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.
No. 21-1153
United States Court of Appeals For the First Circuit
May 6, 2022
Barron, Chief Judge, Lynch, Circuit Judge, and Burroughs, District Judge.
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 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
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
I.
In July 2019, Coughlin took out a $1,100 payday loan from Lendgreen, a wholly owned subsidiary of the Band.1 Later that 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
To stop Lendgreen‘s collection efforts, Coughlin moved to enforce the automatic stay against Lendgreen and its corporate 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
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 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 with respect to” dozens of provisions of the Code, including the automatic stay. Congress enacted
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.
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
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
Were that not enough, Congress was also well aware when it enacted
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,
then, the phrase “domestic dependent nation” refers to a form of domestic government.
Thus, when Congress enacted
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
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
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
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. 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,
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
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 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 1978; 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 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, 553 U.S. at 589) (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 on magic words no less than requiring “tribes” to appear in the
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
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
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
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 other purposes. See, e.g.,
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 -
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 question regarding tribal immunity under the Code that is statutory rather than constitutional in nature.
The statutory question implicates two provisions of the Code:
I.
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.
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 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 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.
One possible answer is quite straightforward: Congress did not mention Indian tribes in
The majority rejects that straightforward answer. It holds that
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.”
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 because that reading
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
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
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 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
The majority contends in response that these types of entities are already encompassed within
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 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
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.
III.
The juxtaposition of “domestic” and “foreign” in
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
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
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, 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
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 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
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,”
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.
With that precedent in mind, I note that -- aside from “foreign state[s]” -- the listed types of “government” in
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, 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
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 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
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
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
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
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
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
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
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 (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 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
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
to so conclude. In construing the pre-1994 version of
It follows, in my view, that we have no choice but to conclude that
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).