INTRODUCTION
In this appeal, the Litigation Trustee seeks a reversal of the Bankruptcy Court's holding that the Appellees, the Sault Ste. Marie Tribe of Chippewa Indians ("the Tribe") and Kewadin Casinos Gaming Authority ("Kewadin Authority") (Appellees or collectively "the Tribe Defendants"), did not waive their sovereign immunity to the claims asserted in the Adversary Proceeding and dismissing them from the Adversary Proceeding. For the reasons that follow, the Court AFFIRMS the Bankruptcy Court and DISMISSES the Tribe Defendants from this Adversary Proceeding.
I. BACKGROUND
A. Procedural History of this Adversary Proceeding
On May 29, 2008, Greektown Holdings, LLC and certain affiliates (collectively the "Debtors"), commenced proceedings under Chapter 11 of the United States Bankruptcy Code, In re: Greektown Holdings, LLC, et al., Debtors (E. D. Mich. Bankr. No. 08-53104, ECF No. 1).
Shortly after the Adversary Proceeding was commenced, on June 25, 2010, the Tribe Defendants filed a motion to dismiss the MUFTA claims against it on the grounds of sovereign immunity. (Adv. Pro. ECF No. 8.) The parties stipulated to bifurcate the motion to dismiss to first have the Bankruptcy court decide the purely legal question of whether Congress, in Section 106(a) of the Bankruptcy Code, abrogated the Tribe's sovereign immunity and thereafter, if necessary, to decide whether the Tribe waived its sovereign immunity by participating in the Bankruptcy proceedings. The Bankruptcy Court heard oral argument on the Congressional abrogation issue on December 29, 2010, and took the matter under advisement.
While the issue of Congressional abrogation of sovereign immunity was still under advisement in the Bankruptcy Court, in 2012, the Tribe Defendants and the Litigation Trustee reached a settlement, filed a motion to have the settlement approved and requested that the Bankruptcy Court hold off issuing its ruling on the Tribe's motion to dismiss pending a decision on the Settlement Motion. This Court ultimately approved the Settlement Agreement, which contained a claims bar order that was an important aspect of the Settlement Agreement. (In re Greektown Holdings, LLC , Case No. 12-12340, ECF No. 10, Opinion and Order Granting Corrected Motion for Order Approving Settlement Agreement.)
The non-settling Defendants in the Adversary Proceeding, Maria Gatzaros, Ted Gatzaros, Dimitrios Papas and Viola Papas ("the Papas and Gatzaros Defendants"), appealed the Court's Order approving the Settlement Agreement to the Sixth Circuit, objecting to the inclusion of the claims bar order. (In re Greektown , No. 12-12340, ECF No. 33, Notice of Appeal.) The Sixth Circuit reversed and remanded with instructions to this Court to reconsider the propriety and breadth of the claims bar order. Papas v. Buchwald Capital Advisors LLC (In re Greektown Holdings, LLC) ,
*710On June 9, 2014, with settlement negotiations at a standstill, the Tribe Defendants renewed the 2010 motion to dismiss on the grounds of sovereign immunity. (Adv. Pro. ECF No. 453, Renewed and Supplemented Motion to Dismiss Adversary Proceeding Re: Sovereign Immunity.) The parties renewed their stipulation to have the Bankruptcy Court first determine whether Congress had abrogated the Tribe Defendant's sovereign immunity in section 106 of the Bankruptcy Code and, only if no congressional abrogation was found, to then determine whether the Tribe Defendants had waived sovereign immunity for purposes of this MUFTA proceeding. On August 13, 2014, the Bankruptcy Court issued its Opinion and Order Denying the Tribe's Renewed and Supplemented Motion, concluding that "Congress sufficiently, clearly, and unequivocally intended to abrogate [the Tribe's] sovereign immunity in [ section 106 of the Bankruptcy Code ]." (Adv. Pro. ECF No. 474 at 36, August 12, 2014 Opinion and Order.) The Tribe Defendants appealed Bankruptcy Judge Walter Shapero's ruling and this Court reversed, holding that Congress did not unequivocally express its intent to abrogate sovereign immunity of Indian tribes in section 106 of the Bankruptcy Code. In re Greektown Holdings, LLC ,
On September 29, 2016, the Bankruptcy Court issued its Opinion and Order finding that the Tribe had not waived its sovereign immunity and granting the Tribe's motion to dismiss for lack of jurisdiction on the basis of sovereign immunity. In re Greektown Holdings, LLC ,
B. The Bankruptcy Court's September 29, 2016 Opinion and Order
The Bankruptcy Court concluded that Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc. ,
Judge Shapero further held, rejecting the Litigation Trustee's alternative argument that the Tribe Defendants waived sovereign immunity by participating in the underlying Bankruptcy proceeding, that the "Tribe Defendants' participation in the claims allowance and confirmation process has not, as a matter of law, constituted a waiver of sovereign immunity that is broad enough to encompass this entire adversary proceeding against them, which seeks to recover alleged fraudulent transfers."
