Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin ( 2023 )

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS ET AL. v. COUGHLIN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 22–227. Argued April 24, 2023—Decided June 15, 2023
Petitioner Lac du Flambeau Band of Lake Superior Chippewa Indians
(the Band) is a federally recognized Indian tribe. One of the Band’s
businesses, Lendgreen, extended respondent Brian Coughlin a payday
loan. Shortly after receiving the loan, Coughlin filed for Chapter 13
bankruptcy, triggering an automatic stay under the Bankruptcy Code
against further collection efforts by his creditors. But Lendgreen al-
legedly continued attempting to collect Coughlin’s debt. Coughlin filed
a motion in Bankruptcy Court to enforce the automatic stay and re-
cover damages. The Bankruptcy Court dismissed the suit on tribal
sovereign immunity grounds. The First Circuit reversed, concluding
that the Code “unequivocally strips tribes of their immunity.” 33
F. 4th 600, 603.
Held: The Bankruptcy Code unambiguously abrogates the sovereign im-
munity of all governments, including federally recognized Indian
tribes. Pp. 3–16.
(a) Two provisions of the Bankruptcy Code lie at the heart of this
case. The first, 11 U. S. C. §106(a), expressly abrogates the sovereign
immunity of “governmental unit[s]” for enumerated purposes. The
second, §101(27), defines “governmental unit” as “United States; State;
Commonwealth; District; Territory; municipality; foreign state; de-
partment, agency, or instrumentality of the United States . . . , a State,
a Commonwealth, a District, a Territory, a municipality, or a foreign
state; or other foreign or domestic government.” In order for these pro-
visions to abrogate tribal sovereign immunity, Congress “must [have
made] its intent . . . ‘unmistakably clear in the language of the stat-
ute.’ ” Financial Oversight and Management Bd. for P. R. v. Centro De
Periodismo Investigativo, Inc., 598 U. S. ___, ___. If the statute can
2 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
Syllabus
plausibly be read to preserve sovereign immunity, Congress has not
unambiguously expressed the requisite intent. FAA v. Cooper, 566
U. S. 284, 290. But Congress need not use any particular words to
pass this clear-statement test. Pp. 3–4.
(b) The Bankruptcy Code unequivocally abrogates the sovereign im-
munity of any and every government with the power to assert such
immunity. Because federally recognized tribes unquestionably fit that
description, the Code’s abrogation provision plainly applies to them as
well. Pp. 4–16.
(1) Several features of the statute’s text and structure point the
way. To start, the definition of “governmental unit” exudes compre-
hensiveness. It begins with a long list of governments, varying in lo-
cation, nature, and size. It then proceeds to capture subdivisions and
components of every government in that list. And it concludes with a
broad catchall phrase, sweeping in “other foreign or domestic govern-
ment[s].” §101(27). Moreover, the catchall phrase’s pairing of ex-
tremes—i.e., “foreign or domestic”—appearing at the end of an exten-
sive list unambiguously indicates Congress’s intent to cover all
governments in §101(27)’s definition. The abrogation provision in
§106(a) in turn applies to every “governmental unit” in §101(27). It
does not cherry-pick certain types of governments from that capacious
list. Pp. 4–6.
(2) Other provisions of the Bankruptcy Code reinforce §106(a) and
§101(27)’s plain text. To facilitate an “orderly and centralized” debt-
resolution process, 1 Collier on Bankruptcy ¶1.01 (16th ed. 2023), the
Code includes a number of requirements, like the automatic stay pro-
vision, that generally apply to all creditors. These basic requirements
can be enforced against all kinds of creditors, whether the creditor is
a governmental unit or not. At the same time, the Code contains lim-
ited exceptions to avoid impeding the functioning of governmental en-
tities when they act as creditors. See, e.g., §362(b)(4). Reading the
statute to carve out certain governments from the definition of “gov-
ernmental unit”—as petitioners would have the Court do—risks up-
ending the policy choices that the Code embodies. And there is no in-
dication that Congress meant to categorically exclude certain
governments from these provisions’ enforcement mechanisms and ex-
ceptions. Pp. 6–8.
(3) Federally recognized tribes are indisputably governments.
They exercise uniquely governmental functions, and both Congress
and this Court have repeatedly characterized them as governments.
Accordingly, because the Bankruptcy Code unequivocally abrogates
the sovereign immunity of all governments, and tribes undoubtedly
count as governments, the Code unmistakably abrogates tribal sover-
eign immunity. Pp. 8–9.
Cite as: 599 U. S. ____ (2023) 3
Syllabus
(c) Petitioners fail to sow doubt into these clear statutory provisions.
Pp. 10–15.
(1) Petitioners insist that neither §101(27) nor §106(a) mentions
tribes by name. But Congress need not use any particular words to
make its abrogation intent clear. Cooper, 566 U. S., at 291. And the
fact that Congress has referenced tribes specifically in other statutes
abrogating tribal sovereign immunity does not foreclose it from using
different language to accomplish that same goal in other statutory con-
texts. Pp. 10–11.
(2) Petitioners also contend that the catchall phrase “other foreign
or domestic government” can plausibly be read to include only entities
that are purely foreign “or” purely domestic. In petitioners’ view, the
catchall phrase would thus exclude tribes or other governments that
have foreign and domestic features. But Congress has expressly in-
structed that the word “or,” as used in the Code, “is not exclusive.”
§102(5). In any event, petitioners do not explain why the Bankruptcy
Code would draw such a line in the sand.
Finally, petitioners suggest that Congress has historically treated
various types of governments differently for purposes of bankruptcy
law, relying on provisions preceding the Bankruptcy Code’s enact-
ment. Yet petitioners fail to demonstrate that the Code—which com-
prehensively revised bankruptcy practice—carried forward any such
differential treatment. Pp. 11–15.
33 F. 4th 600, affirmed.
JACKSON, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and ALITO, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ.,
joined. THOMAS, J., filed an opinion concurring in the judgment. GOR-
SUCH, J., filed a dissenting opinion.
Cite as: 599 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–227
_________________
LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS, ET AL., PETITIONERS v.
BRIAN W. COUGHLIN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 15, 2023]
JUSTICE JACKSON delivered the opinion of the Court.
The Bankruptcy Code expressly abrogates the sovereign
immunity of “governmental unit[s]” for specified purposes.
