SUPREME COURT OF THE UNITED STATES
LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA
INDIANS, et al., PETITIONERS v.
BRIAN W. COUGHLIN
on writ of certiorari to the united states
court of appeals for the first circuit
[June 15, 2023]
Justice Gorsuch, dissenting.
Until today, there was “not one example in
all of history where [this] Court ha[d] found that Congress
intended to abrogate tribal sovereign immunity without
expressly mentioning Indian tribes somewhere in the statute.”
In re Greektown Holdings, LLC
, 917 F.3d 451, 460 (CA6 2019)
(internal quotation marks omitted). No longer. The Court reads the
phrase “other foreign or domestic government,” 11
U. S. C. §101(27), as synonymous with “any and
every government,” ante,
at 4—all for the
purpose of holding that §106(a) of the Bankruptcy Code
abrogates tribal sovereign immunity. It is a plausible
interpretation. But plausible is not the standard our tribal
immunity jurisprudence demands. Before holding that Congress has
vitiated tribal immunity, the Legislature must “unequivocally
express” its intent to achieve that result. C & L
v. Citizen Band Potawatomi Tribe of
, 532 U.S.
, 418 (2001) (internal quotation marks omitted).
Respectfully, I do not think the language here
does the trick. The phrase “other foreign or domestic
government” could mean what the Court suggests: every
government, everywhere. But it could also mean what it says: every
“other foreign . . . government”; every
“other . . . domestic government.” And
properly understood, Tribes are neither of those things. Instead,
the Constitution’s text—and two centuries of history
and precedent—establish that Tribes enjoy a unique status in
our law. Because this reading of the statute is itself (at worst) a
plausible one, I would hold that the Bankruptcy Code flunks this
Court’s clear- statement rule and reverse.
As the Court reaffirms today, “the
doctrine of tribal immunity is settled law.” Kiowa Tribe
v. Manufacturing Technologies, Inc.
, 523 U.S.
, 756 (1998); see ante,
at 3–4. Nor should that
fact come as a surprise. From the founding to the present, this
Court has recognized the Tribes’ continued existence as
“independent sovereigns.” Haaland
, 599 U. S. ___, ___–___ (2023) (Gorsuch,
J., concurring) (slip op., at 12–18); see, e.g.,
, 322 (1978); Worcester
Pet. 515, 559 (1832) (Marshall, C. J., for the Court).
A “necessary corollary to [that] Indian
sovereignty” is immunity from private suit. Three
Affiliated Tribes of Fort Berthold Reservation
Engineering, P. C.
, 476 U.S.
, 890 (1986). It is, after all, “inherent in the
nature of sovereignty not to be amenable to the suit of an
individual without its consent
.” The Federalist No.
81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton). That
understanding, derived from both “common law sovereign
immunity” and “law-of-nations sovereign
immunity,” is a background principle on which the
Constitution itself rests. See Franchise Tax Bd. of Cal.
, 587 U. S. ___, ___–___ (2019) (slip op.,
at 6–9) (internal quotation marks omitted) (citing
authorities). And it applies to Tribes no less than foreign
nations, Santa Clara Pueblo
, 436 U.S.
, 58 (1978), a tradition that traces back over 170 years, see
, 11 How. 362, 374 (1851). See also W.
Wood, It Wasn’t an Accident: The Tribal Sovereign Immunity
Story, 62 Am. U. L. Rev. 1587, 1640 (2013) (Wood).
While venerable, tribal immunity—like its
state and foreign counterparts—is not immutable. The federal
government can abrogate it, at least as far as its fonts of power
let it. See Santa Clara Pueblo
, 436 U. S., at
58–59; cf. Brackeen
, 599 U. S., at ___ (opinion
of Gorsuch, J.) (slip op., at 31). But the choice to abrogate
tribal immunity is fundamentally political in nature. It is a
choice that therefore belongs to Congress, the “department
which can modify [the law] at will,” and not the Judiciary,
the “department which can pursue only the law as it is
v. United States
, 8 Cranch 110,
129 (1814) (Marshall, C. J., for the Court). Recognizing the
Constitution’s division of responsibility, this Court has
long left all decisions about tribal and other sorts of sovereign
immunity “in Congress’s hands.” Michigan
v. Bay Mills Indian Community
, 572 U.S.
