Opposition Brief — Lac du Flambeau Band of Lake Superior Chippewa Indians, et al., Petitioners v. Brian W. Coughlin

No. 22-227

IN THE

Supreme Court of the United States

__________

LAC DU FLAMBEAU BAND OF

LAKE SUPERIOR CHIPPEWA INDIANS, ET AL.,

Petitioners,

v.

BRIAN W. COUGHLIN,

Respondent.

__________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

__________

BRIEF IN OPPOSITION

__________

RICHARD N. GOTTLIEB

LAW OFFICES OF

RICHARD N. GOTTLIEB

10 Tremont Street

Suite 11, 3rd Floor

Boston, MA 02108

(617) 742-4491

MICHAEL D. CAMERON

ALFANO LAW OFFICE,

PLLC

4 Park Street, Suite 405

Concord, NH 03301

(603) 581-4684

November 8, 2022

GREGORY G. RAPAWY

Counsel of Record

MATTHEW N. DRECUN

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(grapawy@kellogghansen.com)

TERRIE L. HARMAN

ALFANO LAW OFFICE,

PLLC

129 Water Street

Exeter, NH 03833

(603) 431-0666

QUESTION PRESENTED

Whether 11 U.S.C. § 106(a), which “abrogate[s]”

the “sovereign immunity” of a “governmental unit . . .

with respect to” a list of Bankruptcy Code provisions,

read together with 11 U.S.C. § 101(27), which defines

the term “governmental unit” to include “foreign

or domestic government[s],” clearly abrogates the

common-law immunity of an Indian tribe from suit.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ....................................................... 1

STATEMENT .............................................................. 2

REASONS FOR DENYING THE PETITION ........... 9

I. REVIEW IS NOT WARRANTED AT

THIS TIME....................................................... 9

A. The Circuit Conflict Is Recent and

Shallow, and It May Resolve Without This Court’s Intervention ..................... 9

B. There Is No Broader Circuit Conflict ....... 10

C. Petitioners’ Claims of Urgency Lack

Force .......................................................... 11

II. THE DECISION OF THE COURT OF

APPEALS WAS CORRECT ........................... 13

A. The Court of Appeals Correctly

Construed the Bankruptcy Code .............. 14

B. Petitioners Fail To Show Any Error

by the Court of Appeals ............................ 16

CONCLUSION.......................................................... 20

iii

TABLE OF AUTHORITIES

Page

CASES

Abbott v. Veasey, 137 S. Ct. 612 (2017) .................... 10

Blatchford v. Native Vill. of Noatak, 501 U.S.

775 (1991) ............................................................ 15

C & L Enters., Inc. v. Citizen Band Potawatomi

Indian Tribe of Oklahoma, 532 U.S. 411

(2001) ...................................................... 4, 13, 18, 19

Caraco Pharm. Labs., Ltd. v. Novo Nordisk

A/S, 566 U.S. 399 (2012) .................................... 14

Central Virginia Cmty. Coll. v. Katz, 546 U.S.

356 (2006) ............................................................ 12

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1

(1831) ...................................................... 7-8, 15, 17

City of Chicago v. Fulton, 141 S. Ct. 585 (2021) ........ 2

Daniel v. National Park Serv., 891 F.3d 762

(9th Cir. 2018)...........................................................11

Dellmuth v. Muth, 491 U.S. 223 (1989) ................... 13

Encino Motorcars, LLC v. Navarro, 138 S. Ct.

1134 (2018) .......................................................... 19

FAA v. Cooper, 566 U.S. 284 (2012) ................8, 13, 18

Greektown Holdings, LLC, In re, 917 F.3d 451

(6th Cir. 2019)...............................................6, 9, 18

Harrison v. PPG Indus., Inc., 446 U.S. 578

(1980) ................................................................... 19

Krystal Energy Co. v. Navajo Nation, 357 F.3d

1055 (9th Cir. 2004) ..............................6, 11, 12, 15

iv

Maryland v. Baltimore Radio Show, 338 U.S.

912 (1950) .............................................................. 9

Meyers v. Oneida Tribe of Indians of Wisconsin, 836 F.3d 818 (7th Cir. 2016) ...............6, 10, 11

Michigan v. Bay Mills Indian Cmty., 572 U.S.

782 (2014) ...............................................4, 7, 13, 14

Midlantic Nat’l Bank v. New Jersey Dep’t of

Envt’l Prot., 474 U.S. 494 (1986)........................... 2

Montana v. United States, 450 U.S. 544 (1981)......... 7

NFL v. Ninth Inning, Inc., 141 S. Ct. 56 (2020) ...... 10

Republic of Sudan v. Harrison, 139 S. Ct. 1048

(2019) ................................................................... 14

Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571

(2008) ................................................................... 13

Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47

(2007) ................................................................... 18

Santa Clara Pueblo v. Martinez, 436 U.S. 49

(1978) ............................................................... 4, 13

Schindler Elevator Corp. v. U.S. ex rel. Kirk,

563 U.S. 401 (2011) ............................................. 14

United States v. Powell, 423 U.S. 87 (1975)............. 19

United States v. Testan, 424 U.S. 392 (1979) .......... 13

Upper Skagit Indian Tribe v. Lundgren,

138 S. Ct. 1649 (2018) ......................................... 11

Whitaker, In re, 474 B.R. 687 (8th Cir. B.A.P.