11 U. S. C. §106(a). The question presented in this case is
whether that express abrogation extends to federally recog-
nized Indian tribes. Under our precedents, we will not find
an abrogation of tribal sovereign immunity unless Congress
has conveyed its intent to abrogate in unequivocal terms.
That is a high bar. But for the reasons explained below, we
find it has been satisfied here.
I
Petitioner Lac du Flambeau Band of Lake Superior Chip-
pewa Indians (the Band) is a federally recognized Tribe that
wholly owns several business entities. In 2019, one of the
Band’s businesses, Lendgreen, allowed respondent Brian
Coughlin to borrow $1,100 in the form of a high-interest,
short-term loan. But Coughlin filed for Chapter 13 bank-
ruptcy before he fully repaid the loan.
Under the Bankruptcy Code, Coughlin’s filing of the
bankruptcy petition triggered an automatic stay against
2 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
further collection efforts by creditors, including Lendgreen.
See §362(a). Yet, according to Coughlin, Lendgreen contin-
ued its efforts to collect on his debt, even after it was re-
minded of the pending bankruptcy petition. Coughlin al-
leges that Lendgreen was so aggressive in its efforts to
contact him and collect the money that he suffered substan-
tial emotional distress, and at one point, even attempted to
take his own life.
Coughlin eventually filed a motion in Bankruptcy Court,
seeking to have the stay enforced against Lendgreen, its
parent corporations, and the Band (collectively, petition-
ers). Coughlin also sought damages for emotional distress,
along with costs and attorney’s fees. See §362(k) (providing
a damages award to individuals injured by willful violations
of the automatic stay).
Petitioners moved to dismiss. They argued that the
Bankruptcy Court lacked subject-matter jurisdiction over
Coughlin’s enforcement proceeding, as the Band and its
subsidiaries enjoyed tribal sovereign immunity from suit. 1
The Bankruptcy Court agreed; it held that the suit had to
be dismissed because the Bankruptcy Code did not clearly
express Congress’s intent to abrogate tribal sovereign im-
munity.
In a divided opinion, the Court of Appeals for the First
Circuit reversed, concluding that the Bankruptcy Code “un-
equivocally strips tribes of their immunity.” In re Coughlin,
33 F. 4th 600, 603–604 (2022). In so holding, the First Cir-
cuit deepened a split among the Courts of Appeals on this
question. Compare Krystal Energy Co. v. Navajo Nation,
357 F. 3d 1055, 1061 (CA9 2004) (holding that the Bank-
ruptcy Code abrogates tribal sovereign immunity), with In
re Greektown Holdings, LLC, 917 F. 3d 451, 460–461 (CA6
——————
1 It is undisputed in this case, and we assume herein, that the Band’s
subsidiaries are arms of the Tribe and enjoy the Band’s sovereign im-
munity. In re Coughlin, 33 F. 4th 600, 604, n. 1 (CA1 2022); In re Cough-
lin, 622 B. R. 491, 493 (Bkrtcy. Ct. Mass. 2020).
Cite as: 599 U. S. ____ (2023) 3
Opinion of the Court
2019) (concluding the reverse). We granted certiorari to ad-
dress the lower courts’ inconsistent holdings. 598 U. S. ___(2023).
II
A
Two provisions of the Bankruptcy Code lie at the crux of
this case. The first—11 U. S. C. §106(a)—abrogates the
sovereign immunity of “governmental unit[s].” It provides:
“Notwithstanding an assertion of sovereign immunity, sov-
ereign immunity is abrogated as to a governmental unit to
the extent set forth in this section.” Section 106(a) goes on
to enumerate a list of Code provisions to which the abroga-
tion applies, including the provision governing automatic
stays.
The second relevant provision is §101(27). That provision
defines “governmental unit” for purposes of the Code. It
states that that term
“means United States; State; Commonwealth; District;
Territory; municipality; foreign state; department,
agency, or instrumentality of the United States (but
not a United States trustee while serving as a trustee
in a case under this title), a State, a Commonwealth, a
District, a Territory, a municipality, or a foreign state;
or other foreign or domestic government.”
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.
B
To “abrogate sovereign immunity,” Congress “must make
its intent . . . ‘unmistakably clear in the language of the
statute.’ ” Financial Oversight and Management Bd. for
P. R. v. Centro De Periodismo Investigativo, Inc., 598 U. S.
___, ___ (2023) (slip op., at 6). This well-settled rule applies
4 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
to federally recognized tribes no less than other defendants
with sovereign immunity. Ibid. We have held that tribes
possess the “common-law immunity from suit traditionally
enjoyed by sovereign powers.” Santa Clara Pueblo v. Mar-
tinez, 436 U. S. 49, 58 (1978). Our cases have thus repeat-
edly emphasized that tribal sovereign immunity, absent a
clear statement of congressional intent to the contrary, is
the “baseline position.” Michigan v. Bay Mills Indian Com-
munity, 572 U. S. 782, 790 (2014).
This clear-statement rule is a demanding standard. If
“there is a plausible interpretation of the statute” that pre-
serves sovereign immunity, Congress has not unambigu-
ously expressed the requisite intent. FAA v. Cooper, 566
U. S. 284, 290 (2012); accord, United States v. Nordic Vil-
lage, Inc., 503 U. S. 30, 37 (1992).
The rule is not a magic-words requirement, however. To
abrogate sovereign immunity unambiguously, “Congress
need not state its intent in any particular way.” Cooper,
566 U. S., at 291. Nor need Congress “make its clear state-
ment in a single [statutory] section.” Kimel v. Florida Bd.
of Regents, 528 U. S. 62, 76 (2000). The clear-statement
question is simply whether, upon applying “traditional”
tools of statutory interpretation, Congress’s abrogation of
tribal sovereign immunity is “clearly discernable” from the
statute itself. Cooper, 566 U. S., at 291.
III
We conclude that the Bankruptcy Code unequivocally ab-
rogates the sovereign immunity of any and every govern-
ment that possesses the power to assert such immunity.
Federally recognized tribes undeniably fit that description;
therefore, the Code’s abrogation provision plainly applies to
them as well.
Cite as: 599 U. S. ____ (2023) 5
Opinion of the Court
A
Several features of the provisions’ text and structure com-
pel this conclusion.
