunity from suit that Congress may abrogate only clearly and
unequivocally. See, e.g., Atascadero State Hosp. v. Scanlon, 473
U.S. 234, 240 (1985) (articulating the abrogation standard for
states' sovereign immunity).
Thus, a reader interested in knowing whether Indian
tribes are "governmental unit[s]" cannot help but notice that
Congress, for some reason, did not use the surest means of clearly
and unequivocally demonstrating that they are. Nor can such a
reader -- if reasonably well informed -- help but notice that
Congress chose not to do so even though Indian tribes are hardly
an obscure type of immunity-bearing sovereign and even though
- 25 -
Congress has expressly named them when abrogating their sovereign
immunity in every other instance in which a federal court has found
that immunity to have been abrogated. See, e.g., Kiowa Tribe of
Okla. v. Mfg. Tech., Inc., 523 U.S. 751, 758 (1998) (listing
instances in which tribal immunity was abrogated through explicit
mention of Indian tribes); see also In re Greektown Holdings, LLC,
917 F.3d 451, 460 (6th Cir. 2019) (stating that neither the Sixth
Circuit nor the Seventh Circuit was able to find even "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" and noting that
"there is only one example at the circuit court level," Krystal
Energy Co. v. Navajo Nation, 357 F.3d 1055 (9th Cir. 2004), which
interprets the same provisions of the Bankruptcy Code at issue in
this case (emphasis in original) (quoting Meyers v. Oneida Tribe
of Indians of Wis., 836 F.3d 818, 824 (7th Cir. 2016))); Krystal
Energy Co., 357 F.3d at 1059 (noting that the Ninth Circuit could
"find no other statute in which Congress effected a generic
abrogation of [tribal] sovereign immunity" without specifically
naming Indian tribes).
In fact, if unusually well informed, such a reader could
not help but notice one more thing, too. Congress made express
reference to "Indian Territory" in a precursor attempt to set the
rules of the road for bankruptcy under federal law. See Bankruptcy
- 26 -
Act of July 1, 1898, 30 Stat. 544, 544 (1898). Yet, in the
provision of the Code addressing whether Indian tribes would retain
their sovereign immunity, Congress for some reason chose not to
make any mention of Indian tribes at all.
The obvious question for such a reader, then, is why?
Why, if Congress wanted to be crystal clear in abrogating tribal
immunity through the Code, did it not use the clearest means of
abrogating that immunity by including "Indian Tribe" -- or its
equivalent -- in the list of expressly named governmental types
that makes up the bulk of § 101(27)?
One possible answer is quite straightforward: Congress
did not mention Indian tribes in § 101(27) because Congress did
not intend to include them as "governmental unit[s]." See In re
Greektown Holdings, LLC, 917 F.3d at 462 ("Congress's failure to
[explicitly mention Indian tribes], after arguably mentioning
every other sovereign by its specific name, likely constitutes
'[a] circumstance[] supporting [the] sensible inference' that
Congress meant to exclude them, pursuant to the familiar expressio
unius canon." (alteration in original) (quoting Chevron U.S.A.
Inc. v. Echazabal, 536 U.S. 73, 81 (2002))).
The majority rejects that straightforward answer. It
holds that § 101(27)'s trailing "or other . . . domestic
government" phrase, which itself makes no mention of Indian tribes,
nonetheless does for them what that same statutory provision's
- 27 -
preceding express list does not: clearly and unequivocally define
tribes to be "governmental unit[s]."
In other words, the majority is of the view that Congress
thought both that it would be perfectly clear to any reader that
the general phrase "other . . . domestic government[s]"
encompasses Indian tribes and that it would not be similarly clear
to any reader that this same phrase encompasses either "United
States; State; Commonwealth; District; Territory; municipality;
foreign state," or a "department, agency, or instrumentality of
the United States . . . , a State, a Commonwealth, a District, a
Territory," or "a municipality." 11 U.S.C. § 101(27). And so,
the majority apparently thinks, Congress saw a need to name
expressly each of those governmental types, but no similar need to
name Indian tribes.
That understanding of congressional intent is -- to my
mind, at least -- hardly intuitive. But, I do not make that
observation to suggest that Congress must name Indian tribes to
abrogate their immunity. I make it only to emphasize that it is
not enough for us to conclude that the phrase "or other . . .
domestic government" could be read to encompass Indian tribes.
Rather, for us to adopt that reading, we must have "perfect
confidence" in it, Dellmuth v. Muth, 491 U.S. 223, 231 (1989),14
14 As the majority points out, the "clear and unequivocal
- 28 -
because that reading attributes to Congress an intention to
abrogate a "core aspect[] of [tribal] sovereignty," Bay Mills
standard" for abrogation is the same for states and for tribes,
see Maj. Op. at 5 n.3 ("In order to determine whether Congress has
abrogated the States' sovereign immunity, we ask . . . whether
Congress has 'unequivocally expresse[d] its intent to abrogate the
immunity.'" (alteration in original) (quoting Seminole Tribe of
Fla. v. Florida, 517 U.S. 44, 55 (1996))), notwithstanding that
tribal immunity and state sovereign immunity emanate from
different legal sources and are not perfectly coextensive, Kiowa
Tribe of Okla., 523 U.S. at 755-56. Thus, because the "perfect
confidence" requirement set forth Dellmuth is a gloss on the "clear
and unequivocal" standard, it applies to the abrogation of tribal
immunity as well.