2012)....................................................................... 6

v

CONSTITUTION, STATUTES, AND RULES

U.S. Const. art. III .................................................... 17

Bankruptcy Code (11 U.S.C.) ............................ passim

Ch. 1, 11 U.S.C. § 101 et seq.:

11 U.S.C. § 101(14A) ...................................... 16

11 U.S.C. § 101(27) ...........................2, 3, 6, 7, 8,

11, 12, 14, 15, 17

11 U.S.C. § 106(a) ........................... 1-2, 3, 6, 11,

12, 14, 17, 18

11 U.S.C. § 107(c)(2) ....................................... 16

Ch. 3, 11 U.S.C. § 301 et seq.:

11 U.S.C. § 362 ................................................. 3

11 U.S.C. § 362(a) ............................................. 4

11 U.S.C. § 362(a)(6) ........................................ 2

11 U.S.C. § 362(b)(4) ...................................... 16

11 U.S.C. § 362(k)............................................. 5

11 U.S.C. § 362(k)(1) ........................................ 3

Ch. 5, 11 U.S.C. § 501 et seq.:

11 U.S.C. § 507(a)(1)(A)-(B) ........................... 16

11 U.S.C. § 523(a)(5) ...................................... 16

11 U.S.C. § 523(a)(7) ...................................... 16

Ch. 13, 11 U.S.C. § 1301 et seq. ........................ 1, 4

Fair and Accurate Credit Transactions Act of

2003, Pub. L. No. 108-159, 117 Stat. 1952 .....10, 11

15 U.S.C. § 1681a(b) ............................................ 10

15 U.S.C. § 1681n ................................................ 10

15 U.S.C. § 1681o ................................................. 10

vi

28 U.S.C. § 158(b) ....................................................... 6

Fed. R. Civ. P.:

Rule 12(b)(1) .......................................................... 5

Rule 12(b)(6) .......................................................... 5

LEGISLATIVE MATERIALS

S. Rep. No. 95-989 (1978), reprinted in 1978

U.S.C.C.A.N. 5787 ................................................. 2

OTHER MATERIALS

Nat’l State Conf. of State Legislatures, Federal

and State Recognized Tribes, https://www.

ncsl.org/legislators-staff/legislators/quadcaucus/list-of-federal-and-state-recognizedtribes.aspx............................................................ 12

Webster’s Third New International Dictionary

(1961) ..................................................................... 7

INTRODUCTION

The Lac du Flambeau Band of Lake Superior

Chippewa Indians owns a number of corporate entities. One of those entities, Niiwin, LLC (operating

under the name “Lendgreen”), makes payday loans

over the Internet, charging triple-digit interest rates.

Lendgreen claims that its rates are authorized by

tribal law and that it cannot be sued over its lending

practices because it is an “arm of the tribe” that

shares in the Band’s tribal sovereign immunity.

In July 2020, during a period of financial and

psychological distress, Brian W. Coughlin made the

mistake of taking a $1,100 loan from Lendgreen,

which charged him an effective annual interest rate

of 107.9%. Later that year, Coughlin’s debts grew

beyond his ability to pay, and he sought protection

under Chapter 13 of the Bankruptcy Code. His filing

of that petition operated as an automatic stay of all

collection attempts.

Even after receiving notice of the stay from Coughlin’s counsel and Coughlin personally, Lendgreen

continued attempting to collect Coughlin’s debt. It

sent threatening emails and made harassing phone

calls on a regular (sometimes daily) basis. Coughlin,

who suffers from severe clinical depression, ultimately

attempted to take his own life. While he was in the

hospital recovering from that attempt, Lendgreen

kept harassing him.

Coughlin moved the bankruptcy court to enforce

the automatic stay. The Band and its corporations,

including Lendgreen, asserted tribal immunity from

suit, and the court dismissed Coughlin’s motion. On

appeal, the First Circuit held that the Bankruptcy

Code unequivocally abrogates the Band’s immunity.

It relied on the Code’s express “abrogat[ion]” of

“sovereign immunity” for a “governmental unit,” 11

2

U.S.C. § 106(a), a term defined to include not only

the United States, the several States, and foreign

states, but “other foreign or domestic government[s],”

id. § 101(27). Because a tribe is a “domestic government” within the ordinary meaning of those words,

the Code abrogates tribal immunity from suit.

Review of that interlocutory decision is not

warranted at this time. Although the First and

Ninth Circuits now disagree with the Sixth Circuit,

that conflict is recent and shallow. It may resolve

without this Court’s intervention. Percolation may

better develop the arguments on both sides. The

Band fails to show any need for urgent review. The

First Circuit’s decision is also firmly grounded in

traditional methods of statutory interpretation and

consistent with this Court’s precedent on tribal

immunity. The petition should therefore be denied.