As an initial matter, the definition of “governmental unit”
exudes comprehensiveness from beginning to end. Con-
gress has rattled off a long list of governments that vary in
geographic location, size, and nature. §101(27) (including
municipalities, districts, Territories, Commonwealths,
States, the United States, and foreign states). The provi-
sion then proceeds to capture subdivisions and components
of every government within that list. Ibid. (accounting for
any “department, agency, or instrumentality of the United
States . . . , a State, a Commonwealth, a District, a Terri-
tory, a municipality, or a foreign state”). And it concludes
with a broad catchall phrase, sweeping in “other foreign or
domestic government[s].” Ibid.
When faced with analogously structured provisions in
other contexts, we have noted their all-encompassing scope.
See, e.g., Taylor v. United States, 579 U. S. 301, 305–306
(2016) (characterizing as “unmistakably broad” a criminal
statute defining “commerce” to include a list of specific in-
stances in which the Federal Government would have juris-
diction, followed by a broad residual phrase); see also Mari-
etta Memorial Hospital Employee Health Benefit Plan v.
DaVita Inc., 596 U. S. ___, ___, n. 1 (2022) (slip op., at 4,
n. 1) (similar). We find the strikingly broad scope of
§101(27)’s definition of “governmental unit” to be signifi-
cant in this context as well.
The catchall phrase Congress used in §101(27) is also no-
table in and of itself. Few phrases in the English language
express all-inclusiveness more than the pairing of two ex-
tremes. “Rain or shine” is a classic example: If an event is
scheduled to occur rain or shine, it will take place whatever
the weather that day might be. Same with the phrase “near
and far”: If people are traveling from near and far, they are
coming from all over the map, regardless of the particular
6 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
distance from point A to point B.
The pairing of “foreign” with “domestic” is of a piece with
those other common expressions. For instance, if someone
asks you to identify car manufacturers, “foreign or domes-
tic,” your task is to name any and all manufacturers that
come to mind, without particular regard to where exactly
the cars are made or the location of the companies’ head-
quarters. Similarly, at the start of each Congress, a cadre
of newly elected officials “ ‘solemnly swear’ ” to “ ‘support
and defend the Constitution of the United States against all
enemies, foreign and domestic.’ ” 5 U. S. C. §3331. That
oath—which each Member of Congress who enacted the
Bankruptcy Code took—indisputably pertains to enemies
anywhere in the world. Accordingly, we find that, by cou-
pling foreign and domestic together, and placing the pair at
the end of an extensive list, Congress unmistakably in-
tended to cover all governments in §101(27)’s definition,
whatever their location, nature, or type.
It is also significant that the abrogation of sovereign im-
munity in §106(a) plainly applies to all “governmental
unit[s]” as defined by §101(27). Congress did not cherry-
pick certain governments from §101(27)’s capacious list and
only abrogate immunity with respect to those it had so se-
lected. 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. In-
stead, Congress categorically abrogated the sovereign im-
munity of any governmental unit that might attempt to as-
sert it.
B
Other aspects of the Bankruptcy Code reinforce what
§106(a)’s and §101(27)’s plain text conveys.
Through various provisions, the Bankruptcy Code offers
debtors a fresh start by discharging and restructuring their
debts in an “orderly and centralized” fashion. See, e.g., 1
Cite as: 599 U. S. ____ (2023) 7
Opinion of the Court
Collier on Bankruptcy ¶1.01 (16th ed. 2023); Lamar, Archer
& Cofrin, LLP v. Appling, 584 U. S. ___, ___ (2018) (slip op.,
at 4). The automatic-stay requirement, for example, keeps
creditors from “dismember[ing]” the estate while the bank-
ruptcy case proceeds. Chicago v. Fulton, 592 U. S. ___, ___
(2021) (slip op., at 2); 11 U. S. C. §362. The Code’s discharge
provision enjoins creditors from trying to collect debts that
have been discharged in a bankruptcy case. §524(a). And
its plan-confirmation provisions, as relevant here, “bind . . .
each creditor” to whatever repayment plan the bankruptcy
court approves, “whether or not the claim of such creditor
is provided for by the plan, and whether or not such creditor
has objected to, has accepted, or has rejected the plan.”
§1327(a); see also, e.g., §§1141(a), 1227(a).
These protections sweep broadly, by their own terms. To
facilitate the Code’s “orderly and centralized” debt-
resolution process, Collier on Bankruptcy ¶1.01, these pro-
visions’ basic requirements generally apply to all creditors. 2
Courts can also enforce these requirements against any
kind of noncompliant creditor—whether or not the creditor
is a “governmental unit”—by virtue of §106(a)’s abrogation
of sovereign immunity. §§106(a)(1)–(3).
At the same time, so as to avoid impeding the functioning
of governmental entities when they act as creditors, the
Code contains a number of limited exceptions. For in-
stance, the automatic-stay requirement does not preclude
“governmental unit[s]” from enforcing their “police and reg-
ulatory power[s]” in certain proceedings, §362(b)(4), or from
——————
2 11 U. S. C. §362(a) (the filing of a bankruptcy petition “operates as a
stay, applicable to all entities” (emphasis added)); §362(b) (providing lim-
ited exceptions to the automatic-stay provision, none of which categori-
cally exclude a certain type of creditor for all purposes); §524(a)(2) (the
discharge of a debt “operates as an injunction against the commencement
or continuation of an action . . . to collect, recover or offset any [dis-
charged] debt as a personal liability of the debtor” (emphasis added));
§1327(a) (“The provisions of a confirmed plan bind the debtor and each
creditor” (emphasis added)).
8 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
pursuing specific tax-related activities, §§362(b)(9), (18),
(26). The Code additionally exempts from discharge certain
debts for a “fine, penalty, or forfeiture” owed to a “govern-
mental unit.” §523(a)(7).