, 789 (2014).
Because “erroneous abrogation[s]” of
immunity risk inter-sovereign conflicts and reprisals, this Court
employs an additional interpretive guardrail—“a clear
statement requirement designed to ensure that the political
branches acted knowingly and intentionally” in divesting
sovereigns of their legal entitlements. A. Bellia & B. Clark,
The Law of Nations as Constitutional Law, 98 Va. L. Rev. 729,
792–793 (2012). Under this approach, we will not read a
statute to abrogate immunity “if any other possible
construction remains.” Murray
v. Schooner Charming
, 2 Cranch 64, 118 (1804); see also, e.g.,
Financial Oversight and Management Bd. for P. R.
Centro De Periodismo Investigativo, Inc.
, 598 U. S.
___, ___ (2023) (slip op., at 1). That goes for Tribes just as it
goes for other sovereigns; it is an “enduring principle of
Indian law” that we “will not lightly assume that
Congress in fact intends to undermine Indian” sovereignty
absent pellucid evidence to the contrary. Bay Mills
U. S., at 790.
All this explains the now-familiar
clear-statement rule that this Court has endorsed on countless
occasions. If Congress wishes to abrogate tribal immunity, its
“decision must be clear.” Ibid
. And the
Legislature must “unequivocally express” its decision
in the text of a statute. C & L Enterprises
U. S., at 418 (internal quotation marks omitted). Under that
rule, “[a]ny ambiguities in the statutory language are to be
construed in favor of immunity.” FAA
, 290 (2012). Keep that hard-to-meet standard in mind. We
will return to it as we make our way through the statutory text
driving today’s dispute.
The Bankruptcy Code stipulates that,
“notwithstanding an assertion of sovereign immunity,
sovereign immunity is abrogated as to a governmental unit to the
extent set forth in this section.” §106(a). That
language, this Court has previously held, signals a clear intent to
abrogate sovereign immunity. See Central Va. Community
, 546 U.S.
, 379 (2006). But as to which sovereigns? The answer to that
question lies elsewhere in the Bankruptcy Code. “The term
‘governmental unit,’ ” it says, “means
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.” §101(27).
That is a lot of words. For present purposes,
however, only the last five matter: “other foreign or
domestic government.” No one argues any of the other clauses
could potentially refer to Tribes. We can further winnow down the
options from there. No one thinks Tribes qualify as
“foreign . . . government[s].” That
leaves only two possibilities. Tribes could qualify as
governments’ ”—respondent’s lead
argument. Tr. of Oral Arg. 41. Or the phrase “other foreign
or domestic government,” read as a whole, could mean
“any and every government”—respondent’s
backup argument and the one the Court adopts today. Ante,
4. Neither possibility is the slam dunk our familiar
clear-statement rule requires. Consider each in turn.
Start with the “domestic
government” possibility. At the time Congress adopted the
provisions of the Bankruptcy Code at issue before us, the word
“domestic” carried only two potentially relevant
meanings. It could mean spatially
within the territorial confines of the
United States. Or it could mean politically
a subpart of the United States.
Contemporary definitions support each of those possibilities and
only those possibilities. See, e.g.,
Random House Dictionary
of the English Language 581 (2d ed. 1987) (“of or pertaining
to one’s own or a particular country as apart from other
countries”); American Heritage Dictionary 416 (2d College ed.
1982) (“[o]f or pertaining to a country’s internal
If we were to read the term only in its spatial
sense, as the First Circuit did below and respondent urges us to
do, it makes some sense to speak of Tribes as
“domestic.” See In re Coughlin
F. 4th 600, 606 (2022). These days, tribal jurisdiction
usually falls within the United States’ territorial
bounds—although that was not true for most of the
Nation’s history, and became so only after the West was won.
M. Fletcher, Tribal Consent, 8 Stan. J. Civ. Rights & Civ. Lib.
45, 55, n. 63 (2012). Of course, usually does not mean always.
Even to this day, all three branches of government struggle to
address the status of Tribes that straddle our Nation’s
borders. See, e.g.,
8 U. S. C. §1359 (setting
special immigration rules for “American Indians born in
Canada”); 22 CFR §42.1(f ) (2022) (similar);
Matter of Yellowquill
, 16 I. & N. Dec. 576,
577–578 (BIA 1978) (interpreting other provisions to not
apply to Canada-born “American” Indians); Akins
380 F. Supp. 1210
, 1218–1222 (Me. 1974) (similar).