STATEMENT

1. When a debtor seeks federal bankruptcy protection, the Bankruptcy Code automatically imposes

“a stay, applicable to all entities,” of all efforts to

collect the debtor’s prepetition debts, including “any

act to collect, assess, or recover a claim against

the debtor that arose before the commencement

of the case under this title.” 11 U.S.C. § 362(a)(6).

“The automatic stay serves the debtor’s interests

by protecting the estate from dismemberment, and

it also benefits creditors as a group by preventing

individual creditors from pursuing their own interests to the detriment of the others.” City of Chicago

v. Fulton, 141 S. Ct. 585, 589 (2021). It is “ ‘one of

the fundamental debtor protections provided by

the bankruptcy laws.’ ” Midlantic Nat’l Bank v. New

Jersey Dep’t of Envt’l Prot., 474 U.S. 494, 503 (1986)

(quoting S. Rep. No. 95-989, at 54 (1978), reprinted in

1978 U.S.C.C.A.N. 5787, 5840). A debtor injured by

3

a “willful violation” of the automatic stay has a cause

of action to “recover actual damages, including costs

and attorney’s fees.” 11 U.S.C. § 362(k)(1).

Congress has authorized the bankruptcy courts

to enforce the Code’s automatic stay even against

sovereign entities. That authority is granted by

§ 106(a), which “abrogate[s]” the “sovereign immunity” of a “governmental unit” with respect to section

362 and certain other sections; permits “[t]he court

[to] hear and determine any issue arising with

respect to the application of such sections to governmental units”; and authorizes the court to “issue

against a governmental unit an order, process,

or judgment under such sections,” including “an

order or judgment awarding a money recovery.” Id.

§ 106(a). The Code further defines a “governmental

unit” to mean “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.” Id. § 101(27).

2. Petitioners are the Lac du Flambeau Band of

Lake Superior Chippewa Indians, a federally recognized Indian tribe, together with several of its directly

and indirectly owned corporate entities: L.D.F. Business Development Corp., L.D.F. Holdings, LLC, and,

at the bottom of the corporate chain, Niiwin, LLC,

which does business as “Lendgreen.” See Pet. 5 n.1.1

Lendgreen is an online payday lender; it makes

small, high-interest loans over the Internet. The

1 References to “the Band” in this brief include petitioners

collectively, except where context indicates otherwise.

4

loans, which in some instances have featured annual

percentage rates as high as 838.85%, purport to be

governed by the Band’s laws rather than the laws of

the States in which borrowers reside. C.A. App. 305.

As a federally recognized tribe, the Band is

generally immune from suit in federal or state court

under the doctrine of tribal sovereign immunity.

See generally Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782, 788-89 (2014). But tribal sovereignty

is “qualified”; “a tribe’s immunity, like its other governmental powers and attributes,” is “in Congress’s

hands.” Id. at 789. Accordingly, Congress can “abrogate tribal immunity” by enacting statutory language

that “ ‘unequivocally’ expresses that purpose.” C & L

Enters., Inc. v. Citizen Band Potawatomi Indian Tribe

of Oklahoma, 532 U.S. 411, 418 (2001) (quoting Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)).

3. Respondent Brian Coughlin is the debtor in a

Chapter 13 bankruptcy proceeding in the District of

Massachusetts. In 2019, he went through a time

of financial distress. In July 2019, he took out a

$1,100 short-term loan from Lendgreen. App. 3a. In

December 2019, he filed voluntarily for bankruptcy,

listing the debt to Lendgreen, which by that time was

nearly $1,600, on his petition. App. 3a-4a, 54a.

Coughlin’s bankruptcy counsel mailed notice of

Coughlin’s bankruptcy filing to Lendgreen, including

a copy of Coughlin’s proposed Chapter 13 plan to pay

off his debts. App. 4a.

Coughlin’s Chapter 13 petition triggered the

automatic stay under § 362(a), requiring Lendgreen

to cease attempting to collect on its loan agreement.

Lendgreen did not comply. Instead, it contacted

Coughlin frequently (sometimes daily) to urge him to

pay his debt and to threaten him with consequences

if he did not. App. 4a; C.A. App. 88-90. Coughlin

5

told Lendgreen’s representatives that he had filed for

bankruptcy and asked them to contact his lawyer.

C.A. App. 116, 145. Lendgreen did not stop calling

and emailing Coughlin directly. Id. at 88-90.

Coughlin suffers from severe clinical depression.

Id. at 116-17, 145. Lendgreen’s continuing harassment “compounded” and “escalated” the effects of his

financial distress on his mental condition, “constantly

. . . remind[ing]” him of his troubles. Id. at 117, 145.

He suffered “sleepless nights” and “rising anxiety

and depression.” Id. at 146. On February 9, 2020,

his “mental and financial agony,” App. 4a, led him to

“attempt[ ] suicide due to [his] overwhelming stress,

anxiety and lack of hope for a better life.” C.A. App.

117, 146; see also id. at 118 (“The actions taken by

LendGreen . . . literally ‘sent me over the edge’ . . . .”).

As a result of his suicide attempt, Coughlin was hospitalized for 11 days. Id. at 146, 149-60. Lendgreen

continued to call him in the hospital and afterwards.