I do recognize that the question that we face here concerns
the scope of a definition that applies throughout the Code. And,
while this feature of § 101(27) could suggest that the "clear and
unequivocal" standard does not apply to the interpretation of that
provision's definition of "governmental unit," neither party has
raised such an argument to us. Moreover, the history of
§ 101(27)'s enactment supports applying the "clear and
unequivocal" standard to it, as Congress defined the term
"governmental unit" at the same time that it enacted § 106, which
used that same term to abrogate sovereign immunity. See 11 U.S.C.
§§ 101(27) & 106 (1978). I thus proceed on the assumption -- as
do the parties, the majority, and all the circuits that have ruled
on this issue -- that the "clear and unequivocal" standard applies
to the interpretive question we face here. It is especially
prudent to do so, I should add, given that if the "clear and
unequivocal" standard were inapplicable, we would be left with the
question whether the Indian canon of construction would apply,
such that, as the Band here separately contends, the definition of
"governmental unit" within the Code should be read not to abrogate
an Indian tribe's immunity from suit on this basis alone. See
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 notions of sovereignty and
with the federal policy of encouraging tribal independence.");
Cty. of Yakima v. Confederated Tribes & Bands of Yakima Indian
Nation, 502 U.S. 251, 269 (1992) (explaining that a "[s]tatute[]
[is] to be construed liberally in favor of the Indians, with
ambiguous provisions interpreted to their benefit") (quoting
Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985))).
- 29 -
Indian Cmty., 572 U.S. at 788; see also United States v. Nordic
Village, Inc., 503 U.S. 30, 37 (1992) (explaining that if it is
"plausible" to read a statute as not abrogating a sovereign's
immunity from suit, that "is enough to establish that . . . [it]
is not 'unambiguous'" that statutory provision abrogates that
sovereign's immunity). Hence, the key question that is my focus
in what follows: does the majority's reading of § 101(27) justify
our having "perfect confidence" in it?
II.
I recognize that one argument for concluding that the
phrase "other . . . domestic government" must encompass Indian
tribes is that, otherwise, the phrase would have no meaning at
all. The phrase must be referring to something, and so, if not
Indian tribes, then what? See Corley v. United States, 556 U.S.
303, 314 (2009) ("[A] statute should be construed so that effect
is given to all its provisions, so that no part will be inoperative
or superfluous, void or insignificant." (quoting Hibbs v. Winn,
542 U.S. 88, 101 (2004))).
But, I do not see how the canon against surplusage can
engender the kind of confidence in the majority's Indian tribe-
inclusive reading that is required, given the immunity-abrogating
effect that such a reading would have, insofar as the statutory
text otherwise cannot. For, even if the phrase "or other . . .
domestic government" were not read to include Indian tribes, it
- 30 -
still could be read to pick up otherwise excluded, half-fish, half-
fowl governmental entities like authorities or commissions that
are created through interstate compacts, just as the phrase "or
other foreign . . . government" similarly could be read to pick up
the joint products of international agreements. See, e.g.,
Atlantic States Marine Fisheries Commission,
http://www.asmfc.org/about-us/program-overview (last visited
April 12, 2022) (a body consisting of representation from fifteen
states responsible for fishery management); cf. Jam v. Int'l Fin.
Corp., 139 S. Ct. 759, 765 (2019) (discussing sovereign immunity
in the context of international organizations, such as the World
Bank).
In fact, the trailing phrase in § 101(27) seems quite
well-suited to that modest, residuum-defining function. Such
joint entities are not susceptible of the kind of one or two-word
description ("Interstate Commission, Authority or the Like"?
"Products of compacts or agreements"?) that -- like Indian tribes
themselves -- each of the expressly listed types of foreign or
domestic governments is. Nor do any other words in § 101(27) lend
themselves to a construction that would encompass such odd
governmental hydras.
The majority contends in response that these types of
entities are already encompassed within § 101(27)'s definition of
"governmental unit" as "instrumentalit[ies] . . . of a State,"
- 31 -
such that the residual phrase "or other . . . domestic government"
need not apply. See Maj. Op. at 20-21. But, why would we think
such a joint entity is an "instrumentality" of a "State" when it
is a body that is formed by more than one State through an
interstate compact blessed by Congress and has a regulatory purview
greater than that of a single state? See, e.g., Atlantic States
Marine Fisheries Commission, http://www.asmfc.org/about-
us/program-overview (last visited April 12, 2022) (noting that the
Commission's fishery management plans are binding on all the
Atlantic coast states that the plans apply to and that noncompliant
states can be fined or face a fishing moratorium).15
Moreover, if the majority is right that such joint-State
entities are "instrumentalities' of "a State," then what meaning
would the phrase "other . . . domestic government" at issue have?
Is the majority suggesting that Congress included the trailing
phrase "other domestic government" for the sole purpose of
including Indian tribes? If so, is it of the view that Congress
had Indian tribes -- and only Indian tribes -- in mind in using
15 The majority notes that that "an agency created by
interstate compact enjoys an immunity only as an instrumentality
of its creator states." See Maj. Op. at 20. But, the fact that
such interstate agencies can have sovereign immunity, does not
mean that the phrase "instrumentalit[ies] . . . of a State,"
refers to such entities, as the definition of "governmental unit"
is used throughout the Code and includes non-sovereign-immunity-
bearing entities like municipalities. And, nothing in Hess v.
Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994), says otherwise,
because that case was not construing that provision of the Code.
- 32 -
that phrase but nonetheless thought it clearest not to name them
and to refer to them instead in only much more general terms,
notwithstanding Congress's obligation to abrogate Indian tribes'
immunity only clearly and unequivocally?
Of course, even if the canon against surplusage does not
provide the requisite clarity, the text itself -- unaided by any
helping canon -- might do so on its own. And, the majority does
conclude, like the Ninth Circuit, that there is no need to resort
to an interpretive canon to find by inference that Indian tribes
clearly and unequivocally fall within § 101(27) because the
ordinary meaning of the phrase "domestic government" compels that
finding directly.
As the Ninth Circuit puts the point, "Indian tribes are
certainly governments," and there is no space between the
"foreign/domestic dichotomy, unless one entertains the possibility
of extra-terrestrial states." Krystal Energy Co., 357 F.3d at
1057. Thus, the Ninth Circuit concludes that it follows that an
Indian tribe is, like any "government," necessarily "domestic"
insofar as it is not -- and neither party here suggests that an
Indian tribe is -- "foreign," such that an Indian tribe necessarily
is a "domestic government." Id. But, as I will next explain,
this logic is not as airtight as it might seem.
- 33 -
III.
The juxtaposition of "domestic" and "foreign" in
§ 101(27) shows -- as the majority appears to agree -- that
Congress intended the adjective "domestic" to refer here to the
"United States" -- in some fashion -- and not to what is "foreign"
to it. Thus, the scope of the class "or other . . . domestic
government" depends on the nature of the tie that Congress had in
mind between a "government" and the United States, as, given the
statutory text, it is a government's tie to the United
States -- and not to what is "foreign" to the United States -- that
makes it "domestic."
From that uncontroversial premise, the Ninth Circuit and
the majority then each goes on to conclude that the words
"domestic" and "foreign" combine to make it perfectly clear that
any "government" that operates within the metes and bounds of the
physical territory that the United States encompasses has the kind
of tie to the United States that makes it not "foreign," and thus
a "domestic government." See id. The majority supports this
conclusion by pointing to a definition in standard usage, from the
time § 101(27) was enacted, of "domestic," which is "'occur[ring]
within . . . the . . . boundaries of'" the "domestic" -- i.e.,
non-"foreign" -- place in question. Maj. Op. at 9 (quoting
domestic, Webster's Third New International Dictionary 671
(1961)); see also Maj. Op. at 9 n.4 (defining domestic as "[o]f,
- 34 -
relating to, or carried on within one and esp. one's own country"
(quoting domestic, Webster's New Collegiate Dictionary 338
(1975))).
I do not dispute that such a reading is a possible one.
Indian tribes -- insofar as they are a species of "government,"
cf. In re Whitaker, 474 B.R. 687, 695 (B.A.P. 8th Cir. 2012)
(questioning whether Indian tribes, in light of their status as
"nations," are best understood to be "government[s]" referenced in
§ 101(27)) -- operate within the United States as a geographic
location and not, in that same territorial sense, within any place
that is "foreign" to it. So, I can see how the statutory text
could be read as the majority reads it -- especially if we focus
only on its trailing phrase in isolation.
But, given the interpretive task in which we are engaged,
it is not enough for us to be convinced that the text could be
read to include Indian tribes. Indeed, it is not even enough for
us to be convinced that, all else equal, the better reading of the
text is that it does include Indian tribes. Rather, because we
are trying to determine whether Congress -- through that phrase
-- abrogated tribal sovereign immunity, we must be convinced that
there is no plausible way of reading those words to exclude Indian
tribes. And, as I will next explain, I do not see how we could be
convinced of that, once we consider that phrase in the context in
which it appears. See Abramski v. United States, 573 U.S. 169,
- 35 -
179 (2014) ("[W]e must (as usual) interpret the relevant words not
in a vacuum, but with reference to the statutory context.").
Notably, the majority's reading necessarily makes the
phrase "or other foreign or domestic government" a catch-all for
every species of "government," near or far, that can be found
anywhere on Earth. Yet, if the majority is right that Congress
had that sweeping intention, then it is curious to me that Congress
chose to express that intent in the way that it did. After all,
Congress easily could have used the simpler and seemingly self-
evidently all-encompassing phrase "any" -- or, even better "every"
-- "government" to be the sole means of defining a "governmental
unit." Cf. Parden v. Terminal Ry. of Ala. State Docks Dep't, 377
U.S. 184, 187-88 (1964), overruled on other grounds by Coll. Sav.
Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666
(1999) (describing a statute that concerned "every common carrier"
as utilizing "all-embracing language" (emphasis added)). And, had
Congress done so, this dissent would not need to have been written
-- nor, I would hazard, would this appeal even have been taken.
But, instead, Congress chose to define that term
"governmental unit" much more cumbersomely, by using "general
words [that] follow specific words in a statutory enumeration."
Cir. City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001)
(emphasis added) (quoting 2A N. Singer, Sutherland on Statutes and
- 36 -
Statutory Construction § 47.17 (1991)).16 And, that leads me to
pause before signing on to the majority's Indian tribe-inclusive
reading as the only plausible one, because when Congress describes
a general class after first setting forth a more specific exemplary
list -- as Congress did in § 101(27) -- there is often good reason
to think that Congress included the list to make the general class
more selective than the words that describe that class might
otherwise suggest.
