Legal Alerts/Details

Supreme Court Determines Section 106(a) of the Bankruptcy Code Waives Sovereign Immunity of Native American Tribes

June 22, 2023
  1. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. ––––, ––––, No. 22-227, 2023 WL 4002952, at *1 (June 15, 2023).

  2. Petition for Writ of Certiorari at (i), Lac Du Flambeau Band of Lake Superior Chippewa Indians et al. v. Coughlin, No. 22-227 (September 8, 2022) (“QUESTION PRESENTED: “Whether the Bankruptcy Code expresses unequivocally Congress’s intent to abrogate the sovereign immunity of Indian tribes.”). A copy of the Petition for Writ of Certiorari can be obtained at:

  3. Bill Rochelle, Rochelle’s Daily Wire, AMERICAN BANKRUPTCY INSTITUTE (April 26, 2023),

  4. In re Coughlin, 33 F.4th 600, 603 (1st Cir. 2022), cert. granted sub nom. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 214 L. Ed. 2d 382, 143 S. Ct. 645 (2023), and aff'd sub nom. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, No. 22-227, 2023 WL 4002952 (U.S. June 15, 2023).

  5. Coughlin, 599 U.S. at ––––, 2023 WL 4002952, at *2; see also id. at *4 (“The central question before us is whether the abrogation provision in § 106(a) and the definition of “governmental unit” in § 101(27), taken together, unambiguously abrogate the sovereign immunity of federally recognized tribes.”).

  6. Id. at *2.

  7. Id. at *4.

  8. Id.

  9. Id. (citing Taylor v. United States, 579 U.S. 301, 305–306, 136 S. Ct. 2074 (2016) (characterizing as “unmistakably broad” a criminal statute defining “commerce” to include a list of specific instances in which the Federal Government would have jurisdiction, followed by a broad residual phrase); Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc., 596 U. S. ––––, ––––, n. 1, 142 S. Ct. 1968, 1973, n. 1 (2022) (similar)).

  10. Id.

  11.  Id.; see also id. at *5 (“Congress did not cherry-pick certain governments from § 101(27)’s capacious list and only abrogate immunity with respect to those it had so selected. Nor did Congress suggest that, for purposes of § 106(a)’s abrogation of sovereign immunity, some types of governments should be treated differently than others. Instead, Congress categorically abrogated the sovereign immunity of any governmental unit that might attempt to assert it.”).

  12. Id. at *6.

  13. Id.

  14. Id. at *9 (THOMAS, J., concurring) (citing Michigan v. Bay Mills Indian Community, 572 U.S. 782, 815 (2014) (dissenting opinion)).

  15. Id. at *9 (THOMAS, J., concurring).

  16. Id. (citing Upper Skagit Tribe v. Lundgren, 584 U.S. ––––, ––––, 138 S. Ct. 1649, 1662 (2018) (THOMAS, J., dissenting)).

  17. Id. at *10 (THOMAS, J., concurring).

  18. Id. at *10 (GORSUCH, J., 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.’”) (quoting In re Greektown Holdings, LLC, 917 F.3d 451, 460 (6th Cir. 2019)).

  19. Id. at *10 (GORSUCH, J., dissenting).

  20. Id. at *11 (GORSUCH, J., dissenting).

  21. Id. at *17 (GORSUCH, J., dissenting).

  22. Id. at *17 (GORSUCH, J., dissenting) (quoting West Virginia v. EPA, 597 U. S. ––––, ––––, 142 S. Ct. 2587, 2623 (2022) (GORSUCH, J., concurring).

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