Reading the statute to carve out a subset of governments
from the definition of “governmental unit,” as petitioners’
view of the statute would require, risks upending the policy
choices that the Code embodies in this regard. That is, de-
spite the fact that the Code generally subjects all creditors
(including governmental units) to certain overarching re-
quirements, under petitioners’ reading, some government
creditors would be immune from key enforcement proceed-
ings while others would face penalties for their noncompli-
ance. And while the Code is finely tuned to accommodate
essential governmental functions (like tax administration
and regulation) as a general matter, petitioners would have
us find that certain governments are excluded from those
provisions’ reach, notwithstanding the fact that they en-
gage in tax and regulatory activities too. There is no indi-
cation that Congress meant to categorically exclude certain
governments from these provisions’ enforcement mecha-
nisms and exceptions, let alone in such an anomalous man-
ner. Cf. Law v. Siegel, 571 U. S. 415, 424 (2014) (declining
to read into the Code an exception Congress did not include
in its “meticulous” and “carefully calibrated” scheme).
C
Our conclusion that all government creditors are subject
to abrogation under §106(a) brings one remaining question
to the fore—whether federally recognized tribes qualify as
governments. Petitioners do not seriously dispute that fed-
erally recognized tribes are governments, and for good rea-
son. Federally recognized tribes exercise uniquely govern-
mental functions: “They have power to make their own
substantive law in internal matters, and to enforce that law
in their own forums.” Santa Clara Pueblo, 436 U. S., at 55–
Cite as: 599 U. S. ____ (2023) 9
Opinion of the Court
56 (citations omitted). They can also “tax activities on the
reservation.” Plains Commerce Bank v. Long Family Land
& Cattle Co., 554 U. S. 316, 327 (2008).
It is thus no surprise that Congress has repeatedly char-
acterized tribes as governments. 3 And this Court has long
recognized tribes’ governmental status as well. See, e.g.,
Bay Mills, 572 U. S., at 788–789; Santa Clara Pueblo, 436
U. S., at 57–58. We have done so generally and also in the
specific context of tribal sovereign immunity. Tribal sover-
eign immunity, “we have explained, is ‘a necessary corollary
to Indian sovereignty and self-governance.’ ” Bay Mills, 572
U. S., at 788; see also id., at 789 (discussing immunity as
an example of tribes’ “governmental powers and attrib-
utes”).
Putting the pieces together, our analysis of the question
whether the Code abrogates the sovereign immunity of fed-
erally recognized tribes is remarkably straightforward.
The Code unequivocally abrogates the sovereign immunity
of all governments, categorically. Tribes are indisputably
governments. Therefore, §106(a) unmistakably abrogates
their sovereign immunity too. 4
——————
3 See, e.g., Indian Self-Determination and Education Assistance Act,
§104(a)(1), 88 Stat. 2207 (referring to “the strengthening or improvement
of tribal government”); Tribal Self-Governance Act of 1994, §§202(2),
(5)(A), 108 Stat. 4271 (“recogniz[ing] a special government-to-govern-
ment relationship with Indian tribes,” and “transferring control to tribal
governments . . . over funding and decisionmaking for Federal pro-
grams”); Compact of Self-Governance Between the Duckwater Shoshone
Tribe and the United States of America, Art. I, §2(c) (1995) (explaining
that the Compact would allow the Tribe to “take its rightful place in the
family of governments in the federal constitutional system,” and “reor-
ganize tribal government programs and services”).
4 Given this holding, we need not decide whether tribes qualify as
purely “domestic” governments. Compare Brief for Petitioners 33 (insist-
ing tribes are not clearly domestic governments), and post, at 5–11
(GORSUCH, J., dissenting) (similar), with Brief for Respondent 40–41
(contending that they are). See also infra, at 12–14.
10 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
IV
Petitioners raise two main arguments in an attempt to
sow doubt into these clear statutory provisions. Neither
creates the ambiguity petitioners seek.
A
For their opening salvo, petitioners try to make hay out
of the simple fact that neither §101(27) nor §106(a) men-
tions Indian tribes by name. Had Congress wanted to ab-
rogate tribal sovereign immunity, petitioners claim, the
most natural and obvious way to have expressed that intent
would have been to reference Indian tribes specifically, ra-
ther than smuggle them into a broadly worded catchall
phrase.
But, as explained at the outset, supra, at 4, the clear-
statement rule is not a magic-words requirement. Thus,
Congress did not have to include a specific reference to fed-
erally recognized tribes in order to make clear that it in-
tended for tribes to be covered by the abrogation provision.
As long as Congress speaks unequivocally, it passes the
clear-statement test—regardless of whether it articulated
its intent in the most straightforward way. Cooper, 566
U. S., at 291.
Trying a different tack, petitioners point to historical
practice. In statute after statute, they say, Congress has
specifically mentioned Indian tribes when abrogating their
sovereign immunity. And in no case has this Court ever
found an abrogation of tribal sovereign immunity where the
statute did not reference Indian tribes explicitly. See Brief
for Petitioners 24–26.
These statistics sound quite noteworthy at first glance.
But they do not move the needle in this case. For one thing,
none of petitioners’ cited examples involved a statutory pro-
vision that was worded analogously to, and structured like,
Cite as: 599 U. S. ____ (2023) 11
Opinion of the Court
the ones at issue here. 5 Moreover, the universe of cases in
which we have addressed federal statutes abrogating tribal
sovereign immunity is exceedingly slim. 6
In any event, the fact that Congress has referenced tribes
specifically in some statutes abrogating tribal sovereign im-
munity does not foreclose it from using different language
to accomplish that same goal in other statutory contexts.
Even petitioners appear to concede this basic point. They
agree that Congress could have used a phrase like “every
government” or “any government with sovereign immunity”
to express unambiguously the requisite intent to abrogate
the sovereign immunity of tribes. Id., at 27 (internal quo-
tation marks omitted). For the reasons discussed above, we
believe Congress did just that.
B
Petitioners further contend that even if the relevant pro-
visions could theoretically cover tribes, the statute can
plausibly be read in a way that preserves their immunity.
——————
5 Petitioners rely, for instance, on the Resource Conservation and Re-
covery Act of 1976, which authorizes a “person” to “commence a civil ac-
tion.” 42 U. S. C. §6972(a). “Person” is defined under that statute to
include a “municipality,” which is in turn defined to encompass “a city,
town, borough, county, parish, district, or other public body created by or
pursuant to State law . . . or an Indian tribe or authorized tribal organi-
zation.” §§6903(13), (15); see also Brief for Petitioners 25 (citing similar
provisions). The fact that Congress mentioned Indian tribes specifically
when including them in the category of a “person” or “municipality” says
little about Congress’s purported need to name Indian tribes when refer-
ring to them as a “governmental unit” or “other foreign or domestic gov-
ernment.”
