Loosen Up: The Follies of Strict Construction as Applied to a Statutory Tribal Sovereign Immunity Waiver

Authors

Joseph M. Raimondi

Document Type

Note

Abstract

(Excerpt)

On February 9, 2020, Brian Coughlin attempted suicide, leading to an eleven-day stint at the hospital. He was experiencing “overwhelming stress, anxiety and lack of hope for a better life.” He had recently filed for bankruptcy, which normally triggers a stay that prevents creditors from engaging in “any act to collect, assess, or recover a claim against the debtor . . . .” However, one of Coughlin’s creditors, associated with a Native American tribe —the Lac Du Flambeau Band of Lake Superior Chippewa Indians (“the Band”)—believed that it did not have to comply with the stay by virtue of its sovereign immunity. Sovereign immunity prevents citizens from suing sovereign entities in the absence of a clear statement waiving it. Thus, the Band continued to pester Coughlin, which culminated in his suicide attempt. After leaving the hospital, he moved to enforce the stay and sought damages.

The case made its way to the First Circuit in May 2022. The court widened a pre-existing circuit split and held that the general wording of the sovereign immunity waiver in the Bankruptcy Code “unequivocally strips tribes of their immunity.” The Supreme Court affirmed the ruling on June 15, 2023, albeit on a different premise. Although the Supreme Court purported to be applying the clear statement rule strictly, this Note recognizes that the Court applied a looser construction of the rule, which provides a precedent for future courts to consider context and statutory purpose in their inquiries.

Part I addresses the legal history of tribes’ relationship with the federal government as well as the philosophy of the sovereign immunity doctrine. Part II addresses the now-resolved circuit split as to whether the Bankruptcy Code’s sovereign immunity waiver abrogates tribal sovereign immunity. Part III argues that a looser construction of the clear statement rule is beneficial in the tribal context because it allows courts to consider tribal dignity, public policy concerns, and statutory purpose in applying a sovereign immunity waiver to tribes.