Episode description

Welcome to Supreme Court Opinions. In this episode, you’ll hear the Court’s opinion in Lac du Flambeau Band of Lake Superior Chippewa Indians v Coughlin.

In this case, the court considered this issue: Does the Bankruptcy Code unequivocally abrogate tribal sovereign immunity?

The case was decided on June 15, 2023. 

The Supreme Court held that The Bankruptcy Code unequivocally abrogates the sovereign immunity of all governments, including federally recognized Indian tribes. Justice Ketanji Brown Jackson authored the majority opinion of the Court.

To abrogate sovereign immunity, Congress must make its intent to abrogate “unmistakably clear in the language of the statute.” The statute at issue here contains such unmistakably clear language.

First, 11 U.S.C. § 106(a) expressly abrogates the sovereign immunity of “governmental units” for certain enumerated purposes. Section 101(27), defines “governmental unit” as “United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency, or instrumentality of the United States . . . , a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic government.” This definition “exudes comprehensiveness from beginning to end,” and other provisions of the Bankruptcy Code support this understanding as well. Federally recognized tribes are “indisputably” governments, so the § 106(a) unequivocally abrogates their sovereign immunity.

Justice Clarence Thomas authored an opinion concurring in the judgment. Justice Thomas reiterated an argument he has made before that to the extent that tribes possess sovereign immunity at all, that immunity does not extend to “suits arising out of a tribe’s commercial activities conducted beyond its territory.”

Justice Neil Gorsuch authored a dissenting opinion arguing that the Court’s clear-statement rule requires the statute to expressly mention Indian tribes in order to abrogate their sovereign immunity. Because the Bankruptcy Code does not, he would hold that it does not abrogate federally recognized Indian tribes’ sovereign immunity.

The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.