For example, the Supreme Court construed a provision in
the Federal Arbitration Act ("FAA") that excludes from its coverage
"contracts of employment of seamen, railroad employees, or any
other class of workers engaged in foreign or interstate commerce,"
9 U.S.C. § 1, not to include all "workers" that Congress could
have reached through the exercise of its commerce power. See Cir.
City Stores, Inc., 532 U.S. at 109, 114–15. The Court did so,
16To be sure, § 101(27) does define a term that, in turn, is
relied on to define the scope of an abrogation of sovereign
immunity that a different provision of the Code effects. But, I
do not see how we could conclude that it is clear and unequivocal
that Congress included the specific list here due to a special
concern about the need to use "magic words," see FAA v. Cooper,
566 U.S. 284, 291 (2012), such that Congress must be understood to
have included the list solely to address that concern and not to
illustrate the type of relationship to the United States that
Congress had in mind in defining the class to be not "any" or
"every government" but only "or other foreign or domestic
government." For, if that abrogation-based concern were the sole
reason for Congress's decision to include the list, then why did
Congress bother to list expressly a species of government that
does not possess sovereign immunity, "municipality", see Owen, 445
U.S. at 645–46 -- while not listing one that does, Indian tribe?
- 37 -
moreover, not only because it thought that the words "engaged in
interstate commerce" themselves were less than encompassing of the
full reach of Congress's commerce power over workers, id. at 118-
19, but also because the construction of those "general words" to
encompass that reach would "fail[] to give independent effect to
the statute's enumeration of the specific categories . . . which
precedes it," id. at 114.
The Court explained in that regard that "there would be
no need for Congress to use the phrases 'seamen' and 'railroad
employees' if those same classes of workers were subsumed within
the meaning of . . . the residual clause." Id. at 114; see also
Loughrin v. United States, 573 U.S. 351, 358 (2014) (describing
the "'cardinal principle' of interpretation that courts 'must give
effect, if possible, to every clause and word of a statute'"
(quoting Williams v. Taylor, 529 U.S. 362, 404 (2000))). Thus,
the Court concluded that -- at least absent a good reason to
conclude otherwise -- the "general words" there were better
construed to refer only to those "workers" that shared
characteristics that made them "similar in nature" to the two
specific categories of workers expressly listed. Cir. City Stores,
Inc., 532 U.S. at 114–15. And so, the Court held, in part for
that reason, that the class of "other workers engaged in interstate
commerce" included only "transportation workers" -- like seamen
and railroad workers -- and so not workers at commercial stores,
- 38 -
as they are not engaged in interstate commerce in that
"transportation"-related way. Id. at 109.
With that precedent in mind, I note that -- aside from
"foreign state[s]" -- the listed types of "government" in § 101(27)
share a characteristic beyond the fact that each of them operates
within the United States, insofar as that entity is understood to
be merely a geographic location on Earth. That shared
characteristic is that each of them is also an institutional
component of the United States, insofar as that entity is
understood not just as a physical location on a map but as a
governmental system that traces its origin to the United States
Constitution.
For that reason, it is plausible to me that Congress, by
using the words "domestic" and "foreign" to describe the general
class that follows the exemplary list, did not mean to include
within the definition of a "governmental unit" every "government"
on Earth, near or far. Instead, it is plausible to me that Congress
meant by using those terms only to include a "government" that can
trace its origins either to our federal constitutional system of
government (such that it is a "domestic government") or to that of
some "foreign state" (such that it is a "foreign government").
See domestic, Black's Law Dictionary (5th ed. 1979) (defining
"domestic" as "pertaining, belonging or relating to . . . the
place of birth, origin, creation, or transaction"); domestic,
- 39 -
Black's Law Dictionary (4th ed. 1968) (same); cf. Dep't of Lab. v.
Greenwich Collieries, 512 U.S. 267, 272, 275 (1994) (finding that
the "ordinary or natural meaning" of a statutory phrase was "the
meaning generally accepted in the legal community at the time of
enactment"); see also domestic, Webster's Third New International
Dictionary 671 (1961) (defining "domestic" to mean "belong[ing] or
occur[ring] within the sphere of authority or control").
Indeed, in my view, such a reading of § 101(27) draws
support from the fact that it would explain -- as the majority's
reading would not -- why Congress set forth a comprehensive and
detailed list of "government[s]," both "domestic" and "foreign,"
without also including Indian tribes on it. For, if Congress were
trying to encompass not all governments on Earth but only all the
components of the constitutional system of government that is the
United States and all those that are the components of the system
of government of "foreign state[s]," then there would be no reason
to include Indian tribes on that list. And that is so, because,
unlike the listed governmental types, Indian tribes neither
ratified the Constitution nor trace their origins to it. Nor do
they trace their origins to any "foreign" system of government in
the way that a "foreign state" does. Cf. Blatchford v. Native
Vill. of Noatak & Circle Vill., 501 U.S. 775, 782 (1991)
(explaining that while tribes are in a geographical-presence-sense
"domestic," "[t]he relevant difference between [tribes and other]
- 40 -
sovereigns . . . is not domesticity [in that presence-based
sense], but the role of each in the [Constitutional] convention");
Bay Mills Indian Cmty., 572 U.S. at 789-90 (noting that "it would
be absurd to suggest that the tribes -- at a conference to which
they were not even parties -- similarly ceded their immunity").
