Legal Alerts/Details

First Circuit Joins the Ninth Circuit by Holding That Section 106(a) of the Bankruptcy Code Waives Tribes’ Sovereign Immunity

May 19, 2022
Footnotes:
  1. Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055, 1061 (9th Cir. 2004). 
  2. In re Greektown Holdings, LLC, 917 F.3d 451, 460- 61 (6th Cir. 2019), cert. dismissed sub nom. Buchwald Cap. Advisors LLC v. Sault Ste. Marie Tribe, 140 S. Ct. 2638 (2020).
  3. Coughlin v. Lac du Flambeau Band of Lake Superior Chippewa Indians (In re Coughlin), No. 21-1153, 2022 WL 1438867, at *1 (1st Cir. May 6, 2022).
  4. Id. at *2.
  5. 11 U.S.C. § 106(a) provides:

    (a) Notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section with respect to the following:

    (1) Sections 105, 106, 107, 108, 303, 346, 362, 363, 364, 365, 366, 502, 503, 505, 506, 510, 522, 523, 524, 525, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 722, 724, 726, 744, 749, 764, 901, 922, 926, 928, 929, 944, 1107, 1141, 1142, 1143, 1146, 1201, 1203, 1205, 1206, 1227, 1231, 1301, 1303, 1305, and 1327 of this title.

    (2) The court may hear and determine any issue arising with respect to the application of such sections to governmental units.

    (3) The court may issue against a governmental unit an order, process, or judgment under such sections or the Federal Rules of Bankruptcy Procedure, including an order or judgment awarding a money recovery, but not including an award of punitive damages. Such order or judgment for costs or fees under this title or the Federal Rules of Bankruptcy Procedure against any governmental unit shall be consistent with the provisions and limitations of section 2412(d)(2)(A) of title 28.

    (4) The enforcement of any such order, process, or judgment against any governmental unit shall be consistent with appropriate nonbankruptcy law applicable to such governmental unit and, in the case of a money judgment against the United States, shall be paid as if it is a judgment rendered by a district court of the United States.

    (5) Nothing in this section shall create any substantive claim for relief or cause of action not otherwise existing under this title, the Federal Rules of Bankruptcy Procedure, or nonbankruptcy law.

  6. 11 U.S.C. § 101(27) (emphasis added).
  7. In re Coughlin, at *3.
  8. Id.
  9. Id.
  10. Id. at *4.
  11. Id. at *2.
  12. Id. at *4.
  13. Id. at *5 (citing FAA v. Cooper, 566 U.S. 284, 132 S. Ct. 1441 (2012)).
  14. Id. at *6 (citations omitted).
  15. Id.
  16. Id.
  17. Id. at *9.
  18. Id. at *10.
  19. Id. (Citing In re Greektown Holdings, LLC, 917 F.3d 451, 462 (6th Cir. 2019)).
  20. Id. at *19.
  21. Id. at *20.
  22. Bill Rochelle, Rochelle’s Daily Wire, American Bankruptcy Institute (May 10, 2022), https://www.abi.org/newsroom/daily-wire/circuits-more-deeply-split-on-waiver-of-sovereign-immunity-for-native-american (quoting Professor Jack F. Williams of Georgia State University College of Law).

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