C. Factual Background as Relevant to This Appeal
It is undisputed, as alleged in the Complaint in this Adversary Proceeding, that the Tribe Defendants have appeared and participated in the claims allowance process in the underlying Greektown Bankruptcy proceedings (Bankr. Case No. 08-53104) by filing certain proofs of claim (see, e.g. , Bankr. ECF Nos. 263, 280, 282, 325, 2314) and by filing appearances and objections in that proceeding (see, e.g. , Bankr. ECF Nos. 706, 751,1404, 1654, 1990, 2236).
Also undisputed is the fact that the Tribe's governing Tribal Code (which applies equally to the Kewadin Gaming Authority, an instrumentality of the Tribe established pursuant to the Gaming Authority Charter and defined as a "Tribal Entity" pursuant to the Tribal Code) expressly defines the limited conditions under which the Tribe Defendants may waive their sovereign immunity. (Adv. Pro. ECF No. 649-1, Ex. A, Affidavit of Candace Blocher, Exs. B, C, Chapters 44 and 94 respectively of the Tribal Code.)
It is also undisputed that: (1) there is no Board resolution waiving the Tribe Defendants' tribal immunity and consenting to suit on the claims asserted in this MUFTA Adversary Proceeding; and (2) there is no contract containing a provision purporting to waive the Tribe Defendants' tribal immunity as to the claims asserted in this MUFTA Adversary Proceeding.
In addition to these undisputed facts, the Litigation Trustee asserts that certain conduct of the Tribe Defendants establishes that the Tribe Defendants exerted complete dominion and control of the Debtors, used the Debtors as their agents in connection with the fraudulent transfers alleged in this Adversary Proceeding and directed the Debtors to initiate the underlying Bankruptcy proceedings in order to forestall an action by the Michigan Gaming Control Board ("MGCB") against the Tribe Defendants, thereby becoming one with the Debtors under principles of agency and alter ego/piercing the corporate veil. While the Tribe Defendants do not concede the truth of these allegations they do accept them, as did Judge Shapero, solely for purposes of resolving the legal waiver issues presented in this appeal. Judge Shapero accepted "as true," and so does this Court in reviewing his Opinion and Order, that "the Tribe Defendants' pre-petition and post-petition conduct as relates to the Debtors amounts to pervasive dominion and control and went well beyond filing proofs of claim or other litigation conduct." ( In re Greektown Holdings ,
II. JURISDICTION AND STANDARD OF REVIEW
The parties do not dispute this Court's jurisdiction to entertain the Litigation Trustee's appeal. Under
The Tribe moves under Fed. R. Civ. P. 12(b)(1) to dismiss the Complaint in the Adversary Proceeding for lack of subject matter jurisdiction based on sovereign immunity. See Memphis Biofuels ,
Challenges to subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)"come in two varieties: a facial attack or a factual attack." Gentek Bldg. Prod., Inc. v. Sherwin-Williams Co. ,
III. ANALYSIS
Counsel for the Litigation Trustee succinctly stated at the April 10, 2017 hearing the "issue of first impression" presented in this appeal: whether principles of alter-ego/piercing the corporate veil and/or agency can be applied to find a waiver by conduct of an Indian tribe's sovereign immunity. The Litigation Trustee submits that the Debtors in the underlying Greektown bankruptcy proceedings were the "mere instrumentalities" of the Tribe Defendants, and were "dominated and controlled" by the Tribe Defendants both before and after the bankruptcy filings and used by the Tribe Defendants to initiate the Greektown bankruptcy proceedings to avoid an action by the MGCB to force the Tribe Defendants to relinquish their interest in Greektown Casino. The Tribe Defendants, and Judge Shapero, accepted as true, solely for purposes of determining the legal issue of whether the Tribe Defendants could be found to have waived their tribal immunity under an alter ego or agency theory, the facts and inferences alleged by the Litigation Trustee regarding the Tribe Defendants' domination and control over the Debtors. The Tribe Defendants submit that, as a matter of law, even assuming the veracity of the allegations that they "dominated and controlled" the Debtors, they cannot be deemed to have waived their sovereign immunity based upon such conduct.