Id. at 89-90, 146.

4. On March 25, 2020, Coughlin moved to

enforce the bankruptcy stay against the Band and its

corporate entities, including Lendgreen. App. 4a.

Invoking § 362(k), he sought to recover his damages,

including his medical bills and lost vacation time

from work; his attorney’s fees; and an order against

further collection efforts. Id. The Band moved to

dismiss, asserting that the Band was immune from

suit under the doctrine of tribal immunity. Id.2 The

Band’s corporate entities further asserted that they

2

The parties agreed, and the bankruptcy court endorsed

their agreement, that petitioners could raise their immunity

defense under the same procedural rules that would apply to a

motion to dismiss under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6) – that is, accepting Coughlin’s well-pleaded

allegations as true.

6

shared in the Band’s immunity under the “arm of the

tribe” doctrine. App. 3a n.1. Coughlin responded

that Congress had abrogated tribal immunity in

§ 106(a), because tribal governments fit within the

definition of a “governmental unit” in § 101(27) – in

particular, the concluding phrase “other foreign or

domestic government.”

On October 19, 2020, the bankruptcy court (Bailey,

J.) granted the motion to dismiss. App. 53a-58a. The

bankruptcy court recognized that the Bankruptcy Code

contains “a broad abrogation of sovereign immunity.”

App. 55a. Nevertheless, it found persuasive and followed In re Greektown Holdings, LLC, 917 F.3d 451

(6th Cir. 2019), which had “concluded that ‘11 U.S.C.

§§ 106[ and] 101(27) lack the requisite clarity of

intent to abrogate tribal sovereign immunity.’ ” App.

57a (quoting 917 F.3d at 461). It recognized that

Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055

(9th Cir. 2004), had reached a contrary conclusion,

but declined to follow that case. See id.3

5. The First Circuit reversed. In an opinion by

Judge Lynch, joined by Judge Burroughs, it held that

“the Bankruptcy Code unequivocally strips tribes of

their immunity.” App. 3a. The court “beg[a]n with

the text,” reasoning that § 106(a)’s directive that

“ ‘sovereign immunity is abrogated as to a govern3 The bankruptcy court incorrectly stated that “three circuits

. . . have rejected the Ninth Circuit[ ’s]” decision in Krystal

Energy. App. 57a. It cited Greektown Holdings, Meyers v.

Oneida Tribe of Indians of Wisconsin, 836 F.3d 818 (7th Cir.

2016), and In re Whitaker, 474 B.R. 687 (8th Cir. B.A.P. 2012).

Meyers did not involve the Bankruptcy Code and declined

to “weigh in” on whether the Code abrogates tribal immunity.

836 F.3d at 826. Whitaker was decided by a Bankruptcy Appellate Panel constituted under 28 U.S.C. § 158(b), not by the

Eighth Circuit.

7

mental unit’ ” is a “plain statement” of Congress’s

“intent to abrogate immunity for all governmental

units.” App. 6a. It then turned to the “capacious[ ]”

definition of “governmental unit” in § 101(27), which

it found covers “essentially all forms of government.”

App. 7a. Accordingly, the court determined that

“[t]he issue is . . . whether a tribe is a domestic

government.” Id.

To resolve that issue, the court of appeals looked to

whether “[t]ribes . . . fall within the plain meaning of

the term government[ ]” and found “no real disagreement” that they do. Id. Tribes are the “ ‘governing

authorit[ies]’ of their members,” id. (quoting Webster’s Third New International Dictionary 982 (1961)

(“Webster’s Third ”)) (brackets in original); exercise

“ ‘inherent power[s] to determine tribal membership,

to regulate domestic relations among members, and

to prescribe rules of inheritance for members,’ ” App.

8a (quoting Montana v. United States, 450 U.S. 544,

564 (1981)); “largely retain the authority to prosecute

members for offenses committed in their territories,”

id.; and are generally immune from suit for the “very

purpose of . . . protect[ing] ‘Indian self-government,’ ”

id. (quoting Bay Mills, 572 U.S. at 790).

The court of appeals also found it “clear that tribes

are domestic.” Id. Relying on the ordinary meaning

of the term “domestic,” it reasoned that tribes are

“ ‘within the sphere of authority or control or the . . .

boundaries of ’ the United States.” App. 8a & n.4

(quoting Webster’s Third and other dictionaries from

the time of the Bankruptcy Code’s enactment) (ellipsis in original). It also collected examples from “[a]ll

three branches of government” referring to tribes

as “ ‘domestic dependent nations,’ ” a phrase “coined”

by “Chief Justice Marshall . . . in 1831.” App. 9a

(quoting Cherokee Nation v. Georgia, 30 U.S. (5 Pet.)

8

1, 17 (1831)); see App. 9a-10a & nn.5-6 (collecting additional examples). Accordingly, the court concluded,

Congress “understood tribes to be domestic governments” when it “enacted §§ 101(27) and 106,” and

those provisions “unmistakably abrogate[ ] the sovereign immunity of tribes.” App. 11a.