6 The parties’ briefing identifies only two cases. See Michigan v. Bay
Mills Indian Community, 572 U. S. 782, 791 (2014) (recognizing partial
abrogation); United States v. United States Fidelity & Guaranty Co., 309
U. S. 506, 513 (1940).
12 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
1
According to petitioners, the catchall phrase “other for-
eign or domestic government” might simply capture entities
created through “interstate compacts,” which cannot neatly
be characterized as a State or an instrumentality of a State
under §101(27)’s enumerated list. Id., at 40–41 (internal
quotation marks omitted). Interpreted in that fashion, pe-
titioners maintain, the catchall phrase would exclude gov-
ernmental entities that are not purely foreign or purely do-
mestic—like tribes or the International Monetary Fund
(IMF). Tr. of Oral Arg. 8–9.
If this interpretation of the statute sounds far-fetched,
that is because it is. To find petitioners’ construction plau-
sible, we would have to interpret “other foreign or domestic
government” to impose a rigid division between foreign gov-
ernments on the one hand and domestic governments on
the other, leaving out any governmental entity that may
have both foreign and domestic characteristics (like tribes
or the IMF). But Congress has expressly instructed that
the word “or,” as used in the Code, “is not exclusive.” 11
U. S. C. §102(5). As a result, we have serious doubts that
Congress meant for §101(27) to elicit the laser focus on “or”
that petitioners’ reading of “foreign or domestic” would en-
tail. 7
——————
7 Our dissenting colleague puts forth two hypotheticals that suppos-
edly cast doubt on this conclusion. See post, at 13–14 (opinion of
GORSUCH, J.). The first involves choosing a pet that is “ ‘small or a dog,’ ”
while the second concerns an offer to have “chocolate or vanilla” ice
cream. Ibid. But these hypotheticals are not remotely analogous to “for-
eign or domestic.” For one thing, the terms “foreign” and “domestic” are
two poles on a spectrum. See supra, at 5–6. Neither “small” and “dog”
nor “chocolate” and “vanilla” fit that bill. For another, whereas the pair-
ing of “foreign” and “domestic” often covers the waterfront, see supra, at
6, the dissent’s hypothetical pairings do not have that same effect. And
unlike animals (which need not be small or doglike) or ice creams (which
need not be chocolate or vanilla), every government must be foreign or
domestic to some degree; the question is just where on the spectrum it
Cite as: 599 U. S. ____ (2023) 13
Opinion of the Court
The dissent’s own arguments undermine any suggestion
that Congress adopted such a siloed view. For instance, the
dissent repeatedly paints tribes as occupying a hybrid posi-
tion between foreign and domestic, post, at 6, 8–9 (opinion
of GORSUCH, J.), and posits that Territories historically
share this hybrid status as well, post, at 10 (describing Ter-
ritories as tribes’ “close comparator”). Yet, as the dissent
readily acknowledges, Congress expressly included Territo-
ries within §101(27)’s definition of “governmental unit.” If,
on the dissent’s own account, Territories are “neither for-
eign nor domestic,” ibid.—and fall within §101(27)’s pur-
view nevertheless—it is hard to see how §101(27)’s catchall
phrase would simultaneously exclude other entities that
share that same feature. §101(27) (“ ‘governmental unit’
means United States; State; . . . Territory; . . . foreign state;
or other foreign or domestic government” (emphasis
added)).
In any case, neither petitioners nor the dissent explain
why the Code would draw such a line in the sand. None of
the carefully calibrated exceptions noted in Part III–B, su-
pra, for governmental units performing regulatory and tax-
related functions turn on whether a government is purely
foreign or domestic. Likewise, it is hard to see why the Code
would subject purely foreign or domestic governments to
enforcement proceedings while at the same time immuniz-
ing government creditors that have both foreign and domes-
tic attributes. Considering that the one thing every entity
in §101(27)’s enumerated list has in common is its govern-
mental nature—and that is the same characteristic that
matters when the Code addresses “governmental unit[s]”
——————
falls. See post, at 6 (observing that the Constitution “appear[s] to ‘place
Indian [T]ribes in an intermediate category between foreign and domes-
tic states’ ”); post, at 8 (tribes occupy a “ ‘hybrid position’ between ‘foreign
and domestic states’ ”).
14 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
from one provision to the next 8—we are highly skeptical
that Congress distinguished between governments in the
way petitioners suggest.
2
Undaunted, petitioners note that Congress has histori-
cally treated various types of governments differently for
purposes of bankruptcy law. Tr. of Oral Arg. 14–15; Reply
Brief 21. They assert that, in the decades leading up to the
Bankruptcy Code’s enactment, bankruptcy law afforded
certain benefits to “ ‘the United States or any State or any
subdivision thereof,’ ” leaving out entities that did not fall
into one of those enumerated categories. Reply Brief 21
(quoting §64(a)(4), 52 Stat. 874).
Even if petitioners’ understanding of this history is cor-
rect, they have failed to demonstrate that the Code carried
forward any such differential treatment. Congress ushered
in “a new, unprecedented era in bankruptcy practice” when
it enacted the Code in 1978. 1 W. Norton, Bankruptcy Law
and Practice §1:9, p. 1-17 (3d ed. 2023); Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 52–53
(1982) (plurality opinion) (describing the Code as “a com-
prehensive revision of the bankruptcy laws”). Both
§101(27)’s definition of “governmental unit” and §106(a)’s
abrogation of sovereign immunity were some of the many
changes Congress made. The prior statute did not provide
a general definition for governmental entities, much less in-
——————
8 For example, the Code defines “domestic support obligation” to in-
clude debts “owed to or recoverable by” spouses as well as “governmental
unit[s].” §101(14A). And the term “person” covers an “individual, part-
nership, and corporation,” as well as a “governmental unit that . . . ac-
quires an asset from a person . . . as a result of the operation of a loan
guarantee agreement” or “as receiver or liquidating agent of a person.”
§101(41). The main feature that sets “governmental unit[s]” apart from
other entities mentioned in these definitions is their governmental na-
ture.