A. Memphis Biofuels Applies Here and Supports Judge Shapero's Finding of No Waiver
"As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity."
*714Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. ,
This result may seem unfair, but that is the reality of sovereign immunity: "[I]mmunity can harm those who ... are dealing with a tribe.... These considerations might suggest a need to abrogate tribal immunity, [but] ... we defer to the role Congress may wish to exercise in this important judgment.
As Judge Shapero correctly noted, in this case it is undisputed that the Tribe Defendants' Tribal Code and Charter required a narrowly tailored board resolution specifically waiving sovereign immunity for an identified limited purpose. It is also undisputed that no such board resolutions were ever adopted.
This would seem to end the matter given the clear line adopted by the Sixth Circuit in Memphis Biofuels . However, the Litigation Trustee suggests Memphis Biofuels applies only to contractual waivers of sovereign immunity in the absence of a duly authorized tribal board resolution. (ECF No. 9, Appellant's Br. 21.) The Litigation Trustee argues that in Memphis Biofuels , the Sixth Circuit was simply unwilling to apply equitable quasi-contractual remedies where the parties were fully capable of obtaining the required tribal resolution before proceeding with a contractual agreement. (Id. at 25-27.) Here by contrast, the Litigation Trustee urges, where the MUFTA claims sound in tort, not contract, the Plaintiff could not possibly obtain and perfect tribal board resolution, and " Memphis Biofuels is simply inapplicable." (Id. at 27.) The Court disagrees.
Importantly, the Litigation Trustee has not cited a single case that makes this contract/tort distinction in analyzing a waiver of the sovereign immunity of an Indian tribe. Memphis Biofuels makes no such distinction, nor do the cases relied upon by the Sixth Circuit in that case *715which also broadly hold that a waiver of tribal sovereign immunity must be clear and unequivocal and cannot be implied from conduct. For example, in Sanderlin v. Seminole Tribe of Florida ,
The Sixth Circuit in Memphis Biofuels , like the Eleventh Circuit in Sanderlin , expressly declined to apply equitable doctrines such as apparent authority to find a waiver of tribal of immunity and adhered instead to Supreme Court precedent dictating that tribal sovereign immunity cannot be waived (and particularly in the face of a tribal charter that specifically describes the means by which the tribe's immunity can be waived) without clear and express language effecting that waiver. Although Memphis Biofuels was a case sounding in contract, not tort, the Sixth Circuit did not mention and therefore gave no import to such a distinction. Nor did the cases on which the Sixth Circuit relied in Memphis Biofuels , similarly rejecting such implied waiver, suggest the significance of such a distinction.