Evidently, our neighbor to the north has encountered similar
difficulties. See R.
, 2021 SCC 17
(analyzing traditional cross-border hunting rights).
Focusing only on the spatial meaning of
“domestic,” however, would miss an obvious point. When
it comes to the status of governments, this Court has long
recognized that geography takes a backseat. Whether a government
qualifies as “domestic” instead usually depends on
“the political relation in which one government or country
stands to another”; the term has “no relation to local,
geographical, or territorial position.” Cherokee
, 5 Pet. 1, 55 (1831) (Thompson, J.,
dissenting); see also id.,
at 16–20 (Marshall,
C. J., for the Court). At minimum, this line of thinking
leaves open a reasonable possibility that Congress in §101(27)
meant the term “domestic” in its political (not
geographic) sense. Accordingly, for respondent’s primary
argument to succeed, he must show that the political
relationship between Indian Tribes and the United States is such
that the term “domestic government” clearly
That is a burden respondent cannot carry.
Properly understood, Indian Tribes “occupy a unique
status” that is neither politically foreign nor domestic.
National Farmers Union Ins. Cos.
v. Crow Tribe
, 851 (1985). Significant evidence supports this
understanding. Start with the text of the Constitution. Its terms
appear to “place Indian [T]ribes in an intermediate category
between foreign and domestic states.” Z. Price, Dividing
Sovereignty in Tribal and Territorial Criminal Jurisdiction, 113
Colum. L. Rev. 657, 670 (2013) (Price). At least two
provisions illustrate as much. One is the Commerce Clause, which
gives Congress the power to regulate “Commerce”
“with foreign Nations,” “among the several
States,” and “with the Indian Tribes.” Art. I,
§8, cl. 3. The inclusion of that third Commerce Clause
power suggests that Tribes were not reach- able either by
Congress’s foreign commerce power or by its domestic
(interstate) commerce power. More obscure but no less probative is
the Constitution’s exemption from the apportionment formula
of all “Indians not taxed.” Art. I, §2,
cl. 3; Amdt. 14, §2. That choice recognizes that Tribes
are not fully “domestic” to the United States, and
instead stand “separate from the polity.” Price
These provisions, too, reflected a widely shared
understanding about the sovereign status of Tribes at the founding.
As Secretary of War Henry Knox put it in a letter to President
Washington, the Tribes were in many ways akin to “foreign
nations,” and not part “of any particular
[S]tate.” Letter to G. Washington (July 7, 1789), in 3 Papers
of George Washington: Presidential Series 134, 138 (D. Twohig ed.
1989). Consistent with this understanding, before 1871 the United
States (and, prior to that, Great Britain) chiefly managed tribal
relations by way of treaty. Entering into those treaties
“admit[ted]” that the Tribes “rank among those
powers who are capable of making treaties.” Worcester
6 Pet., at 559. Governments do not normally deal with politically
“domestic” authorities in that manner. See,
e.g., Ex parte Crow Dog
, 572 (1883) (linking Tribes’
“ ‘capacity to make treaties’ ”
with their unique
“ ‘semi-independent’ ” status,
allowing them to control “ ‘their domestic
government’ ” (quoting United States
, 94 U.S.
, 617 (1877))); The Cherokee Tobacco
, 11 Wall. 616,
622 (1871) (Bradley, J., dissenting) (similar).
This Court’s earliest Indian-law
jurisprudence offers more evidence along the same lines. In
, “three distinct
views of tribal sovereignty emerged” on the question whether,
“for purposes of Article III,” the Cherokee Nation was
a “foreign nation.” R. Tsosie, Tribalism,
Constitutionalism, and Cultural Pluralism: Where Do Indigenous
Peoples Fit Within Civil Society?, 5 U. Pa. J. Const. L. 357,
360–361 (2003). In the lead opinion for the Court, Chief
Justice Marshall emphasized that “[t]he condition of the
Indians in relation to the United States is perhaps unlike that of
any other two people in existence.” 5 Pet., at 16. For the
limited purposes of Article III, Chief Justice Marshall
rejected the view that the Tribes could, “with strict
, be denominated foreign nations.” Id.
