concurring in the judgment only:
AER-Aerotron, Incorporated, a bankrupt contractor to the Department of Transportation of the State of Texas, sued Texas in the United States Bankruptcy Court for the Eastern District of North Carolina for $224,-000 allegedly due for equipment that AER-Aerotron delivered under its contract with Texas. Texas asserted Eleventh Amendment immunity from suit in federal court. The bankruptcy court and the district court held that Texas had waived its sovereign immunity by sending demand letters to AER-Aerotron with knowledge that it was a debtor in possession. The letters related to the inadequacy, of AER-Aerotron’s contractual performance. The bankruptcy court and the district court interpreted 11 U.S.C. § 106 to provide that such demand letters constituted a “proof of claim in the case” and therefore amounted to a waiver under § 106. *682That section, as amended in 1994, provides in relevant part:
(a) Notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section with respect to the following:
(1) [referring to this section 106]....
* * * * * *
(b) A governmental unit that has filed a proof of claim in the case is deemed to have waived sovereign immunity with respect to a claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which the claim of such governmental unit arose.
(Emphasis added).
The majority has today reversed the lower court’s ruling by holding that “a State’s transmission to a debtor of a written demand for payment of a claim, without more, does not constitute the ‘filing of a proof of claim in the case,’ as that term is used in § 106(b) of the Bankruptcy Reform Act of 1994.” Op. at 680. Based on that statutory interpretation, the majority concludes that Texas did not waive its sovereign immunity. Because of the outcome that the majority reaches through its statutory interpretation of § 106, it concludes that “we have no occasion to address the broader constitutional question” of whether the Eleventh Amendment bars this suit or bars Congress’ attempt to define a state’s waiver of sovereign immunity. Op. at 680-81.
While I would agree with the statutory interpretation placed on 11 U.S.C. § 106(b) by the majority, I conclude that we must address the Eleventh Amendment issue first because it determines our power as a court to make any statutory interpretation. And if we were to conclude that we have the power to construe the statute, we would still have to decide whether Congress had the power, under Article I, section 8, clause 4, of the Constitution, to enact a provision that defines when a State waives sovereign immunity before the federal bankruptcy courts.
I
In the bankruptcy court, in the district court, and on appeal before us, Texas has raised two interrelated threshold constitutional questions: (1) whether we have authority to reach the merits of a statutory interpretation when Texas contends that it has not consented to this suit filed in federal court and (2) whether Congress overstepped its power in purporting to abrogate Texas’ immunity under Article I, section 8, clause 4 of the Constitution.1 Because federal power to adjudicate against states is at issue, we cannot, as a matter of convenience, decide the statutory meaning of 11 U.S.C. § 106 in order not to reach the constitutional questions. Rather, we must first answer the constitutional questions to determine whether, in the face of such a challenge, we have the power to adjudicate matters beyond the questions of our power and Congress’ power.
II
The Eleventh Amendment is phrased to limit jurisdiction of the federal courts as follows: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. The Supreme Court has consistently interpreted the Eleventh Amendment to recognize that “it is inherent in the nature of [state] sovereignty not to be amenable to the suit of an individual without its consent.” Seminole Tribe of Florida v. Florida, — U.S. -, -, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252 (1996) (citations omitted). In Seminole Tribe, the Supreme Court held that the Eleventh Amendment prohibits Congress’ attempt to authorize suits by Indian tribes against the states. Id. The Court observed that “federal jurisdiction over suits against unconsenting states “was not contemplated by the Constitution when establishing the judicial power of the United States.’” Id. (quoting Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 507, 33 L.Ed. 842 (1890)). Accordingly, we must first address whether *683Texas waived the benefit of the constitutional limitation.
Moreover, if Seminole Tribe made anything clear, it is that Eleventh Amendment immunity is a function of a State’s sovereign constitutional status, not Congress’ Article I powers. See id. at -, 116 S.Ct. at 1131-32 (“The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon'federal jurisdiction”). Accordingly, Congress’ enactments under Article I are irrelevant to whether a state retains its Eleventh Amendment immunity because Congress lacks power to affect that immunity in the exercise of its Article I powers.2
Thus, by analyzing Texas’ immunity only in terms of Congress’ Article I enactments, I believe that the majority has committed the very error identified in Seminole Tribe. By analyzing the question as it has, the majority suggests that states are amenable to suits in federal courts when Congress, acting pursuant to its Article I bankruptcy power, deems it so. Congress, I respectfully suggest, lacks such power in our system of federalism.
Ill
Instead of interpreting an Article I enactment of Congress, I believe we must apply the constitutional doctrine of Eleventh Amendment waiver. To find a waiver of Eleventh Amendment' imimunity, “we require an unequivocal indication that the state intends to consent to federal jurisdiction that otherwise would be barred by the Eleventh Amendment.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 3145 n. 1, 87 L.Ed.2d 171 (1985). Since there is no such unequivocal indication here, I would agree with the majority that Texas has not waived its sovereign immunity.
In approaching the question without regard to 11 U.S.C. § 106, I do not mean to suggest that the statute incorrectly describes those actions which constitute a state’s waiver of sovereign immunity. But such actions constitute a waiver of immunity not because Congress in § 106 has said so. Seminole Tribe held that Congress’ Article I powers are irrelevant to an Eleventh Amendment waiver. Instead, a state’s actions waive immunity when such actions are independently sufficient under Eleventh Amendment doctrine. Thus, although 11 U.S.C. § 106 may restate the law of Eleventh Amendment waiver, it does not establish the law on the subject.
. Although 11 U.S.C. § 106(b) speaks of when a state is “deemed to have waived sovereign immunity,” § 106(a) says that state immunity is "abrogated ... to the extent set forth in this section [106].” (Emphasis added). Congress apparently believed that the "deemed waiver” of § 106(b) was the extent of abrogation under § 106(a).
. The Supreme Court affirmed Congress’ power, not involved here, to affect state immunity in federal court through the Fourteenth Amendment. See Seminole Tribe, - U.S. at -, 116 S.Ct. at 1128.