Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin

ANALYZING THE TEXT OF THE BANKRUPTCY CODE TO DETERMINE CONGRESS’S INTENT TO INCLUDE INDIGENOUS TRIBES

The Band argues that the Bankruptcy Code fails to unequivocally express Congress’s intent to abrogate the sovereign immunity of Indigenous tribes. Brief for Petitioners, Lac du Flambeau Band of Lake Superior Chippewa Indians et al. (the “Band”) at 22. The Band asserts that Congress could have “easily” referred expressly to Indigenous tribes in the Code but did not. Id. at 22. Thus, the Band claims that the “most natural reading” of the Code excludes Indigenous tribes. Id. at 23. According to the Band, the Code’s definition of governmental units comprises three categories: specifically identified units, their departments, agencies, and instrumentalities, and “other foreign or domestic governments.” Id. The Band argues that tribal nations are “neither foreign nor domestic” and thus do not fall under any of the definition’s categories. Id. at 33.

The Band next posits that the intent to abrogate sovereign immunity cannot be implied, and that all ambiguities should be “construed in favor of immunity.” Id. at 20. The Band contends that a reasonable alternative interpretation is enough to show both that ambiguity exists and also a lack of clear Congressional intent to abrogate sovereign immunity. Id. at 27. Thus, the Band posits that a reasonable interpretation of the Code is that Congress failed to expressly mention Indigenous tribes because Congress intended to exclude them. Id. The Band also maintains that “other foreign and domestic governments” could alternatively reasonably refer to commissions created through interstate compacts and authorities, such as the Washington Metropolitan Area Transit Authority. Id. at 40.

Finally, the Band disagrees with the First Circuit’s reasoning that Indigenous tribes are 1) governments and 2) domestic, and thus would be included in “other…domestic governments.” Id. at 30. The Band criticizes the First Circuit’s use of syllogistic reasoning to interpret single words in a compound phrase, contending that dictionary definitions of single words may not capture the compound meaning of the words. Moreover, even if the definitions capture the correct meaning, the Band asserts that dictionary definitions are not an unequivocally clear expression of Congressional intent. Id. at 31. In sum, the Band argues that Congress’s “conspicuous omission” of Indigenous tribes in the language of the statute shows the lack of intent to include Indigenous tribes within the scope of the statute. Id. at 27.

In contrast, Brian W. Coughlin argues that the Code has clear language that supports abrogating the sovereign immunity of Indigenous tribes. Brief for Respondent, Brian W. Coughlin at 15. Coughlin asserts that the ordinary meaning of “other…domestic governments” includes Indigenous tribes. Brief for Respondent at 16. First, Coughlin argues that Indigenous tribes have the authority to carry out government functions, as shown by their powers to legislate, tax, execute and administer laws as well as punish offenders, and to create courts with binding authority. Id. at 17. Second, Coughlin contends that Indigenous tribes are domestic governments because, according to the ordinary meaning of “government,” they belong within the “sphere of authority, “control,” “fabric,” or “boundaries” of a nation or sovereign state and are “subject to the plenary power of Congress. Id. at 20–21. According to Coughlin, Indigenous tribes are a part of and within the jurisdictional limits of the United States and, thus are domestic governments. Id. at 21.

Moreover, Coughlin claims the language of Section 101(27) of the Code clearly shows Congress’s intent to include Indigenous tribes and depart from the “baseline of tribal immunity.” Id. at 14-15. Coughlin posits that the pairing of “foreign or domestic” in the phrase “other foreign or domestic governments” is meant to be read expansively and “broadens…the meaning of the phrase.” Id. at 23. Coughlin likens this to language such as “day or night” and “for richer or poorer,” which Coughlin argues is not meant to make exclusive categories. Id. Instead, Coughlin asserts this language reflects Congress’s intent for bankruptcy courts to treat all governments as governmental units, irrespective of whether they are subject to the authority of or within the U.S. Id.