17 (emphasis added). Instead, he suggested, “[t]hey may,
, be denominated domestic
dependent nations.” Ibid.
(emphasis added). But
notably, he did not describe the Tribes as “domestic”
for all purposes. To the contrary, he deliberately chose the term
, stressing also that “[i]n the general,
nations not owing a common allegiance are foreign to each
, at 16. In that way, he said, “the
relation of the Indians to the United States is marked by peculiar
and cardinal distinctions which exist no where else.”
Read in context, the term “domestic dependent
nations” is really a term of art meant to capture
Tribes’ “hybrid position” between “foreign
and domestic states.” Price 670.
The remaining opinions in Cherokee Nation
underscore this message. Justice Johnson, concurring, rejected the
moniker “foreign state.” 5 Pet.,
at 27. But he
also thought it “very clear that the [C]onstitution neither
speaks of ” Tribes “as [S]tates or foreign states,
but as just what they were, Indian [T]ribes; an anomaly unknown to
the books.” Ibid.
Justice Baldwin, also concurring,
rejected the idea that Tribes were “states, foreign or
at 43 (emphasis added). And Justice
Thompson, joined by Justice Story, dissented on the grounds that he
thought the Cherokee had a chiefly “foreign
character,” all things considered. Id.,
at 55. All
told, this Court split sharply as to the best way to characterize
the legal status of Tribes in relation to the United States. But if
there is one thing all Members of the Court could have agreed on,
perhaps it would be this: Neither the term “foreign
government” nor the term “domestic government”
adequately captures the Tribes’ unique legal and political
This Court’s later decisions only give
further reason to doubt that Tribes are clearly “domestic
government[s].” No less than this Court’s first case
analyzing tribal sovereign immunity, Parks
rested on the view that each Tribe remains “
respects” (but not all) “a foreign
independent nation.” 11 How., at 374 (emphasis added); see
Wood 1640 (describing Parks
as “the first case of
record involving tribal immunity”). That language not only
weighs against treating Tribes as domestic governments. It does so
the context at issue here—sovereign
immunity. If we can assume that Congress “is aware of this
Court’s relevant precedents,” the notion that the
Bankruptcy Code abrogates tribal sovereign immunity is sunk.
Ysleta del Sur Pueblo
, 596 U. S. ___,
___ (2022) (slip op., at 13). That seems like an especially safe
assumption here, given that Congress adopted its most recent
version of §106 after this Court—twice—held that
the provision failed our clear-statement rule as to other
sovereigns. See United States
v. Nordic Village,
, 503 U.S.
, 33–39 (1992); Hoffman
v. Connecticut Dept.
of Income Maintenance
, 492 U.S.
, 98–104 (1989) (plurality opinion). That the
respondent in this case nowhere discussed Parks
briefing (and had nothing to say about it at argument, see Tr. of
Oral Arg. 43) speaks volumes.
Of course, respondent has bigger problems than
just the words
this Court has used. He must contend with the
reality of this Court’s Indian-law jurisprudence, which in
practice has consistently treated Tribes as a “constitutional
hybrid, resembling [S]tates in certain respects and foreign nations
in others.” Price 670–671; see generally G. Ablavsky,
Sovereign Metaphors in Indian Law, 80 Mont. L. Rev. 11 (2019).
For example, while Congress has certain legislative authority over
tribal lands, the Tribes themselves need not abide by the Bill of
Rights or the Fourteenth Amendment. See Oliphant
, 435 U.S.
, 194, n. 3 (1978) (citing Talton
, 163 U.S.
(1896)). Instead, they are governed by unique regimes of
civil and criminal jurisdiction involving overlapping
“federal, tribal, and state authorities” unlike those
employed anywhere else. Oklahoma
597 U. S. ___, ___, and n. 3 (2022) (Gorsuch, J.,
dissenting) (slip op., at 15, and n. 3). And their unique
character makes their brand of sovereign immunity “not
congruent” with the immunity other sovereigns enjoy. Three
, 476 U. S., at 890.
Nor are Tribes alone in standing outside the
foreign/domestic dichotomy. Take the Court’s treatment of the
so-called Insular Territories. It depends entirely on the idea that
those Territories are neither foreign nor domestic, but instead
unique entities “foreign to the United States, in a domestic
, 182 U.S.