Cite as: 599 U. S. ____ (2023) 15
Opinion of the Court
clude any provision expressly abrogating governments’ sov-
ereign immunity. Instead, it set forth a general definition
for “States,” which encompassed Territories, possessions,
and the District of Columbia. 52 Stat. 842. Then, in each
provision where governmental entities were relevant, Con-
gress specified the particular governmental entities to
which that provision pertained. See, e.g., §17(1), id., at 851
(exempting from discharge debts “due as a tax levied by the
United States, or any State, county, district, or municipal-
ity”); id., at 874 (providing priority status to “the United
States or any State or any subdivision thereof ”).
Section 101(27)’s definition of “governmental unit” has an
undeniably broader reach than the statutory provisions
that preceded it. Section 101(27)’s definition includes, for
instance, foreign countries and instrumentalities, when
such entities had generally been previously absent. And
the expansive definition of “governmental unit” in §101(27)
applies throughout the Bankruptcy Code. In addition, for
those who find legislative history useful, the Senate and
House Reports that accompanied the Code indicate that
“governmental unit” was intended to be defined “in the
broadest sense.” S. Rep. No. 95–989, p. 24 (1978); H. R. Rep.
No. 95–595, p. 311 (1977). When Congress later added
§106(a)’s abrogation provision, it was that comprehensive
definition of governmental unit that Congress used to spec-
ify the scope of the abrogation’s sweep.
Thus, however Congress may have treated governmental
entities in bankruptcy law prior to 1978, it had clearly al-
tered its view about the scope of coverage relative to gov-
ernments by the time it enacted §101(27) and §106(a).
Those provisions unequivocally extend to all governments,
for the reasons already discussed, and we decline to read
ambiguity into the statute where none exists.
* * *
We find that the First Circuit correctly concluded that the
16 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
Bankruptcy Code unambiguously abrogates tribal sover-
eign immunity. Therefore, the decision below is affirmed.
It is so ordered.
Cite as: 599 U. S. ____ (2023) 1
THOMAS
THOMAS , J., concurring
, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–227
_________________
LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS, ET AL., PETITIONERS v.
BRIAN W. COUGHLIN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 15, 2023]
JUSTICE THOMAS, concurring in the judgment.
As I have explained, to the extent that tribes possess sov-
ereign immunity at all, that immunity does not extend to
“suits arising out of a tribe’s commercial activities con-
ducted beyond its territory.” Michigan v. Bay Mills Indian
Community, 572 U. S. 782, 815 (2014) (dissenting opinion).
Because respondent’s stay-enforcement motion arose from
petitioners’ off-reservation commercial conduct, petitioners
lack sovereign immunity regardless of the Bankruptcy
Code’s abrogation provision. I therefore concur in the
Court’s judgment.
“Tribal immunity is a judicial doctrine that is not man-
dated by the Constitution, . . . developed almost by accident,
was reiterated with little analysis, and does not reflect the
realities of modern-day Indian tribes.” Upper Skagit Tribe
v. Lundgren, 584 U. S. ___, ___ (2018) (THOMAS, J., dissent-
ing) (slip op., at 12) (internal quotation marks omitted). To
the extent that tribes have any sovereign immunity at all,
it is a common-law immunity. Bay Mills, 572 U. S., at 816–
817. Unlike the sovereign immunity enjoyed by the States
under the Constitution, common-law immunity “is not a
freestanding right that applies of its own force when a sov-
ereign faces suit in the courts of another.” Id., at 816 (in-
2 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
THOMAS
THOMAS , J., concurring
, J., concurring in judgment
ternal quotation marks omitted). Rather, it “normally de-
pends on the second sovereign’s law” as a matter of comity.
Ibid. (internal quotation marks omitted). Because no fed-
eral law accords tribes sovereign immunity in federal court,
petitioners lack immunity in this federal case.
Moreover, even if federal courts could afford immunity to
tribes as a matter of comity, comity considerations would
not help petitioners. “Even with respect to fully sovereign
foreign nations, comity has long been discarded as a suffi-
cient reason to grant immunity for commercial acts”—like
those at issue here. Id., at 817 (emphasis added). And, far
from furthering comity principles, recognizing immunity
for off-reservation commercial acts “represents a substan-
tial affront to a different set of sovereigns—the States.”
Ibid. When a tribe engages in off-reservation commercial
activity, “it necessarily acts within the territory of a sover-
eign State.” Id., at 818. Thus, to grant tribes a unique and
unjustified immunity from both federal and state jurisdic-
tion for commercial acts committed on a State’s territory
“aggravate[s] relationships between States and tribes
throughout the country.” Id., at 818–819. Accordingly, any
common-law immunity that petitioners possess cannot sup-
port their claim to immunity in federal court for their off-
reservation commercial conduct.
The Court’s tribal immunity doctrine is also out of step
with more recent decisions. In Franchise Tax Bd. of Cal. v.
Hyatt, 587 U. S. ___ (2019), the Court recognized that the
50 States possess a unique form of immunity that applies
of its own force in the courts of sister States, id., at ___–___
(slip op., at 7–16), as well as those of the Federal Govern-
ment, id., at ___ (slip op., at 12) (collecting cases). This im-
munity stems from the Constitution itself and belongs only
to the 50 States through their ratification of the Constitu-
tion or admission to the Union on an equal footing with the
original States. See Alden v. Maine, 527 U. S. 706, 713
Cite as: 599 U. S. ____ (2023) 3
THOMAS
THOMAS , J., concurring
, J., concurring in judgment
(1999). As a result, it is distinct from common-law immun-
ity, which depends upon the forum court’s sovereign for
recognition. Bay Mills, 572 U. S., at 816. By treating tribal
immunity like state immunity, the Court’s tribal immunity
case law has afforded tribes, by judicial fiat, a form of im-
munity that the Constitution accords to the 50 States, and
only the 50 States.
Finally, this Court’s tribal immunity doctrine continues
to artificially exempt tribes from generally applicable laws.
I warned nearly a decade ago that tribal immunity “will
continue to invite problems, including de facto deregulation
of highly regulated activities; unfairness to tort victims;
and increasingly fractious relations with States and indi-
viduals alike.” Id., at 825. This is a case in point. In order
to avoid state payday loan regulation, “payday lenders . . .
often arrange to share fees or profits with tribes so they can
use tribal immunity as a shield for conduct of questionable
legality.” Ibid. Petitioners here rely on tribal immunity to
avoid not only state but also federal payday loan regulation.