In positing that it is plausible that Congress had such
an intention in formulating this Code provision, I am hardly
ascribing to Congress an understanding of Indian tribes that is
novel. In fact, as the Lac du Flambeau Band of Lake Superior
Chippewa Indians here points out, Indian tribes have long been
understood to be sui generis precisely because they uniquely
possess attributes characteristic of "nations" without themselves
being "foreign state[s]." Bay Mills Indian Cmty., 572 U.S. at
805-06 (Sotomayor, J., concurring) (explaining that "[t]wo
centuries of jurisprudence . . . weigh against treating Tribes
like foreign visitors in American courts"); Cherokee Nation v.
Georgia, 30 U.S. 1, 13 (1831) (referring early on to Indian tribes
as "domestic dependent nations" (emphasis added)). In fact, in
accord with the understanding that Indian tribes are "marked by
peculiar and cardinal distinctions which exist nowhere else,"
Cherokee Nation, 30 U.S. at 16, the Court itself has continued to
emphasize that U.S. government "relations with the Indian tribes
have 'always been . . . anomalous . . . and of a complex
character,'" given that "the tribes remain quasi-sovereign nations
- 41 -
which, by government structure, culture, and source of sovereignty
are in many ways foreign to the constitutional institutions of the
federal and state governments." Santa Clara Pueblo, 436 U.S. at
71 (emphasis added) (quoting United States v. Kagama, 118 U.S. at
381); see also, Joshua Santangelo, Bankrupting Tribes: An
Examination of Tribal Sovereign Immunity as Reparation in the
Context of Section 106(a), 37 Emory Bankr. Dev. J. 325, 354 (noting
the various dimensions in which tribes differ from states). In
this salient respect, then, Indian tribes are not "similar in
nature" either to any "domestic government" that is listed in
§ 101(27) or to any "foreign state," as that provision uses that
term.
This narrower reading of "or other foreign or domestic
government" also would not empty that phrase of all content. The
phrase still would usefully pick up commissions and authorities
created by interstate compacts and their "foreign" counterparts,
as no other words in § 101(27) encompass any of them, and they
are, as a group, sufficiently difficult to categorize pithily that
it would be natural to encompass them through a residual clause of
the sort that follows an express list. For, as creatures of listed
"domestic government[s]," interstate hybrids do trace their
origins to the governmental system of the United States and not
(like Indian tribes) to a source of sovereignty that predates it.
- 42 -
In an attempt to show that this reading of the text is
implausible, the majority asserts that the word "domestic" cannot
connote "origin" unless it is being used to describe a product.
See Maj. Op. at 18. But, the dictionary that the majority cites
in support of that proposition says no such thing, see domestic,
Oxford English Dictionary Online (Mar. 2022 update), and that
definition is not from the time § 101(27) was enacted, see
Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020) (instructing courts
to "turn to the phrase's plain meaning at the time of enactment"
when trying to construe a statute's meaning). Moreover, both of
the definitions to which the majority points suggest that the word
"domestic" describes a relationship that is not merely
territorial. See Maj. Op. at 18 (contrasting the Oxford English
Dictionary's definition of "domestic" as "Indigenous; made at home
or in the country itself; native, home-grown, home-made," with its
alternative definition that the word means "[o]f or relating to
one's own country or nation; not foreign, internal, inland,
'home'"). Rather, those definitions, like the legal definition
cited to above, suggest that a government is "domestic" to a thing
if it has its origins in that thing. Compare domestic, Oxford
English Dictionary Online (Mar. 2022 update), with domestic,
Black's Law Dictionary (11th ed. 2019) (defining "domestic" as a
legal term to mean "[o]f, relating to, or involving one's own
country"). And, of course, an origins-based definition -- because
- 43 -
it need not be addressing a merely territorial tie -- could suggest
that all governments that have their "origins" in the United States
constitutional system would be "domestic" to the United States and
thus that, as the Band argues, an Indian tribe is not encompassed
by the definition because it is a nation in and of itself that
does not have its origins in the federal Constitution.17
17 The majority suggests that this reasoning could support a
reading of "domestic government" that would "refer to household
management." See Maj. Op. at 20. But, I do not see how that is
so, given that "other . . . domestic government" is a "general
term[] [that] follow[s] specific [terms]" such that the "general
term" is "limited . . . to matters similar to those specified."
Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 163 n.19
(2012). In other words, while I suppose the words "any other class
of workers engaged in . . . interstate commerce" could be
referring in some contexts to constitutional scholars of the
Commerce Clause, that observation in no way undermines a reading
of those words that would take them to be referring to
transportation workers in the specific context of 9 U.S.C. § 1.
And, that is precisely because those words follow the specific
list of classes of workers set forth in the provision. See Cir.
City Stores, Inc., 532 U.S. at 114–15. Thus, my suggestion that
the words "domestic government" in § 101(27) of the Code plausibly
may be read in context to be referring only to those governmental
entities that (unlike Indian tribes) are components of our
constitutional system of government is not undermined by the
majority’s observation that in some contexts those words also could
mean "household management." For, the statutory context here
plainly rules out that reading of them while it plausibly rules in
the one that I posit. Nor, I note, does the majority at any point
explain why that is not so, as it does not dispute either that
each of the expressly listed governmental entities in § 101(27)
that is not "foreign" traces its origins to the U.S. Constitution
in a way that no Indian tribe does, or that it is good interpretive
practice to construe a general term that follows an express list
in light of the special characteristics that are shared by the
items on that list.