In Furry v. Miccosukee Tribe of Indians of Florida ,
Also without merit is Furry's claim that the Miccosukee Tribe waived its immunity from private tort actions by applying for a state liquor license. As we have recognized on many occasions, "[t]he Supreme Court has made it plain that waivers of tribal sovereign immunity cannot be implied on the basis of a tribe's actions, but must be unequivocally expressed." Sanderlin [v. Seminole Tribe of Florida ,] at 1286 [ (11th Cir. 2001) ] (quoting [Florida v.] Seminole Tribe [of Fla.] , 181 F.3d [1237] at 1243 [ (11th Cir. 1999) ] ); see Santa Clara Pueblo [v. Martinez] , 436 U.S. [49] at 58 [ 243 F.3d 1282 , 98 S.Ct. 1670 ] [ (1978) ] (noting that waivers of sovereign immunity 'cannot be implied but must be unequivocally expressed' ... a contrary conclusion would be 'no more than a misuse of the word 'express,' defined as '[m]anifested by direct and *716appropriate language, as distinguished from that which is inferred by conduct.') 56 L.Ed.2d 106
The Litigation Trustee fails to support its contract/tort distinction with any persuasive authority and admits that it can point to no "direct and appropriate [waiver] language," as distinguished from conduct, in this case. A tribal board resolution waiving the Tribe Defendants' immunity to suit based on the claims asserted in this MUFTA Adversary Proceeding was required by the Tribe Defendants' Tribal Code and one was not obtained. The Litigation Trustee offers no persuasive authority for adopting a bright-line rule distinguishing cases sounding in contract from cases sounding in tort when analyzing a waiver of tribal immunity. This Court is cognizant of the fact that continued adherence to the extreme breadth of an Indian tribe's sovereign immunity has been questioned, both by the Supreme Court and the Sixth Circuit and other courts interpreting Supreme Court mandate. As the Sixth Circuit remarked in finding no waiver in Memphis Biofuels : "This result may seem unfair, but that is the reality of sovereign immunity: '[I]mmunity can harm those who ... are dealing with a tribe.... These considerations might suggest a need to abrogate tribal immunity, [but] ... we defer to the role Congress my wish to exercise in this important judgment.' " Memphis Biofuels ,
Cobbling together a new exception to tribal immunity would directly conflict with the Supreme Court's straightforward doctrinal statement, repeatedly reiterated in the holdings of this Circuit, that an Indian tribe is subject to suit in state or federal court "only where Congress has authorized the suit or the tribe has waived its immunity." ... Waiver ... occurs when the tribe itself consents to the jurisdiction of the state or federal courts, through for example, a provision in a commercial contract. Moreover, both abrogation and waiver require the use of express and unmistakably clear language by either Congress or the tribe....
* * *
The doctrine of tribal sovereign immunity may well be anachronistic and overbroad in its application, especially when applied to shield from suit even the most sophisticated enterprises of Indian tribes, including commercial activities-such as the sale of alcohol-that have obvious and substantial impacts on non-tribal parties. But it remains the law of the land until Congress or the Supreme Court tells us otherwise.
B. Even Assuming a Limited "Waiver by Litigation Conduct" Has Been Recognized and Applied to Indian Tribes, the Only Litigation Conduct Attributable to the Tribe Defendants Here Would Not Support a Finding of Waiver With Respect to the Claims Asserted in This MUFTA Adversary Proceeding.
The Litigation Trustee insists that Memphis Biofuels cannot stand for the *717hard and fast proposition proffered by the Tribe Defendants, i.e. that only a duly adopted board resolution (where one is required by the tribal charter) will be sufficient to effect a waiver of tribal sovereign immunity, in light of Supreme Court precedent recognizing a limited waiver of sovereign immunity based on "litigation conduct." The Litigation Trustee argues that the Tribe Defendants have waived their sovereign immunity to the claims asserted against them in this MUFTA adversary proceeding, by their affirmative conduct in filing proofs of claim, appearances, and objections in the underlying bankruptcy proceeding and by operating as the alter ego of the Debtors and causing the Debtors to file the underlying bankruptcy petition. The Court disagrees.
1. Judge Shapero correctly concluded that "[t]he Tribe Defendants' participation in the claims allowance and confirmation processes has not, as a matter of law, constituted a waiver of sovereign immunity that is broad enough to encompass this entire adversary proceeding against them, which seeks to recover alleged fraudulent transfers."