The court of appeals “dr[e]w additional support”

for that reading of the Bankruptcy Code from its

“structure,” which confers “benefits” to governmental

units such as “priority for certain unsecured claims”

and “certain exceptions to discharge.” App. 11a-12a.

It also addressed the Band’s argument that Congress

must “use[ ] the word ‘tribe’ ” to abrogate immunity,

rejecting that contention as a “magic-words test”

foreclosed by FAA v. Cooper, 566 U.S. 284 (2012).

App. 12a-13a. The court went on to address and

reject the Band’s other arguments, which included

reliance on “silen[ce]” in the “legislative history,”

App. 14a, and on “canons of [statutory] construction

. . . [that] apply only to ambiguous statutes,” App. 15a.

Chief Judge Barron dissented. He accepted the

Band’s argument that Congress had not “use[d] the

clearest means of abrogating . . . immunity by including ‘Indian Tribe’ – or its equivalent” – in § 101(27),

though at the same time disclaiming the position

that “Congress must name Indian tribes to abrogate

their immunity.” App. 24a-25a, 26a. He did not dispute that tribes are governments, App. 30a, nor that

they are “domestic” in the sense that they “operate

within the United States as a geographic location,”

App. 32a. He further acknowledged that it was

“not obvious that Congress would have wanted to

abrogate the immunity of every sovereign entitled to

assert it but an Indian tribe” and that immunity

would “interfere[ ] with the [Bankruptcy] Code’s

operation.” App. 43a-44a. But he nevertheless found

9

it “plausible . . . that Congress meant . . . 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’).” App. 36a.

The First Circuit remanded the case back to

the bankruptcy court, which has declined to stay

proceedings and permitted limited discovery to begin.

The present petition followed.

REASONS FOR DENYING THE PETITION

I. REVIEW IS NOT WARRANTED AT THIS

TIME

A. The Circuit Conflict Is Recent and Shallow,

and It May Resolve Without This Court’s

Intervention

The question whether the Bankruptcy Code abrogates tribal sovereign immunity has reached circuit

courts only three times since Congress enacted the

Bankruptcy Code in 1978. Further, until 2019, when

the Sixth Circuit decided In re Greektown Holdings,

LLC, 917 F.3d 451 (6th Cir. 2019), there was no relevant conflict at the circuit level. Although a conflict

now exists, it is recent and shallow, and it may still

resolve without this Court’s intervention. Especially

if other circuits join the First and Ninth Circuits, the

Sixth Circuit may yet change its contrary position

through en banc review.

Even if the conflict does not resolve itself, the

Court’s process of decision may benefit from further

percolation. See Maryland v. Baltimore Radio Show,

338 U.S. 912, 918 (1950) (Frankfurter, J., respecting

the denial of the petition for writ of certiorari)

(“It may be desirable to have different aspects of an

issue further illumined by the lower courts.”). The

10

opinions in this case suggest that percolation may

have benefits. The majority noted that the dissent

had made at least three arguments that the parties

had not briefed, App. 16a, 20a & n.13; the dissent

observed that the parties had not addressed at least

two points it found relevant to its analysis, App. 21a,

26a n.14. Such observations suggest that additional

dialogue at the circuit level may yet be productive

and ultimately helpful to this Court.

This case is also in an “interlocutory posture,”

which “counsel[s] against this Court’s review.” NFL

v. Ninth Inning, Inc., 141 S. Ct. 56, 56-57 (2020)

(statement of Kavanaugh, J., respecting the denial

of certiorari) (citing Abbott v. Veasey, 137 S. Ct. 612,

613 (2017) (statement of Roberts, C.J., respecting the

denial of certiorari)). Proceedings continue in the

bankruptcy court. The First Circuit denied a stay

of its mandate, and the bankruptcy court has also

denied a stay and has directed limited discovery.

The Band has stated that it wishes to move again to

dismiss on non-immunity grounds. Coughlin intends

to pursue diligently a final judgment against the

Band. If and when he obtains one, the immunity

question can be reviewed on a post-judgment petition

for certiorari with fully developed facts.

B. There Is No Broader Circuit Conflict

The Band inaccurately suggests (at 18) that

“the circuit conflict reaches beyond the bankruptcy

context,” citing Meyers v. Oneida Tribe of Indians

of Wisconsin, 836 F.3d 818 (7th Cir. 2016). Meyers

involved the Fair and Accurate Credit Transactions

Act of 2003 (“FACTA”), a differently worded statute

that authorizes suit against a “person,” 15 U.S.C.

§§ 1681n, 1681o, and defines a “person” to include

“any . . . government,” id. § 1681a(b). FACTA contains

no express language of abrogation comparable to

11

§ 106(a), contains no definition of “government” or

“governmental unit” as expansive as § 101(27), and

does not use the phrase “foreign or domestic government,” the focus of the parties’ dispute here.

To be sure, Meyers criticized Krystal Energy Co. v.