- 44 -
For these reasons, therefore, I do not see how the
textual case can be made that the words "domestic government" must
be read to include Indian tribes. Nor is there any need to take
my word for it, because the notion that a "tribal government" is
plausibly understood to be neither a "domestic" nor a "foreign
government" is not a figment of my imagination. One need only
consult the Code of Federal Regulations to see that same
understanding laid out in official black and white. See 7 C.F.R
§ 205.2 (defining "Governmental entity" as: "domestic government,
tribal government, or foreign governmental subdivision . . . .").
Perhaps for this reason the majority offers what
are -- in essence -- non-textual reasons to read the text to be
clearer than it is. For example, the majority suggests that my
reading "proposes a radical new rule of construction," see Maj.
Op. at 17-18, and so must be rejected on grounds of novelty even
if it is otherwise plausible. But, in fact, the reading I am
positing relies on many of the same dictionary definitions that
the majority utilizes as well as traditional canons of statutory
interpretation, none of which are new or applied in novel ways.
Certainly, the majority would not suggest that Circuit
City Stores endorsed a radical new rule of construction that all
entities on a list must be understood to have a transportation
tie. It merely applied the established interpretive principle
that when expressly listed entities share a salient
- 45 -
characteristic, it makes sense to construe the general residual
phrase that follows to include only other entities that, though
not expressly listed, share that characteristic. I am doing
nothing different in focusing on the way in which the listed
entities in § 101(27) are like each other and then drawing on that
similarity to construe the residual phrase that provision
contains.
The majority also contends that the reading I am
proposing must be rejected because it was "never briefed by the
parties," see Maj. Op. at 18, and so must be deemed waived even if
it otherwise holds up. But, in fact, the Band argued, citing
Circuit City Stores, that a "word is known by the company it
keeps," such that the residual phrase does not encompass "every
single government that exists" but rather just those "governments
similar to the federal government, states, and foreign
governments." And, the Band argued, "Indian tribes are 'not a
foreign state' nor 'a domestic state,' but rather are 'marked by
peculiar and cardinal distinctions which exist nowhere else.'"
(quoting Cherokee Nation, 30 U.S. at 16). Thus, the arguments
that I am making are not materially different from those that the
Band advances.
The majority's final suggestion is that the reading of
§ 101(27) that I am positing is out of bounds because it depends
on there being a "magic words" requirement for the abrogation of
- 46 -
an Indian tribe's immunity from suit under the Code. See Maj. Op.
at 19-20. But, I do not see how that is so.18
In noting that the text at issue could be read to exclude
Indian tribes, I am not thereby "requir[ing]" Congress to use the
phrase "every government," as the majority contends. Rather,
Congress is free to use any number of different phrases to indicate
unambiguously its intent to abrogate an Indian tribe's
immunity -- "every government," "any government with sovereign
immunity," or "Indian tribes." There are no doubt others.
Congress cannot, however, abrogate tribal immunity with
the requisite degree of clarity by setting forth a specifically
enumerated list of governments in which each is unlike an Indian
tribe in the same way and then including a general phrase
thereafter that itself can plausibly be read to encompass only the
18When the Court articulated its disavowal of a "magic words"
test for abrogating sovereign immunity in FAA v. Cooper, 566 U.S.
284 (2012), it was confronted only with a question about whether
Congress intended to abrogate the United States's immunity from
suit and not whether it intended for the abrogation of immunity it
intended to effect for some governments to apply to the United
States. See id. at 291. Nor is Cooper unusual in that respect.
To my knowledge, the Court has never resolved a case concerning
abrogation of sovereign immunity that concerned the governments to
which the abrogation applied rather than whether abrogation was
intended for any government at all. But, even though the Court
has not spoken as to whether the "magic words" rule from Cooper
would apply when resolving an abrogation question like the one
before us, the Court has also given no indication that the "magic
words" rule would not apply in such a case. And so, I proceed on
the assumption that the bar to a "magic words" requirement does
apply.
- 47 -
kinds of governments that share the characteristic of the listed
entities -- a characteristic that Indian tribes lack. And, that
is because even if Congress need not use magic words to make clear
that its abrogation provision applies to Indian tribes, it must at
least use words that clearly and unequivocally refer to Indian
tribes if it wishes to make that abrogation provision apply to
them.
IV.
I acknowledge that, despite all these textual reasons to
doubt that § 101(27) encompasses Indian tribes, it is not obvious
that Congress would have wanted to abrogate the immunity of every
sovereign entitled to assert it but an Indian tribe. I also
recognize that a sovereign's retention of immunity under the Code
interferes with the Code's operation. But, insofar as the majority
means to suggest that we need not be guided by considerations of
statutory text alone, the evidence of legislative purpose also is
not as clearly and unequivocally on the side of reading § 101(27)
to include Indian tribes as the majority suggests.
The retention of immunity by Indian tribes would not
render the Code unworkable. The immunity would supply no defense
with respect to provisions of the Code (such as the one that
permits a bankruptcy court to order the discharge of debts) that
do not authorize in personam suits against Indian tribes. See
Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 450
- 48 -
(2004) ("A debtor does not seek monetary damages or any affirmative
relief from a State by seeking to discharge a debt; nor does he
subject an unwilling State to a coercive judicial
process. . . . We find no authority [to] . . . suggest[] [that] a
bankruptcy court's exercise of its in rem jurisdiction to discharge
a . . . debt would infringe state sovereignty."); id. at 448
("States, whether or not they choose to participate in the
proceeding, are bound by a bankruptcy court's discharge order no
less than other creditors."). Nor would an Indian tribe retain
immunity with respect to its filing of a proof of claim to collect
debts it is owed by an individual in bankruptcy proceedings. Cf.
