ARGUMENT ANALYSIS

Justices dubious of creating “extra-special super-super clear statement rule” to exempt tribes from obligation to respect bankruptcy process

Monday’s arguments in Lac du Flambeau Band v. Coughlin revealed a bench deeply skeptical of the argument that Native American tribes should be exempt from the automatic stay of the Bankruptcy Code even though the federal and state governments are not.

The case involves an online payday lending operation of the Lac du Flambeau Band of Lake Superior Chippewa Indians. Brian Coughlin borrowed money from the Band’s lending operation. When he then filed for bankruptcy the Band ignored the Bankruptcy Code’s automatic stay and continued to attempt to collect. Coughlin was eventually hospitalized for attempted suicide – which, he says, was linked to the aggressive collection attempts. The Band argues that the relevant provision of the Bankruptcy Code is not clear enough to reach the Band as a tribe, even though the language extends that same automatic stay to the United States, the states, and any “other foreign or domestic government.”

The justices were dubious of the Band’s position from the earliest comments by Pratik Shah, the lawyer representing the Band. Justice Clarence Thomas interrupted Shah quickly to confirm that in Shah’s “thinking and argument, Congress would actually have to say ‘tribe’?” When Shah agreed, Thomas pressed him to identify “any other government, governmental unit, that would be required to be named specifically, as you seem to suggest the tribes would have to be?” For Thomas, like several of the justices, the statutory text plainly “seems to capture all governments.”

Chief Justice John Roberts next asked whether it would be enough if the statute simply referred to “every government” instead of listing numerous governments and then following with a catch-all. When Shah suggested that such phrasing would not be enough to reach Native American tribes, Justice Amy Coney Barrett quipped that “it sounds to me like you’re carving out an extra-special super-super clear rule for Indian tribes.” In the same vein, Justice Elena Kagan pointed to the court’s repeated statements that whatever “clear statement” might be required to abrogate sovereign immunity, “this is not a ‘magic words’ requirement. And I think that the difficulty for you is, aren’t you really making it into a magic words requirement?” For Kagan, if Congress actually had intended “to exclude Indian tribes, you wouldn’t have said ‘here are the governments, dah-dah, dah-dah, dah-dah, and everything else that we can think of.’” Barrett and Kagan’s resistance to Shah’s argument was encapsulated in their joint characterization of the statutory text as an attempt to “cover the waterfront” of possible governmental entities.

That is not to say that all of the justices’ comments opposed protection for the tribes. Kagan emphasized the oddity of the statute’s omission of tribes from the listed governments when they appear so commonly in the court’s abrogation cases. Justice Brett Kavanaugh seemed to take that point as seriously as any on the bench, as he pointed to “the historical practice … of Congress using ‘tribe’ when it wanted to include tribes.” Kavanaugh repeatedly suggested that the “backdrop” of historical practice produced a context against which “the failure to mention tribes [might] create at least some ambiguity,” which might be enough if Congress is required to “unambiguously abrogate” tribal immunity. Justice Ketanji Brown Jackson went even further, asking Gregory Rapawy, representing Coughlin, “why shouldn’t we require a clear indication that Congress actually considered the tribes?” For her, “if the idea is we want to make sure that Congress actually considered the entities that are being affected by this rule, we have evidence that they considered others because they listed them in the statute, and here tribes don’t appear, why isn’t that just the answer”?

Notwithstanding the reservations evidenced by a few of the justices, I do not think the court will find this a hard case. The comments criticizing the Band’s position were so pervasive that it is difficult to believe that Coughlin will not carry the day. For me, the only remaining question is whether any of the justices will dissent from that result.