Lac du Flambeau Band v. Coughlin (22-227)
argument 22-227Lac du Flambeau Band v. Coughlin
Supreme Court of the United States
58 min
8 speakers
8 chapters
transcribed 8 days ago
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Transcript
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What is the central question the Court is asked to decide in Lac du Flambeau Band v. Coughlin?
We'll hear argument next in case twenty two two two seven, Lac du Flambeau versus um Poplin. Mr Sharp.
Mr Chief Justice, and may it please the Court, the question presented is whether Congress abrogated sovereign immunity with respect to damages actions against Indian tribes in the bankruptcy code. The code provisions specifying the governmental units whose immunity is abrogated, Section 10127, names individually the United States, States, and foreign states, as well as the departments, agencies, and instrumentalities thereof, followed by a residual clause, quote, or other foreign or domestic government. That definition, like the bankruptcy code more broadly, does not refer to Indian tribes specifically. The most obvious and natural means of including them, as Congress has done in every other statute abrogating tribal sovereign immunity.
Accordingly, the best construction is that tribes are not included. But this court need not decide the best construction. All parties agree that the clear statement rule governs and because Because of that, the question is whether Congress has unequivocally included tribes so as to abrogate their sovereign immunity. In other words, as this court has framed the inquiry, is there any plausible way to read the provision as omitting tribes? Petitioners easily surmount that bar. The First Circuit majority's reliance on the generic phrase other domestic government to sweep in tribes and apparently only tribes rests on a syllogistic interpretation of the Terms domestic and government in isolation. Even if other domestic government could reasonably be construed to refer to tribes despite their sui generis nature, the provision as a whole doesn't come close to providing the perfect confidence that this court requires for abrogation.
Indeed, Congress has long treated tribes differently than the governmental entities enumerated in Section 10127. Including under the federal bankruptcy statute preceding the code, Congress gave no indication, let alone an unmistakably clear one, that it newly intended to treat the tribes the same in the current code. I welcome the court court's questions.
Uh The um so in your thinking and argument, Congress would actually have to say trial.
Well, Your Honor, I think we could come up with hypothetical formulations that Congress has never used in order to make it abundantly clear that they're that they're want to cover Indian tribes, but those would be hypothetical. And I think it's fair for this court to take into account two undisputed realities. One is Congress has never done that before in the history of this country. That is, abrogate the sovereign immunity of tribes without mentioning tribes. do it, you could imagine, in some formulation, but presumably that formulation would not use the standard locution that Congress has always used in r when referring to the Big Four. And by the Big Four I mean the United States, States.
I I understand that argument, but can you think of any other government, governmental uh unit that would be required to be named specifically, as you seem to suggest the tribes would have to be?
Well, again, Your Honor, it's normally the practice. When the when Congress is abrogating state sovereign immunity, it mentions states. I know, but states are in
states have a different uh They have sovereign immunity that has constitutional basis. But
Your Your Your Honor, just to respond to that, this Court has been abundantly clear. The United States concedes it, respondents concede it, that it is the same clear statement rule that applies for States, the United States, and Indian tribes. And I know that that uh some justices on the court have disagreed with that, but that's currently the law and the other side accepts it.
Beyond the uh your clear statement rule, can you give me an example of any other government that falls outside of the uh catch all phrase?
uh that would would fall within the catch all phrase? Or that would
be excluded from it. It seems to capture all governments.
Oh sure, Your Honor.
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Chapters
8 chapters
1
What is the central question the Court is asked to decide in Lac du Flambeau Band v. Coughlin?
0:01–9:51
2
How does the clear‑statement rule apply to Congress’s intent to abrogate tribal sovereign immunity?
9:51–18:29
3
Why does the historical 1938 bankruptcy statute matter for interpreting the 1978 code’s treatment of tribes?
18:29–26:21
4
What examples (IMF, World Bank, etc.) illustrate the scope of the “other foreign or domestic governments” clause?
26:21–35:06
5
Why did Congress list the United States, states, and foreign governments but omit Indian tribes in the residual clause?
35:06–47:15
6
How do the facts about the tribe’s Len Green loan business affect the sovereign‑immunity analysis?
47:15–54:44
7
What are the three theories offered for why Congress might have excluded tribes from the abrogation provision?
54:44–57:24
8
What conclusion does the Court reach about whether Indian tribes are covered by the bankruptcy code’s abrogation of sovereign immunity?
57:24–58:12