C & L Enterprises, Inc., 532 U.S. at 418; Gardner v. New Jersey,
329 U.S. 565, 573–74 (1947) ("It is traditional bankruptcy law
that he who . . . offer[s] a proof of claim . . . must abide the
consequences of that procedure. If the claimant is a State, the
procedure of [filing a proof of claim] . . . is not transmitted
into a suit against the State because the court entertains
objections to the claim." (citation omitted)); In re White, 139
F.3d 1268 (9th Cir. 1998) (applying Gardner to an Indian tribe's
participation in a bankruptcy proceeding notwithstanding its
assertion of tribal immunity); cf. also In re Nat'l Cattle Cong.,
247 B.R. 259, 268–69 (Bankr. N.D. Iowa 2000) (same).
The Code also would still apply to Indian tribes,
notwithstanding their retention of immunity. See Kiowa Tribe of
- 49 -
Okla., 523 U.S. at 755 (explaining that "[t]here is a difference
between the right to demand compliance with [the] law[] and the
means available to enforce [it]"); In re Greektown Holdings, 917
F.3d at 461–62 (applying that principle to the Code). Thus, if an
Indian tribe were to try to sue to collect a debt in federal court
while the debtor was in bankruptcy proceedings under the Code, the
automatic stay still would appear to require the proceeding to be
dismissed, while equitable relief could also provide an avenue for
a debtor to enforce certain provisions of the Code against tribal
actors. Bay Mills Indian Cmty., 572 U.S. at 796 (emphasis
omitted).
To be sure, the Code does afford benefits to
"governmental units" that Indian tribes would be denied if
§ 101(27) were construed to leave them out. See, e.g., 11 U.S.C.
§ 523(a) (preventing certain types of debts owed to "governmental
units," such as taxes and restitution orders, from being discharged
via bankruptcy); id. § 362(b) (permitting "governmental unit[s]"
to engage in certain functions despite the automatic stay). But,
at the same time, that construction would have the potentially
salutary consequence of preserving the potential for tribal
businesses to take advantage of the Code's protections for debtors
-- a benefit that itself may be no small thing for Indian tribes.
See id. § 109 (permitting "person[s]" to file for bankruptcy under
Chapters 7 and 11 of the Code); id. § 101(41) (defining "person"
- 50 -
to include an "individual, partnership, and corporation, but does
not include [a] governmental unit"); Memphis Biofuels, LLC v.
Chickasaw Nation Indus., 585 F.3d 917, 921 (6th Cir. 2009) (finding
that a tribal business incorporated under § 17 of the Indian
Reorganization Act, 25 U.S.C. § 477, was immune from suit as an
arm of the tribe); see also Laura N. Coordes, Beyond the Bankruptcy
Code: A New Statutory Bankruptcy Regime for Tribal Debtors, 35
Emory Bankr. Dev. J. 363, 377–78 (2019) (explaining that tribal
corporations may be able to file for bankruptcy under Chapters 7
or 11 under the Code); R. Spencer Clift III, The Historical
Development of American Indian Tribes; Their Recent Dramatic
Commercial Advancement; and a Discussion of the Eligibility of
Indian Tribes Under the Bankruptcy Code and Related Matters, 27
Am. Indian L. Rev. 177, 224–33 (2007) (same); cf. Bay Mills Indian
Cmty., 572 U.S. at 810 (Sotomayor, J., concurring) (noting that
Tribe-owned "enterprises in some cases 'may be the only means by
which a tribe can raise revenues,' . . . due in large part to the
insuperable . . . barriers Tribes face in raising revenue through
more traditional means" (citation omitted)); Okla. Tax Comm'n, 498
U.S. at 510 (emphasizing Congress's long-standing, "'overriding
goal' of encouraging tribal self-sufficiency and economic
development" (quoting California v. Cabazon Band of Mission
Indians, 480 U.S. 202, 216 (1987))).
- 51 -
Thus, in addition to the textual reasons not to leap too
quickly to the conclusion that Congress defined "governmental
unit" to include Indian tribes, there are reasons rooted in
attention to legislative purpose for not doing so as well. Cf.
Santa Clara Pueblo, 436 U.S. at 64 ("Where Congress seeks to
promote dual objectives in a single statute, courts must be more
than usually hesitant to infer from its silence a cause of action
that, while serving one legislative purpose, will disserve the
other."). Indeed, insofar as legislative purpose is our concern,
it is worth recalling that federal bankruptcy law prior to the
Code's enactment in 1978 seemingly permitted tribal corporations
to file for bankruptcy, even though states and municipalities could
not. See Bankruptcy Act Amendments of 1938 ("Chandler Act"),
ch. 575, §§ 1(24), 1(29), 4, 52 Stat. 840, 841–42, 845 (1938). It
is worth recalling, too, that federal bankruptcy law at that time
also did not treat Indian tribes as governments entitled to
priority status for their taxes, even though the United States,
states, the District of Columbia, territories, or their
instrumentalities all were. See id. at §§ 1(29), 64(4), 52 Stat.
at 842, 874.