The Litigation Trustee asserts that, like States, the Tribe waives its sovereign immunity when it takes the affirmative step of filing a claim (here proofs of claim in the bankruptcy proceeding) in court. There is ample support for the Litigation Trustee's assertion that a State may waive its sovereign immunity when it files a proof of claim in a bankruptcy proceeding. Gardner v. New Jersey ,
The Tribe asserts that the waiver by litigation conduct rule, which the Tribe acknowledges has been applied to defeat a State's assertion of Eleventh Amendment sovereign immunity in certain limited circumstances, is wholly inapplicable to Indian Tribes. The Tribe relies on Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma ,
*718nor to claims of a different form or nature than that sought by it as plaintiff.").
Thus, even assuming that the Tribe Defendants could be held subject to the "waiver by litigation conduct" rule based upon their filing proofs of claim, appearance, and objections (each of which expressly denied waiver and reserved the Tribe Defendants' rights to assert the defense of sovereign immunity) in the underlying bankruptcy proceeding, the law is clear that such waiver would be limited to adjudication of the matters raised by its proofs of claim.
The Litigation Trustee does not appear to disagree with this limiting principle, conceding at the hearing before Judge Shapero the following:
Where a tribe files a simple proof of claim we would agree. As a general rule the filing of the proof of claim, or even initiation of an adversary proceeding is a limited waiver of immunity and only with respect to that claim or that-the affirmative allegations alleged by the tribe in the adversary proceeding, not counter claims itself. As I said before, may be set off or recoupment claims.
(Bankr. ECF No. 742, Transcript of January 14, 2016 Hearing on Tribe Defendants' Motion to Dismiss at 24:22-25:3.)
Thus, it is agreed that any limited waiver that arguably would flow from the Tribe Defendants' actual conduct/participation in the underlying Bankruptcy proceeding would not encompass a waiver of immunity to the claims asserted in this Adversary Proceeding. Accordingly, the Litigation Trustee is forced to rely on the conduct of the Debtors, which brings us to the heart of this appeal. Counsel for the Litigation Trustee explained at the hearing before Judge Shapero that
[g]enerally the filing of a proof of claim in a bankruptcy case waives immunity only with respect to the claims that arise from that proof of claim.... And the tribe Defendant[s] filed a proof of claim and the application for an administrative expense and-and so they put these in issue[ ].
But as we said back in 2010 and have consistently said, this case is not simply about the tribe defendants' filed proof of claim or their application for rounds [sic] of administrative expense claim. We have always asserted that the tribe defendants' pervasive involvement in the events leading up to and after the bankruptcy filings go beyond the simple act of filing proofs of claim.... It's the filing of the bankruptcies themselves. The events leading up to that absolutely. But the filing of the case itself, not just in the proof of claim, but the filing of the overarching umbrella that is this bankruptcy case.
(Bankr. ECF No. 742, 1/14/16 Hr'g Tr. 22:19-23:5; 23:25-24:3.)
Of course the Tribe Defendants are not among the Debtors in the underlying bankruptcy proceedings; the Tribe Defendants did not initiate "the overarching umbrella that is this bankruptcy case." And so, to even proceed on the theory that filing the "overarching" bankruptcy case would amount to a waiver as to these MUFTA claims under the limited doctrine of "waiver by litigation" discussed in the cases cited supra , the Litigation Trustee is forced to rely on equitable principles of alter-ego/veil piercing and/or agency to attribute the conduct of the Debtors to the Tribe Defendants:
The-the conduct of the debtors should be applied to the tribe defendants.... [B]y filing the case [the Tribe Defendants] have essentially embraced all of the actions that can be brought under that case, that's right.... [I]f they're willing to stipulate to that, you know, we'll ride that-that's-we'll *719ride that horse. I don't think we need the alter ego or piercing the corporate veil issues.... But if the tribe is unwilling to stipulate that they initiated the bankruptcy cases, we have to establish that conduct in an alternative way. And that is by establishing the debtors were the alter ego of the tribe defendants or that the defendants-or the debtors' corporate veil should be pierced. Because then for all intents and purposes the tribe is the debtor. The conduct of the debtor is the conduct of the tribe, it's one. It's not implicit, it's not by implication, it is their conduct.