Navajo Nation, 357 F.3d 1055 (9th Cir. 2004), and

the First Circuit in this case declined to follow the

“logic” of Meyers. See Meyers, 836 F.3d at 824-26;

App. 13a n.8. But Meyers also clarified (in language

the Band omits) that the Seventh Circuit did not

need to “weigh in” on the Bankruptcy Code’s immunity provisions because they were not “directly on

point for purposes of interpreting a different definition in FACTA.” 836 F.3d at 826. And the First

Circuit likewise “note[d]” that “Meyers dealt with a

different statute.” App. 13a n.8. In addition, the

Ninth Circuit, which held in Krystal Energy that the

Code abrogates tribal immunity, more recently cited

Meyers favorably in concluding that FACTA does not

abrogate federal sovereign immunity. See Daniel v.

National Park Serv., 891 F.3d 762, 774 (9th Cir. 2018).

That undermines any argument that Meyers is part

of a circuit split relevant to the Band’s petition.

C. Petitioners’ Claims of Urgency Lack Force

There is no reason that the Court should answer

the question presented with special urgency. The

general importance of tribal immunity is not a

reason to rush to decide particular cases about it.

For example, in Upper Skagit Indian Tribe v.

Lundgren, 138 S. Ct. 1649 (2018), which the Band

quotes (at 26), the Court referred to the “limits” on

tribal immunity as a “grave question” not as a reason

for haste, but as a reason for deliberation – specifically, a reason to remand for a state supreme court

to address certain arguments, instead of deciding

them in the first instance. 138 S. Ct. at 1654. That

12

reasoning only reinforces that this Court applies its

ordinary principles of review in tribal-immunity cases.

The Court should give no weight to the Band’s

exaggerated claim (at 28) that abrogation of immunity

in the Bankruptcy Code poses an “existential threat”

to tribal “self-governance.” Krystal Energy has been

the law of the Ninth Circuit for 18 years, and the

Ninth Circuit contains 422 (73.5%) of the 574 federally recognized Indian tribes.4 Those tribes have not

ceased to be self-governing, and the Band has pointed to no flood of bankruptcy-related litigation against

them. They are merely in the same position as the

federal government and its agencies, whose sovereign

immunity is waived by § 101(27) and § 106(a); and as

state governments and their agencies, whose immunity from federal bankruptcy jurisdiction was waived

“in the plan of the Convention.” Central Virginia

Cmty. Coll. v. Katz, 546 U.S. 356, 379 (2006).

The Band’s assertions (at 26-27) that bankruptcy

jurisdiction will interfere with tribes’ “commercial

enterprise[s]” and “economic . . . development” are

similarly overblown. Commercial enterprises of all

kinds – especially lenders – interact routinely with the

bankruptcy system, and the Band offers no reason to

think that bankruptcy jurisdiction will impede tribes’

general abilities to participate in commerce. To be

sure, enforcement of the automatic stay may hamper

tribal payday lenders’ ability to charge triple-digit

interest rates, hound vulnerable debtors for payment,

and ignore both written notice and personal pleas to

4 See Nat’l State Conf. of State Legislatures, Federal and

State Recognized Tribes, https://www.ncsl.org/legislators-staff/

legislators/quad-caucus/list-of-federal-and-state-recognizedtribes.aspx (last visited Nov. 3, 2022) (229 federally recognized

tribes and villages in Alaska, 21 in Arizona, 110 in California,

4 in Idaho, 19 in Nevada, 10 in Oregon, and 29 in Washington).

13

cease harassment. Supra pp. 4-5. But Lendgreen

and its amici do not claim that such activities are a

large part of tribal commercial enterprise.

II. THE DECISION OF THE COURT OF

APPEALS WAS CORRECT

Review is also not warranted because the First

Circuit’s decision was correct. This Court’s precedent

settles the basic framework for analysis: tribal

immunity is subject to Congress’s “plenary authority

over tribes,” but courts will determine that Congress

has exercised authority to abrogate only where Congress has “ ‘unequivocally’ express[ed] that purpose.”

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782,

790 (2014) (quoting C & L Enters., Inc. v. Citizen

Band Potawatomi Indian Tribe of Oklahoma, 532

U.S. 411, 418 (2001)). That requirement for a clear

statutory statement of abrogation reflects the same

legal standard for tribes as for other sovereigns,

including the federal and state governments. See

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59

(1978) (citing United States v. Testan, 424 U.S. 392,

399 (1979)).

This Court has described the clear-statement rule

for abrogation of immunity as a “canon of construction” and “a tool for interpreting the law” that does

not “displace[ ] the other traditional tools of statutory

construction.” Richlin Sec. Serv. Co. v. Chertoff, 553

U.S. 571, 589 (2008). It has further instructed that

“Congress need not state its intent in any particular

way” and need not “use magic words,” so long as its

intent is “clearly discernable from the statutory text

in light of traditional interpretive tools.” FAA v.

Cooper, 566 U.S. 284, 291 (2012); see also Dellmuth v.

Muth, 491 U.S. 223, 233 (1989) (Scalia, J., concurring) (explaining that “statutory text [can] clearly

subject[ ] States to suit for monetary damages . . .

14

without explicit reference to state sovereign immunity or the Eleventh Amendment”).

A. The Court of Appeals Correctly Construed

the Bankruptcy Code

The First Circuit’s statutory interpretation began

“ ‘where all such inquiries must begin: with the

language of the statute itself.’ ” Republic of Sudan v.