Coughlin also claims that the Band failed to show the statutory language was unclear. Id. at 32. Coughlin maintains that there is no requirement for magic words nor explicit reference to “tribes” or tribal sovereign immunity. Id. at 32–33. According to Coughlin, broad language does not mean ambiguity; here, ordinary meaning supplies the necessary clarity. Id. at 39, 44.

DETERMINING WHETHER HISTORICAL CONTEXT SUPPORTS THE ABROGATION OF SOVEREIGN IMMUNITY FOR INDIGENOUS TRIBES

The Band asserts that historical context does not support the abrogation of sovereign immunity for Indigenous tribes. Brief for Petitioners at 43. The Band argues that Indigenous tribes, in other statutes, are explicitly mentioned alongside the entities enumerated in Section 101(27) of the Code. Id. at 23. For example, the Band refers to the Resource Conservation and Recovery Act (“RCRA”), the Safe Drinking Water Act (“SDWA”), the Clean Water Act (“CWA), the Biomass Energy and Alcohol Fuels Act (“BEAFA”), and the Animal Health Protection Act (“AHPA”). Id. The Band argues that, although “magic words” are not required, Congress’s past practice shows a history of explicitly referencing Indigenous tribes in other codes. Id. at 27. Thus, the Band asserts it is “exceedingly odd” that Congress chose a “different and more convoluted method of achieving the same result in the Bankruptcy Code.” Id. at 28. Moreover, the Band argues that the Supreme Court has recognized four sovereigns: foreign nations, the federal government, state governments, and the Indigenous tribes, with the caveat of quasi-sovereign immunity for Indigenous tribes. Id. The Band also contends that appellate courts have “(nearly) unbroken acceptance” of finding no abrogation of sovereign immunity without explicit reference to Indigenous tribes. Id. at 26. According to the Band, Congress legislates against the “backdrop” of the clear statement rule, and thus, Congress’s failure to explicitly refer to Indigenous tribes shows a lack of clear intent. Id. The Band posits that Congress was aware of the “importance of clarity” in bankruptcy proceedings because it enacted the current version of the Code to clarify whether federal and state sovereign immunity was abrogated against specific monetary claims. Id. at 27.

The Band disagrees with the First Circuit’s reliance on the 1979 Bankruptcy Court decision In re Bohm’s, which the First Circuit found evinced a “clear” awareness that tribes were governmental units. Id. at 43. The Band maintains that, as a single decision, In re Bohm’s does not “represent judicial consensus.” Id. at 43. Moreover, the decision applies the pre-1978 Bankruptcy Code and “not any practice…that would have informed Congress’s understanding in 1994.” Id. In addition, the Band disagrees with the lower court’s use of congressional floor statements. Id. at 45. The Band calls floor statements the “least illuminating forms of legislative history” and contends that these floor statements were also not directed toward the Code. Id.

Coughlin counters that historical context supports the abrogation of sovereign immunity for Indigenous tribes. Brief for Respondent at 30. In response to the Band’s reference to other federal statutes, including the RCRA, SDWA, CWA, BEAFA, and AHPA, which explicitly mention “tribes,” Coughlin argues that those statutes either 1) dealt specifically with “tribal affairs'” or included them within the definition of “person” which usually carries an “interpretive presumption” against including sovereigns. Id. at 35. Thus, according to Coughlin, a reason existed to include explicit references to Indigenous tribes in those statutes, but not here, where the Code does not specifically deal with tribal affairs and uses the term “governmental unit,” which does not have an interpretive presumption against including sovereigns. Id. at 35–36.

Additionally, Coughlin asserts that the clear statement rule is just one of many “background principles” to consider. Id. at 30. Coughlin argues that the historical record reflects another background principle: the Framers’ goal for uniformity. Id. at 31. According to Coughlin, the Framers’ goal for harmonizing bankruptcy law supports finding an intent to abrogate sovereign immunity for Indigenous tribes instead of maintaining a “patchwork” of laws and the ability for sovereigns to interfere with bankruptcy proceedings. Id. at 30. Finally, Coughlin concludes that, like Congress’s eminent domain and war powers, courts have historically recognized its bankruptcy powers as one of few powers to uniformly abrogate state sovereign immunity. Id. at 31.