, 341 (1901) (White, J., concurring); see also C. Burnett
& B. Marshall, Between the Foreign and the Domestic: The
Doctrine of Territorial Incorporation, Invented and Reinvented 30,
n. 3, in Foreign in a Domestic Sense: Puerto Rico, American
Expansion, and the Constitution (2001) (noting that the Court has
“unanimously and expressly adopted” that view). No one
could accuse me of having fondness for the Insular Cases. See
v. Vaello Madero
, 596 U. S. ___,
___ (2022) (Gorsuch, J., concurring) (slip op., at 1). But their
existence is fatal for respondent’s theory. After all, the
Insular Territories are a close comparator to Tribes and many have
considered “both [T]ribes and [T]erritories [to] share the
same status as ‘ “foreign to the United States, in
a domestic sense.” ’ ” H. Babock, A
Possible Solution to the Problem of Diminishing Tribal Sovereignty,
90 N. D. L. Rev. 13, 57 (2014). Tellingly, too, Congress
abrogated any immunity Territories may enjoy under
the Bankruptcy Code. §101(27). Yet it did no such thing when
it came to the Tribes.
Respondent has no real answer to any of this. He
cites some cases in which this Court reprised the “domestic
dependent nations” language from Cherokee Nation
Brief for Respondent 21 (citing cases). But as we have seen, that
language actually stands for a view of Tribes flatly inconsistent
with the “domestic government” characterization. Taking
away those examples leaves respondent with thin gruel. He directs
us to United States
, 18 How. 100, 103 (1856).
But that case observed only that “Cherokee
” counts as “domestic
(emphases added). The
decision thus plainly used the term “domestic” only in
its spatial sense. The same goes for Blatchford
Village of Noatak
, 501 U.S.
(1991). There, this Court recognized that Tribes are only
“in some respects” “more like States than foreign
, at 782. Read with this context in
mind, its statement that “[t]hey are, for example,
domestic,” referred only to their spatial location.
Confirming this point, the rest of the paragraph
contrasted the Tribes’ physical “domesticity”
with features of their political relationship with the United
More fundamentally, even granting respondent
these examples would not do him any good. Just think of the
balancing task we would face. On one side of the scale, we would
have a couple of scattered quotes (cherry-picked from over two
centuries of Indian-law jurisprudence) bandying about the word
“domestic” when describing certain features
Tribes. On the other side of the scale, we would have the text and
history of the Constitution, supported by more (and better)
examples of this Court’s jurisprudence fashioning rules of
law treating Tribes as sui generis
. Faced with all that
countervailing authority, the best respondent could realistically
hope for is that we declare §101(27) a jump ball. And under
our clear-statement rule, a jump ball is as good as a possession
arrow favoring the party opposing the abrogation of sovereign
Taking the “domestic government”
possibility off the table leaves only one other. Respondent falls
back on the idea that “foreign or domestic” is really
just shorthand for “every government under the Sun.”
The Court relies solely on this reading, holding that §102(27)
“unequivocally abrogates the sovereign immunity of any and
every government that possesses the power to assert such
at 4. Getting to that conclusion from
the statutory text requires two interpretive moves. First, the
reader must treat the words “foreign or domestic” as a
single, undifferentiated clause (rather than as a disjunctive
grouping of descriptors). Second, the reader must take that
undifferentiated clause to mean “anywhere and
everywhere.” Each move is plausible; neither is
“clear.” And a problem with either is game over.
Start with the first move. Respondent would have
us read “foreign or domestic” as a unitary clause
expressing a single, shared idea. This is what linguists might call
a hendiadys—“two terms separated by a conjunction
[that] work together as a single complex expression.” S.
Bray, “Necessary and Proper” and “Cruel and
Unusual”: Hendiadys in the Constitution, 102 Va. L. Rev.
687, 688 (2016). On occasion, English employs that sort of
construct. But those occasions are the exceptions, not the rule.
Nor is it clear that is what we have here. As even respondent
concedes, “or” in “its ordinary use”
instead indicates that “ ‘the words it connects
are to “be given separate
meanings.” ’ ” Brief for Respondent 23
(quoting United States
, 571 U.S.