Harrison, 139 S. Ct. 1048, 1055-56 (2019) (quoting

Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S,

566 U.S. 399, 412 (2012)); see App. 6a. The first

steps of that analysis were and are undisputed:

§ 106(a) expressly abrogates the sovereign immunity

of a “governmental unit,” and § 101(27) defines

that phrase to include “other foreign or domestic

government[s]” beyond those it specifically lists.

App. 6a-8a. Because there was no dispute that tribes

are “government[s],” and no contention that they are

“foreign” to the United States, the court appropriately

focused on whether tribes are “domestic.”

Because the Bankruptcy Code does not define the

term “domestic,” the First Circuit gave that term its

ordinary meaning. See Schindler Elevator Corp. v.

U.S. ex rel. Kirk, 563 U.S. 401, 407 (2011) (“Statutory

construction must begin with the language employed

by Congress and the assumption that the ordinary

meaning of that language accurately expresses that

legislative purpose.”). The court of appeals properly

looked to dictionary definitions current at the time

of the Bankruptcy Code’s enactment to show that the

term “domestic” encompasses tribes because they are

“within the sphere of authority or control,” as well as

within the “boundaries,” of the United States. App.

8a & n.4.

Additional support for a reading of “domestic” that

encompasses tribes comes from this Court’s and its

15

members’ consistent usage of that term to describe

them. Examples include Chief Justice Marshall’s

oft-quoted use in Cherokee Nation v. Georgia, 30 U.S.

(5 Pet.) 1 (1831), of the phrase “domestic dependent

nations,” id. at 17; Justice Scalia’s more recent

statement that tribes “are more like States than

foreign sovereigns” in that they “are . . . domestic,”

Blatchford v. Native Vill. of Noatak, 501 U.S. 775,

782 (1991); and Justice Sotomayor’s concurrence in

Bay Mills, which used the specific phrase “domestic

governments” to refer to “Tribes” in the course of

emphasizing their retained sovereignty, 572 U.S. at

808 (Sotomayor, J., concurring); see also App. 9a &

n.5 (additional examples). Further, as the court of

appeals set out in detail, the executive and legislative branches frequently also refer to tribes as

“domestic.” App. 9a-10a & n.6.

The immediate context of the phrase “domestic

government” further reinforces the inference that it

includes tribes. As the Ninth Circuit observed in

Krystal Energy, the two modifiers to “government” –

the words “foreign or domestic” – set up a “dichotomy” that encompasses all “form[s] of government”

whatsoever. 357 F.3d at 1057. The phrasing is

similar to saying that a store is open “day and night”

or that a game will be played “rain or shine.” Those

expressions leave no doubt that the store will be open

at sunset or that the game will be played if the

weather is overcast. The phrase “other foreign or

domestic government” also comes at the end of a long

list of other types of governments and government

agencies and instrumentalities in § 101(27). The

clear inference from such a list is that Congress

intended to define the term “governmental unit”

broadly to capture any form of government that

might interact with a bankruptcy court.

16

The larger context of the Bankruptcy Code further

confirms that Congress intentionally wrote the

definition of “governmental unit” broadly. The term

“governmental unit” is used not merely to identify

the subjects of abrogation, but also to identify the

recipients of a broad range of benefits. The court of

appeals identified in particular the benefits available

to taxing authorities, which include tribes. App.

11a-12a. The Code also contains special priorities

and exemptions for governmental units that exercise

police and regulatory powers5 and issue orders to

pay alimony, maintenance, and child support.6

Tribes exercise those governmental functions with

respect to their members. The Band cannot explain

why Congress would have wanted to prevent tribes

from being treated like governments when they

exercise governmental powers.

B. Petitioners Fail To Show Any Error by the

Court of Appeals

The Band presents two main criticisms of the First

Circuit’s decision. Neither shows error or supports

5 See 11 U.S.C. § 107(c)(2) (permitting “governmental unit[s]”

exercising “police or regulatory” powers to access otherwise

protected confidential information); id. § 362(b)(4) (special

exception to automatic stay); id. § 523(a)(7) (exempting from

discharge “fine[s], penalt[ies], or forfeiture[s] payable to and for

the benefit of a governmental unit”).

6 See 11 U.S.C. § 101(14A) (defining the term “domestic

support obligation” to refer to debts “in the nature of alimony,

maintenance, or support” for a “spouse, former spouse, or child,”

including claims “recoverable by . . . a governmental unit”

and “established . . . by reason of . . . a determination made . . .

by a governmental unit”); id. § 507(a)(1)(A)-(B) (giving such

obligations first priority for payment, including when a

“governmental unit” asserts them); id. § 523(a)(5) (exempting

such claims from discharge).