They further seek to leverage this immunity to pursue re-
spondent on his debt while other creditors’ collection efforts
are stayed. Tribal immunity thus creates a pathway to cir-
cumvent vast swaths of both state and federal laws.
The consequences of the Court’s erroneous tribal immun-
ity precedents have only gotten worse over the years. See
id., at 814 (Scalia, J., dissenting) (“I am now convinced that
[Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc.,
523 U. S. 751 (1998)] was wrongly decided; that, in the in-
tervening 16 years, its error has grown more glaringly ob-
vious; and that stare decisis does not recommend its reten-
tion”); id., at 831 (Ginsburg, J., dissenting) (“[T]his Court’s
declaration of an immunity thus absolute was and remains
exorbitant”). Further, the doctrine simply cannot be recon-
ciled with the Court’s precedents affirming “that the States
have legislative jurisdiction over the off-reservation con-
4 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
THOMAS
THOMAS , J., concurring
, J., concurring in judgment
duct of Indian tribes, and even over some on-reservation ac-
tivities.” Kiowa, 523 U. S., at 762 (Stevens, J., dissenting)
(describing the Court’s prior cases). Rather than accepting
the flawed premise of tribal immunity and deciding the ab-
rogation question beyond the looking glass, the Court
should simply abandon its judicially created tribal sover-
eign immunity doctrine.
Cite as: 599 U. S. ____ (2023) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–227
_________________
LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS, ET AL., PETITIONERS v.
BRIAN W. COUGHLIN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 15, 2023]
JUSTICE GORSUCH, 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 men-
tioning Indian tribes somewhere in the statute.” In re
Greektown Holdings, LLC, 917 F. 3d 451, 460 (CA6 2019)
(internal quotation marks omitted). No longer. The Court
reads the phrase “other foreign or domestic government,”
11 U. S. C. §101(27), as synonymous with “any and every
government,” ante, at 4—all for the purpose of holding that
§106(a) of the Bankruptcy Code abrogates tribal sovereign
immunity. It is a plausible interpretation. But plausible is
not the standard our tribal immunity jurisprudence de-
mands. Before holding that Congress has vitiated tribal
immunity, the Legislature must “unequivocally express” its
intent to achieve that result. C & L Enterprises, Inc. v. Cit-
izen Band Potawatomi Tribe of Okla., 532 U. S. 411, 418
(2001) (internal quotation marks omitted).
Respectfully, 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
2 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
GORSUCH, J., dissenting
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.
I
As the Court reaffirms today, “the doctrine of tribal im-
munity is settled law.” Kiowa Tribe of Okla. v. Manufac-
turing Technologies, Inc., 523 U. S. 751, 756 (1998); see
ante, at 3–4. Nor should that fact come as a surprise. From
the founding to the present, this Court has recognized the
Tribes’ continued existence as “independent sovereigns.”
Haaland v. Brackeen, 599 U. S. ___, ___–___ (2023)
(GORSUCH, J., concurring) (slip op., at 12–18); see, e.g.,
United States v. Wheeler, 435 U. S. 313, 322 (1978); Worces-
ter v. Georgia, 6 Pet. 515, 559 (1832) (Marshall, C. J., for
the Court).
A “necessary corollary to [that] Indian sovereignty” is im-
munity from private suit. Three Affiliated Tribes of Fort
Berthold Reservation v. Wold Engineering, P. C., 476 U. S.
877, 890 (1986). It is, after all, “inherent in the nature of
sovereignty not to be amenable to the suit of an individual
without its consent.” The Federalist No. 81, p. 487 (C. Ros-
siter ed. 1961) (A. Hamilton). That understanding, derived
from both “common law sovereign immunity” and “law-of-
nations sovereign immunity,” is a background principle on
which the Constitution itself rests. See Franchise Tax Bd.
of Cal. v. Hyatt, 587 U. S. ___, ___–___ (2019) (slip op., at 6–
9) (internal quotation marks omitted) (citing authorities).
And it applies to Tribes no less than foreign nations, Santa
Clara Pueblo v. Martinez, 436 U. S. 49, 58 (1978), a tradi-
tion that traces back over 170 years, see Parks v. Ross, 11
How. 362, 374 (1851). See also W. Wood, It Wasn’t an Ac-
cident: The Tribal Sovereign Immunity Story, 62 Am.
Cite as: 599 U. S. ____ (2023) 3
GORSUCH, J., dissenting
U. L. Rev. 1587, 1640 (2013) (Wood).
While venerable, tribal immunity—like its state and for-
eign counterparts—is not immutable. The federal govern-
ment can abrogate it, at least as far as its fonts of power let
it. See Santa Clara Pueblo, 436 U. S., at 58–59; cf. Brack-
een, 599 U. S., at ___ (opinion of GORSUCH, J.) (slip op., at
31). But the choice to abrogate tribal immunity is funda-
mentally political in nature. It is a choice that therefore
belongs to Congress, the “department which can modify [the
law] at will,” and not the Judiciary, the “department which
can pursue only the law as it is written.” Brown v. United
States, 8 Cranch 110, 129 (1814) (Marshall, C. J., for the
Court). Recognizing the Constitution’s division of responsi-
bility, this Court has long left all decisions about tribal and
other sorts of sovereign immunity “in Congress’s hands.”
Michigan v. Bay Mills Indian Community, 572 U. S. 782,
789 (2014).
Because “erroneous abrogation[s]” of immunity risk
inter-sovereign conflicts and reprisals, this Court employs
an additional interpretive guardrail—“a clear statement re-
quirement designed to ensure that the political branches
acted knowingly and intentionally” in divesting sovereigns
of their legal entitlements. A. Bellia & B. Clark, The Law
of Nations as Constitutional Law, 98 Va. L. Rev. 729, 792–
793 (2012). Under this approach, we will not read a statute
to abrogate immunity “if any other possible construction re-
mains.” Murray v. Schooner Charming Betsy, 2 Cranch 64,
118 (1804); see also, e.g., Financial Oversight and Manage-
ment Bd. for P. R. v. Centro De Periodismo Investigativo,
Inc., 598 U. S. ___, ___ (2023) (slip op., at 1). That goes for
Tribes just as it goes for other sovereigns; it is an “enduring
principle of Indian law” that we “will not lightly assume
that Congress in fact intends to undermine Indian” sover-
eignty absent pellucid evidence to the contrary. Bay Mills,
572 U. S., at 790.
All this explains the now-familiar clear-statement rule
4 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
GORSUCH, J., dissenting
that this Court has endorsed on countless occasions. If Con-
gress wishes to abrogate tribal immunity, its “decision must
be clear.” Ibid. And the Legislature must “unequivocally
express” its decision in the text of a statute. C & L Enter-
prises, 532 U. S., at 418 (internal quotation marks omitted).
