Document Type
Brief
Publication Date
3-1-2023
Abstract
The lower court’s decision abrogates the sovereign immunity of tribal nations, including their businesses and related entities, in more than 50 separate sections of the United States Bankruptcy Code. The lower court does this in contravention of both the principles of statutory construction and the precedent of this Court.
Tribal nations are engaged in extensive governmental and regulatory activities. In this role, they interact regularly with individuals and businesses that may become debtors under the United States Bankruptcy Code. Preserving the sovereign immunity of tribal nations in these instances is essential to preserving their rights to self-determination and self-governance.
Tribal nations’ ability to raise governmental revenue via taxation is severely limited. Yet, the needs of the tribal citizenry are often disproportionately high due to the historic lack of investment in tribal infrastructure and economies.
Given these circumstances, many tribal nations have pursued economic ventures spearheaded by tribal businesses and enterprises to fund government operations, stimulate local economic development and provide much-needed employment opportunities for tribal members and non-members. Tribal enterprises are a vital tool of tribal nations in ensuring the safety, security, health, and welfare of tribal members. Those businesses regularly transact with individuals and entities who can later become debtors under the United States Bankruptcy Code. Absent sovereign immunity, tribal nations and their businesses can be dragged into costly bankruptcy litigation.
Tribal nations have experienced first-hand the detrimental impact of the abrogation of sovereign immunity in bankruptcy cases. Following the Ninth Circuit’s decision in Krystal Energy that subjected tribal nations to section 106 of the Bankruptcy Code, tribal nations have been forced to spend significant time and resources litigating in United States Bankruptcy Court regarding issues that should have been resolved under tribal law. Absent the Ninth Circuit’s decision, those issues never would have been raised in the bankruptcy court.
Given the harm caused by the abrogation of tribal sovereign immunity in bankruptcy and likely future additional damage this will cause, this Court should not lower the “unequivocal” standard and read terms like “Indian” or “tribe” or “tribal” into the definition of “governmental units” in 11 U.S.C. § 101(27), when no such terms appear anywhere in the United States Bankruptcy Code. Congress knows how to abrogate tribal sovereign immunity and it is Congress’s duty— not the courts—to do so clearly in legislation after reasoned consideration and debate when making such a damaging and far-reaching determination in contravention of sovereign immunity.
The decision of the lower court must be overruled.
Publisher
The Supreme Court of the United States
Volume
Docket No. 22-227
First Page
i
Last Page
27
Keywords
Tribal Sovereign Authority, Tribal Sovereign Immunity, United States Bankruptcy Code, Section 106
Recommended Citation
Brief for The Navajo Nation et al. as Amici Curiae Supporting Petitioners, Lac de Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382 (2023) (No. 22-227)