17

review. First, the Band argues (at 20) that tribes are

neither “foreign” nor “domestic” because they “defy

. . . simple categorization.” It quotes this Court’s

statement that tribes cannot, “with strict accuracy,

be denominated foreign nations” and might “more

correctly, perhaps, be denominated domestic dependent nations,” Cherokee Nation, 30 U.S. (5 Pet.) at

17, suggesting that this creates ambiguity about the

categorization of tribes as “domestic.” But Cherokee

Nation considered whether tribes were “foreign”

because the Cherokee Nation was, at that time,

arguing that it was a “foreign state” within the

meaning of Article III. The Court rejected that

argument, holding that tribes were not “foreign” precisely because they were “domestic” – “[t]he Indian

territory is admitted to compose a part of the United

States,” and the tribes were “completely under the

sovereignty and dominion of the United States.” Id.

That is, Cherokee Nation looked to the same criteria

of domesticity that the court of appeals did here:

whether a tribe was within the territory of the United

States and subject to its authority.

In any event, whether or not the Cherokee Nation

had a reasonable but unsuccessful argument to be

counted as a “foreign state” in 1831, there was no

ambiguity about describing tribes as “domestic” in

1978, when Congress defined “governmental unit[s]”

in § 101(27), or in 1994, when it “abrogated” the

immunity of governmental units in § 106(a). By that

point, Cherokee Nation had been the law for more

than a hundred years; this Court had repeated its

“formulation many times,” App. 9a & n.5 (collecting

examples); and the other branches of government

had frequently quoted it as well, including “the

ranking member of the Judiciary Committee when

it marked up the 1994 amendments to the Code,”

18

App. 9a-10a & n.6.7 Against that background, it is

not enough for the Band to assert (at 2, 12) that

tribes are “unique.” It needs some reason to say that

their unique status puts them outside the ordinary

meaning of the word “domestic,” and it has none.

Second, the Band repeats (at 24) the Sixth Circuit’s

contention that “there is not one example in all of

history where [this] Court has found that Congress

intended to abrogate tribal sovereign immunity

without expressly mentioning Indian tribes somewhere in the statute.” Greektown Holdings, 917 F.3d

at 640. It is just as accurate to say that there is not

one example in all of history where this Court has

held that Congress must expressly mention Indian

tribes to abrogate immunity. As the First Circuit

explained, such a requirement would conflict with

this Court’s holding in Cooper that “Congress need

not state its intent in any particular way” or “use

magic words” to abrogate immunity. 566 U.S. at 291;

see App. 13a-14a. The question is not what other

phrases Congress might have used, but whether the

phrase that Congress chose to use (“other foreign

or domestic government”), read in context, clearly

includes tribes.

This Court’s decision in C & L Enterprises underscores the point that no particular form of words

7 The Band mischaracterizes (at 24) the court of appeals’

decision as relying on “floor statements” as a form of “legislative

history.” The court of appeals’ point was not that particular

legislators’ statements were the history of § 106(a), but that

consistent legislative, executive, and judicial references to tribes

as “domestic” in many contexts showed that Congress in 1978

and 1994 would have understood the phrase “domestic government” to include tribal governments. Cf. Safeco Ins. Co. of Am.

v. Burr, 551 U.S. 47, 56-58 (2007) (relying on “standard civil

usage” to interpret a disputed statutory phrase).

19

is required. C & L Enterprises dealt with a tribe’s

waiver of immunity in a contract, which is governed

by the same clear-statement rule as congressional

abrogation of immunity. See 532 U.S. at 418. The

Court held that the tribe waived its immunity from

suit in state court by using a form contract for a

construction project, even though the contract did not

mention tribal immunity. Id. at 419-21. Instead, the

tribe waived immunity through the form contract’s

arbitration and choice-of-law clauses, which permitted entry of judgment “in any court having jurisdiction thereof ” and chose “the law of the place where

the Project is located.” Id. at 415. The tribe’s waiver

in C & L Enterprises could have been more explicit

by “us[ing] the words ‘sovereign immunity.’ ” Id. at

420. But this Court held that the “clear import” of

the clauses was that the tribe had “effectively consented” to confirmation of the arbitral award in state

court. Id. at 414, 419. The same logic applies here:

an abrogation, like a waiver, can be clear and effective without expressly referring to tribal immunity.

The Band’s remaining points likewise lack force.

It follows (at 24) the appellate dissent in referring

to the absence of any “mention of Indian tribes” in

the Code’s “legislative history,” App. 48a (Barron,

C.J., dissenting), but fails to answer the majority’s

response that silence in the legislative history cannot

change the meaning of clear text. App. 14a (citing

Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134,

1143 (2018)). It invokes (at 25-26) the canon of

ejusdem generis, but ignores this Court’s teaching

that ejusdem generis applies only “ ‘when there is

uncertainty’ ” in the meaning of a statute. Harrison

v. PPG Indus., Inc., 446 U.S. 578, 588-89 (1980)

(quoting United States v. Powell, 423 U.S. 87, 91

(1975)). Here, the court of appeals correctly found

20

that the phrase “other foreign or domestic government” is clear on its face and in context; accordingly,

ejusdem generis does not help the Band.

In sum, the petition fails to show any present need

to review the decision of the court of appeals. That

decision implicates only a shallow and recent circuit

conflict, raises no issue of nationwide urgency, and

departs in no way from this Court’s precedent.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

RICHARD N. GOTTLIEB

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November 8, 2022

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Counsel of Record

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