It is therefore at least somewhat puzzling -- if Congress
did intend for § 101(27) to include Indian tribes -- that the
legislative history to the Code does not suggest that it is making
- 52 -
any shift in their treatment. In fact, that legislative history
makes no relevant mention of Indian tribes at all.19
I do not mean to suggest by negative implication, though,
that we may rely on surmise about congressional purpose to find an
abrogation of a sovereign's immunity to be clear and unequivocal
when the relevant legislative text does not otherwise require us
19 None of the majority's examples in which the term "Indian"
or "domestic dependent nation" was used in the congressional debate
that occurred while the Code was being considered refer to the
treatment of Indian tribes under the Code. See, e.g., 123 Cong.
Rec. 35447 (Oct. 27, 1977) (statement of Rep. Cohen) (discussing
a complicated criminal case in Maine known as the "Indian
litigation" that demonstrated that district courts lacked the
capacity to manage bankruptcy litigation); 139 Cong. Rec. H8609-
03, H8612 (Oct. 28, 1993) (statement of Rep. Thomas) (using the
term during debate of the Lumbee Recognition Act); 124 Cong. Rec.
8380 (Apr. 3, 1978) (statement of Sen. Hatch) (using the term to
discuss the status of Indian tribes in the Constitution in the
context of discussing a proposed treaty regarding the Panama
Canal).
Moreover, the one Bankruptcy Court case that the majority
relies on to support the proposition that Congress understood an
Indian tribe to be a "domestic government" under § 101(27) at the
time of the 1994 amendments to § 106 and thus to have ratified
that view by amending § 106, In re Bohm's Inc., No. B-77-1142 PHX
VM, 1979 Bankr. LEXIS 895 (Bankr. D. Ariz. 1979), does not do so.
It treated the claim the San Carlos Apache Tribe filed to recoup
hunting and fishing fees owed to it as being effectively a claim
by a federal instrumentality, id. at *2, by reasoning that because
the Tribe was using powers delegated to it by the federal
government, it was as if the federal government itself was acting
when the Tribe levied those fees, id. at *9–10.
And, while I am aware of a pair of Bankruptcy Court cases
that do treat tribes as suable without their consent under the
Code, see In re Sandmar Corp., 12 B.R. 910 (Bankr. D.N.M. 1981);
In re Shape, 25 B.R. 356 (Bankr. D. Mont. 1982), each was decided
after the enactment of § 101(27) and neither analyzes it in other
than conclusory fashion.
- 53 -
to so conclude. In construing the pre-1994 version of § 106 in
Hoffman v. Connecticut Department of Income Maintenance, 492 U.S.
96 (1989), the Court made clear that we may not do so, as it
explained there that "attempts . . . to construe § 106 in light of
the policies underlying the Bankruptcy Code are . . . not helpful
in determining whether the command [that sovereign immunity be
abrogated only clearly and unequivocally] is satisfied," id. at
104; see also Nordic Village, Inc., 503 U.S. at 33 (expressly
relying on the reasoning in Hoffman's plurality opinion). Rather,
the Court emphasized, "congressional intent is unmistakably clear
in the language of the statute . . . [or] it is not, [such that
the clear and unequivocal standard] [is] not . . . satisfied."
Hoffman, 492 U.S. at 104.
It follows, in my view, that we have no choice but to
conclude that § 101(27) does not clearly and unequivocally include
Indian tribes, because, as I have explained, its text plausibly
may be read not to cover them. I note that, in accord with that
conclusion, the Court recently listed examples in which Congress
had cut back on tribal immunity in the commercial realm and, in
doing so, did not mention the Code, even though the Code would
seem to be the example par excellence of such an abrogation --
insofar as the Court had understood it to have brought one about.
See Kiowa Tribe of Okla., 523 U.S. at 758–59.
- 54 -
V.
"The special brand of sovereignty the tribes retain
-- both its nature and its extent -- rests in the hands of
Congress." Bay Mills Indian Cmty., 572 U.S. at 800. That means
that "it is fundamentally [Congress's] job, not ours, to determine
whether or how to limit tribal immunity." Id. Therefore, if my
construction of "governmental unit" is as antithetical to the
purposes of the Code as the majority contends, Congress must amend
it, just as Congress did after Hoffman. See also Bay Mills Indian
Cmty., 572 U.S. at 794 (cautioning that courts "do[] not revise
legislation . . . just because the text as written creates an
apparent anomaly" -- even in the context of anomalies arising from
a failure to abrogate tribal sovereign immunity).
That is not to say that it is costless for Congress to
have to do so. But, I do not see how we can spare Congress that
expense here. We are not permitted to anticipate that Congress
intends to abrogate tribal immunity any more than we are permitted
to anticipate that Congress intends to abrogate the immunity of
other sovereigns, whether a State or the United States. And, in
contrast to the clarity with which Congress plainly abrogated a
"core aspect of [the] sovereignty" of the United States and each
of the fifty states in § 101(27), it failed to make clear in that
same provision that it has given the kind of thoughtful attention
to the sovereignty of Indian tribes that it must before abrogating
- 55 -
their sovereign immunity from suit. Because I see no reason to
permit Congress to abrogate an Indian tribe's sovereign immunity
in terms less clear than it must use to abrogate the immunity of
other sovereigns that are more likely to find their interests
accounted for by that legislative body, I respectfully dissent.
- 56 -
Coughlin v. Lac du Flambeau Band of Lake Superior Chippewa Ind
Combined Opinion