From around the internet

Textualism

I have previously written in this column about the U.S. Supreme Court case Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin. You can review that post here. The question raised in the case was whether the U.S. Bankruptcy statute, as written, includes Indian Tribes. The case, I noted, was poised to turn on textualist principles. In fact, the U.S. Supreme Court released the opinion yesterday, and includes an extensive textualist analysis.

The U.S. Bankruptcy code purports to apply to all creditors, including all governments. The Code broadly defines “government,” but does not specifically state “Indian Tribe.” The Plaintiff Indian Tribe, who is a creditor of Coughlin, argued that because Congress could have specifically listed “Indian Tribe” in the statute and didn’t, they are exempt from the U.S. Bankruptcy laws. If the Court agreed, this would free the Tribe to pursue collection of the debt Coughlin owed, even though he had filed for bankruptcy.

The U.S. Supreme Court majority opinion found that the bankruptcy code does apply to Indian Tribes. The Court stated, citing precedent, that for the bankruptcy law to apply to governmental units, Congress must make it unmistakably clear that it does so. The Court noted, however, that Congress is not required to use specific words. In the code, said the Court, Congress “exudes comprehensiveness” when defining governmental unit. They point out that Congress lists a comprehensive description of government features, and ends with a catchall phrase, “all foreign and domestic governments.” This, according to the Court, makes it clear that everyone, including Indian Tribes, are covered.

Next, the Court, diverting from a textualist approach, discusses legislative intent. The Court says that the bankruptcy code would not function unless all creditors are included, including Indian Tribes. Therefore, according to the Court, Congress must have intended to include Indian Tribes. A proper textualist would argue, however, that it does not matter what Congress intended. All that matters is what they said in the text.

Justice Gorsuch, a fine example of a textualist, was the lone dissent in the case, and he did so arguing textualism and originalism. According to Justice Gorsuch, “[U]ntil 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.” Justice Gorsuch concedes that the majority’s ruling rests on a plausible standard, but states “plausible is not the standard our tribal immunity jurisprudence demands.”

Justice Gorsuch continues, “[R]espectfully, I do not think the language here does the trick. The phrase “other foreign or domestic government” could mean what the Court suggests: every government, everywhere. But it could also mean what it says: every “other foreign . . . government”; every “other . . . domestic government.” And properly understood, Tribes are neither of those things. Instead, the Constitution’s text—and two centuries of history and precedent—establish that Tribes enjoy a unique status in our law. Because this reading of the statute is itself (at worst) a plausible one, I would hold that the Bankruptcy Code flunks this Court’s clear statement rule and reverse.”

Justice Thomas, also a fine textualist, it should be noted, joined the majority only in a concurring opinion. His opinion was that the code applied in this instance because the Tribe was acting not as an immune sovereign here, but in a commercial capacity as the owner of a lending company doing business outside of its territory.

The bottom line here is, if you owe an Indian Tribe money you can file bankruptcy and include it as a creditor. Also, if you want to see textualist analysis at work, this is a good case to read.