(Bankr. ECF No. 742, 1/14/16 Hr'g Tr. 23:19-21, 26:11-27:2.)
2. No court has ever applied the equitable doctrine of alter-ego/veil piercing to find a waiver of an Indian tribe's sovereign immunity and Supreme Court precedent precludes this Court from creating such a doctrine which necessarily finds an implied waiver by conduct.
Success on this theory requires a finding that the Tribe Defendants' conduct in allegedly controlling the Debtors and causing the Debtors to initiate the underlying bankruptcy proceedings amounts to a waiver of the Tribe Defendants' sovereign immunity to the fraudulent transfer claims at issue in this Adversary Proceeding. The Litigation Trustee would like the Court to reach this finding of waiver through two distinct analytical steps: first, find that the Tribe Defendants exerted such dominion and control over the Debtors that the conduct of the Debtors could be attributed to the Tribe Defendants under equitable principles of agency/alter-ego/veil piercing (the Tribe Defendants concede this for purposes of this appeal), and second, find that because the two are one, the Tribe Defendants did in fact file the underlying bankruptcy proceedings, thereby waiving their sovereign immunity as to all claims (including the avoidance claims alleged in this Adversary Proceeding) asserted as part of those underlying proceedings. The Litigation Trustee submits that if "Plaintiff were successful in establishing that the Debtors were the alter egos of the Tribe Defendants such that their respective corporate veils should be pierced, the Tribe Defendants' sovereign immunity is waived by operation of law, not by implication." (Appellant's Br. 31.)
But even assuming without deciding that filing the underlying bankruptcy proceeding would be sufficient affirmative conduct on the part of the Tribe Defendants to clearly and unequivocally express their intent to waive their sovereign immunity to the fraudulent transfer claims at issue in this Adversary Proceeding (a claim that the Tribe Defendants contest), the Court must necessarily apply an equitable doctrine attributing legal significance to the Tribe Defendants' alleged conduct in controlling the Debtors, and then rely on that imputed conduct, to conclude that the Tribe Defendants unequivocally and clearly expressed their desire to waive their sovereign immunity to the claims asserted against them in this Adversary Proceeding. In urging the Court to adopt this admittedly unprecedented approach to waiver of sovereign tribal immunity, the Litigation Trustee relies principally on three cases: Warburton/Buttner v. Superior Court of San Diego ,
*720Private Solutions is easily disposed of as persuasive here because that case simply addressed the issue, admittedly not present here, of whether the defendant limited liability company was an arm of the tribe and therefore able to enjoy the tribe's sovereign immunity.
United States ex rel. Morgan Bldgs. & Spas, Inc. v. Iowa Tribe of Oklahoma is similarly unpersuasive as the issue there was whether a tribal entity that was the economic subordinate of another tribal entity could waive the sovereign immunity of its "parent" entity by waiving its own sovereign immunity. The court held that a waiver by a subordinate economic entity does not operate as a waiver of the sovereign immunity of the tribe.
Warburton merits some discussion given some factual similarities to Memphis Biofuels. As the Litigation Trustee states in its principal brief on appeal, the court in Warburton "considered an issue identical to the issue presented in Memphis Biofuels ... namely the effectiveness of a contractual waiver of sovereign immunity in the absence of a formal tribal resolution." (ECF No. 9, Appellant's Br. 31-32.) In Warburton , an agreement between Warburton and Defendant FNC, LLC (a limited liability company formed under the laws of Delaware that was 50%-and later 100%-owned by Tunica-Biloxi tribe), contained a clause waiving the sovereign immunity of the tribe in any action brought by Warburton against FNC.