, 45–46 (2013)). A perfectly natural reading, then,
would ask whether Tribes clearly qualify as
“foreign . . . government[s]” or
as “domestic government[s].” And because the answer is
“no” on both scores (for the reasons already laid out
above) the language flunks the clear-statement rule.
The second move has issues too. The case for
treating “foreign or domestic government” as synonymous
with “any government anywhere” rests on the premise
that the terms are “two extremes,” so that—by
invoking both—Congress meant to cover every part of an
all-inclusive spectrum. Ante,
at 5. The Court analogizes to
the phrase “near and far,” which it argues sometimes
means “all over the map.” Ante,
But the premise here is faulty and the analogy inapt.
“Near” and “far” may well be “two
extremes”—one would not speak of a location being
far at the same time, for example. When
it comes to sovereigns, however, the terms “foreign”
and “domestic” do not share that same quality. Rather,
as we have seen, an extensive tradition supports treating certain
sovereigns—Tribes among them—as sui generis
entities falling outside the foreign/domestic dichotomy. That
tradition is fatal under the clear-statement rule.
How does respondent contend with this problem?
At argument, he retreated from his briefing and relied instead on a
provision of the Bankruptcy Code stating that, for purposes of that
Code, “ ‘or’ is not exclusive.” Tr. of
Oral Arg. 41 (citing §102(5)). From this, respondent reasoned,
the Bankruptcy Code abrogates tribal immunity because everyone can
agree at least that Tribes bear some
qualities of both
The provision respondent cites simply does not
do what he seems to think it does. In common usage, the term
“or” can carry two meanings. The first is exclusive. It
requires full satisfaction of one—and exactly
one—listed condition. The second is inclusive. It requires
full satisfaction of at least one listed condition. All
§102(5) does is favor the latter meaning for purposes of the
Bankruptcy Code. Sound complicated? Just look at an example.
Suppose you tell your child that he can get a pet so long as it is
“small or a dog.” The child can choose a small animal
(like a hamster) or a large dog (like a mastiff ). But can the
child also choose a small dog? If the “or” is inclusive
(as respondent argues it is here), the answer is “yes.”
If it is exclusive, the answer is “no.” Critically,
however, neither reading covers a medium-sized aardvark. Such an
animal may be somewhat
small and somewhat
but two near misses do not add up to a hit. This is a simple point
but an important one. Regardless of whether “or” is
used inclusively or exclusively, one
of the input conditions
must be satisfied.
With this point in mind, respondent’s
reading collapses. To see why, consider another example. Suppose
you are a houseguest, and your host invites you to “help
yourself to the chocolate or vanilla ice cream in the
freezer.” Upon opening the freezer, you find three
tubs—vanilla, chocolate, and Neapolitan. For argument’s
sake, too, let’s say the last tub also has a sticky note:
“Do not eat without clear permission.” Which ice cream
can you take? If the host meant “or” exclusively, you
may take either
chocolate or vanilla, not both. If the host
meant it inclusively, you may scoop some of each. In neither event,
however, would you have permission to take the Neapolitan ice
cream—especially given the cautionary note. As a unique
composite, it does not clearly satisfy either of the necessary
conditions. So too here. Tribes may have some
both domestic and foreign governments, but they do not clearly
qualify as either, and they have some features found in neither.
Accordingly, §102(5) does nothing to rescue respondent’s
If anything, §102(5) only sheds light on
what the catchall term “other foreign or domestic
government” does cover. That phrase sweeps up, as Chief Judge
Barron explained in dissent below, certain “otherwise
excluded, half-fish, half-fowl governmental entities like
authorities or commissions that are created through interstate
compacts” (“ ‘other . . .
domestic government[s]’ ”) and “the joint
products of international agreements”
(“ ‘other foreign . . .
government[s]’ ”). 33 F. 4th, at 615. Without
the catchall, entities of these sorts could potentially fall
through the cracks. Tribes, by contrast, are among the most
significant entities wielding sovereign immunity. They are a unique
form of government—and they alone are nowhere mentioned.
The Court offers two responses. Above the line,
it asks why Territories are encompassed within
§101(27)’s immunity-abrogation provision if they share
the same status of Tribes—neither foreign nor domestic.
, at 13.