*721There are certainly facts that distinguish Warburton from his case. But the most significant, and dispositive, problem with the Litigation Trustee's reliance on Warburton is that the Warburton court reached a result, i.e. that the plaintiff was entitled to discovery on an alter ego theory of liability against the tribe "despite the admitted lack of a formal resolution," (see
"The alter ego doctrine is equitable in nature." Bucyrus-Erie Co. v. Gen'l Pdcts. Corp. ,
3. The FSIA cases do not provide a basis for finding a waiver of tribal sovereign immunity.
In a final attempt to apply alter-ego/veil piercing concepts to deny the Tribe Defendants immunity here, the Litigation Trustee *722relies on cases in which federal courts have applied alter-ego theories to find waiver of immunity by a foreign sovereign under the Foreign Sovereign Immunities Act ("FSIA"). See First Nat'l City Bank v. Banco Para El Comercio Exterior De Cuba ,
IV. CONCLUSION
As the Litigation Trustee concedes, this appeal presents an issue of first impression as neither the parties nor the Court has unearthed a case in which a court has applied the equitable doctrines of alter-ego/veil piercing and/or agency to find that an Indian tribe waived it sovereign immunity. In the absence of a different directive from Congress or the Supreme Court or the Sixth Circuit limiting the breadth of tribal immunity, this Court is constrained to reject the Litigation Trustee's novel theory of implied waiver. The touchstone of the theory is the alleged conduct of the Tribe Defendants in controlling the Debtors and allegedly forcing the Debtors to initiate the underlying bankruptcy proceedings. This conduct, regardless of how the Litigation Trustee spins the theory, is the sole basis for implying a waiver that was not expressed through the required formal board resolution unequivocally consenting to suit on these MUFTA claims.
There is no evidence in this case of clear express language, unequivocally stating the Tribe Defendants' intent to consent to the filing of these MUFTA claims against them. It is difficult to see how, in light of the admonition that any waiver of tribal sovereign immunity "cannot be implied and must be unequivocally expressed," Santa Clara Pueblo ,
For the foregoing reasons, the Court AFFIRMS the September 29, 2016 Opinion and Order of the Bankruptcy Court GRANTING the Tribe Defendants' Motion to Dismiss and DISMISSING the Tribe Defendants WITH PREJUDICE from the Adversary Proceeding.
IT IS SO ORDERED.
Notes
The Debtors in the jointly administered cases are Greektown Holdings, L.L.C. ("Holdings"); Greektown Casino, L.L.C. ("Greektown Casino"); Kewadin Greektown Casino ("Kewadin"); Monroe Partners, L.L.C. ("Monroe"); Greektown Holdings II, Inc. ("Holdings II"); Contract Builders Corporation ("Builders"); Realty Equity Company Inc. ("Realty"); and Trappers GC Partner, LLC ("Trappers").
By Stipulation dated August 9, 2012 (and approved by Consent Order dated August 14, 2010) the Defendants agreed that Buchwald Capital Advisors LLC ("Buchwald"), in its capacity as the Litigation Trustee of the Greektown Litigation Trust and in its capacity as the Trustee of the Greektown General Unsecured Creditors Distribution Fund Trust, replace the Official Committee of Unsecured Creditors of Greektown Holdings, LLC (the "Committee") as Plaintiff in this Adversary Proceedings. (Bankr. ECF. No. 3359, p. 3 ¶ 8.) When referring to docket entries in the underlying Bankruptcy Proceeding, (E. D. Mich. Bankr. No. 08-53104), the Court will use the reference "Bankr. ECF No. ___."
When referring to docket entries in the MUFTA Adversary Proceeding, (Adv. Pro. No. 10-05712), the Court will use the reference "Adv. Pro. ECF No. ___."
When referring to docket entries in the underlying Greektown bankruptcy case, (Bankr. No. 08-53104), the Court will use the reference "Bankr. ECF No. ___."
The Chapter of the Tribal Code directly addressing waiver of tribal immunity in commercial transactions delineates the characteristics that define a "Tribal Entity," and expressly provides that "[f]or purposes of this Chapter, corporations, partnerships, limited liability companies, or similar entities formed under the laws of any State shall not be Tribal entities; provided, that this provision shall not affect the sovereign immunity of the Tribe with regard to any such State entity." (Adv. Pro. ECF No. 649-6, Tribal Code, Chapter 44, Section 44.103.)