The answer, of course, is that Congress
Territories; it did not do the same for
Tribes. Nor do I see how Congress’s choice to include
Territories supports the Court’s suggestion that the term
“other foreign or domestic government” clearly
covers all governments. To the contrary, under the Court’s
interpretation of that term, the express inclusion of Territories
becomes curious surplusage. And to the extent the Court thinks
Congress mentioned Territories just to be doubly clear that the
term “other foreign or domestic government” really does
governments—adopting a kind of
belt-and-suspenders approach—isn’t it odd that Congress
left one of the most notable types of sovereigns (a key part of its
“belt”) at home?
Below the line, the Court simply asserts
(without analysis or support) that “the terms
‘foreign’ and ‘domestic’ are two poles on a
at 12–13, n. 7. It does
not grapple, however, with the many decisions of this Court
discussed above that contradict that premise—and that do so
in the precise context of Indian law (in general) and sovereign
immunity (in particular). See supra
, at 6–11. Nor does
it grapple with the reality that, even if the terms were two poles
on a spectrum, many Justices of this Court have suggested that
Indian Tribes do not fall along that continuum at all and are
instead “just what they [are], Indian [T]ribes.”
, 5 Pet.,
at 27 (Johnson, J.,
concurring). Others of course have disagreed. But that disagreement
is no help to the Court under our clear-statement rule. It is
dispositive the other way.
Unable to demonstrate that the statute’s
terms clearly abrogate tribal immunity, respondent and the Court
stress that §101(27) as a whole “exudes
at 5. That is obviously true
but not obviously helpful. Really, the express inclusion of so many
other types of sovereigns in the Bankruptcy Code’s abrogation
provision only deepens the mystery why Tribes are nowhere
mentioned. Normally, after all, when Congress includes so many
items within “ ‘[an] associated
group,’ ” we assume the omission of another means
that it has been deliberately
“ ‘exclude[d].’ ” Chevron
U. S. A. Inc.
, 536 U.S.
, 80 (2002). Nor, for that matter, has this Court ever held
that a statute’s general atmospherics can satisfy the
clear-statement rule when the text itself comes up short.
The Court also invokes the Bankruptcy
Code’s purposes. It contends that Congress designed the Code
in part to “offe[r] debtors a fresh start,” that its
provisions were intended to “sweep broadly,” and that
petitioners’ view of the statute could “upen[d] the
policy choices that the Code embodies.” Ante,
6–8. In a similar vein, the Court wonders what reason
Congress possibly could have had for excluding Tribes from its
abrogation provision. Ibid.
These are fair questions and
concerns. Some of them I share. But they, too, have no place in a
case like this one. For purposes of satisfying a clear-statement
rule, attempts to “construe” §106 “in light
of the policies underlying the Bankruptcy Code are
, 492 U. S., at 104
(plurality opinion). Perhaps Members of Congress had good reasons
for failing to include Tribes in §101(27). Perhaps their
decision reflected a measured political compromise. Or perhaps the
issue of tribal immunity simply never came up. In all events, the
result is the same. Absent some clear textual indication, there can
be no abrogation.
Setting aside those policy concerns leaves the
Court with a methodological one. It fears adopting my approach
could transmute our clear-statement rule into some sort of
magic-words test. Ante
, at 10. I do not see how it could.
Congress could identify Tribes in any number of unmistakable
ways—“Indians,” “Native Americans,”
“Indigenous Peoples,” or even (as we have seen)
“domestic dependent nations.” Congress has had no
trouble using language like that in plenty of other statutory
contexts. See, e.g.,
7 U. S. C. §8310; 42
U. S. C. §8802(17); 49 U. S. C.
§5121(g). Alternatively, Congress could identify Tribes by
description—for instance, “any other government that
operates, in whole or in part, within the territorial bounds of the
United States.” See 33 F. 4th, at 622 (Barron,
C. J., dissenting). Alternatively still, Congress could
sovereign immunity through some unequivocal
statement to that effect—using, for example, the
Court’s own formulation, “any and every
, at 4. The only thing Congress
cannot do is use “oblique or elliptical language” to
“supply a clear statement.” West Virginia
, 597 U. S. ___, ___ (2022) (Gorsuch, J.,
concurring) (slip op., at 13) (internal quotation marks and
alterations omitted). Because that is—at best—what the
Bankruptcy Code provides, I respectfully dissent.