Under that rule, “[a]ny ambiguities in the statutory lan-
guage are to be construed in favor of immunity.” FAA v.
Cooper, 566 U. S. 284, 290 (2012). Keep that hard-to-meet
standard in mind. We will return to it as we make our way
through the statutory text driving today’s dispute.
II
The Bankruptcy Code stipulates that, “notwithstanding
an assertion of sovereign immunity, sovereign immunity is
abrogated as to a governmental unit to the extent set forth
in this section.” §106(a). That language, this Court has
previously held, signals a clear intent to abrogate sovereign
immunity. See Central Va. Community College v. Katz, 546
U. S. 356, 379 (2006). But as to which sovereigns? The an-
swer to that question lies elsewhere in the Bankruptcy
Code. “The term ‘governmental unit,’ ” it says, “means
United States; State; Commonwealth; District; Territory;
municipality; foreign state; department, agency, or instru-
mentality of the United States (but not a United States
trustee while serving as a trustee in a case under this title),
a State, a Commonwealth, a District, a Territory, a munic-
ipality, or a foreign state; or other foreign or domestic gov-
ernment.” §101(27).
That is a lot of words. For present purposes, however,
only the last five matter: “other foreign or domestic govern-
ment.” No one argues any of the other clauses could poten-
tially refer to Tribes. We can further winnow down the op-
tions from there. No one thinks Tribes qualify as
“foreign . . . government[s].” That leaves only two possibil-
ities. Tribes could qualify as “ ‘domestic governments’ ”—
respondent’s lead argument. Tr. of Oral Arg. 41. Or the
Cite as: 599 U. S. ____ (2023) 5
GORSUCH, J., dissenting
phrase “other foreign or domestic government,” read as a
whole, could mean “any and every government”—respond-
ent’s backup argument and the one the Court adopts today.
Ante, at 4. Neither possibility is the slam dunk our familiar
clear-statement rule requires. Consider each in turn.
A
Start with the “domestic government” possibility. At the
time Congress adopted the provisions of the Bankruptcy
Code at issue before us, the word “domestic” carried only
two potentially relevant meanings. It could mean spatially
domestic—i.e., within the territorial confines of the United
States. Or it could mean politically domestic—i.e., a sub-
part of the United States. Contemporary definitions sup-
port each of those possibilities and only those possibilities.
See, e.g., Random House Dictionary of the English Lan-
guage 581 (2d ed. 1987) (“of or pertaining to one’s own or a
particular country as apart from other countries”); Ameri-
can Heritage Dictionary 416 (2d College ed. 1982) (“[o]f or
pertaining to a country’s internal affairs”).
If we were to read the term only in its spatial sense, as
the First Circuit did below and respondent urges us to do,
it makes some sense to speak of Tribes as “domestic.” See
In re Coughlin, 33 F. 4th 600, 606 (2022). These days, tribal
jurisdiction usually falls within the United States’ territo-
rial bounds—although that was not true for most of the Na-
tion’s history, and became so only after the West was won.
M. Fletcher, Tribal Consent, 8 Stan. J. Civ. Rights & Civ.
Lib. 45, 55, n. 63 (2012). Of course, usually does not mean
always. Even to this day, all three branches of government
struggle to address the status of Tribes that straddle our
Nation’s borders. See, e.g., 8 U. S. C. §1359 (setting special
immigration rules for “American Indians born in Canada”);
22 CFR §42.1(f ) (2022) (similar); Matter of Yellowquill, 16
I. & N. Dec. 576, 577–578 (BIA 1978) (interpreting other
6 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
GORSUCH, J., dissenting
provisions to not apply to Canada-born “American” Indi-
ans); Akins v. Saxbe, 380 F. Supp. 1210, 1218–1222 (Me.
1974) (similar). Evidently, our neighbor to the north has
encountered similar difficulties. See R. v. Desautel, 2021
SCC 17 (analyzing traditional cross-border hunting rights).
Focusing only on the spatial meaning of “domestic,” how-
ever, would miss an obvious point. When it comes to the
status of governments, this Court has long recognized that
geography takes a backseat. Whether a government quali-
fies as “domestic” instead usually depends on “the political
relation in which one government or country stands to an-
other”; the term has “no relation to local, geographical, or
territorial position.” Cherokee Nation v. Georgia, 5 Pet. 1,
55 (1831) (Thompson, J., dissenting); see also id., at 16–20
(Marshall, C. J., for the Court). At minimum, this line of
thinking leaves open a reasonable possibility that Congress
in §101(27) meant the term “domestic” in its political (not
geographic) sense. Accordingly, for respondent’s primary
argument to succeed, he must show that the political rela-
tionship between Indian Tribes and the United States is
such that the term “domestic government” clearly covers
them.
That is a burden respondent cannot carry. Properly un-
derstood, Indian Tribes “occupy a unique status” that is nei-
ther politically foreign nor domestic. National Farmers Un-
ion Ins. Cos. v. Crow Tribe, 471 U. S. 845, 851 (1985).
Significant evidence supports this understanding. Start
with the text of the Constitution. Its terms appear to “place
Indian [T]ribes in an intermediate category between foreign
and domestic states.” Z. Price, Dividing Sovereignty in
Tribal and Territorial Criminal Jurisdiction, 113 Colum.
L. Rev. 657, 670 (2013) (Price). At least two provisions il-
lustrate as much. One is the Commerce Clause, which gives
Congress the power to regulate “Commerce” “with foreign
Nations,” “among the several States,” and “with the Indian
Cite as: 599 U. S. ____ (2023) 7
GORSUCH, J., dissenting
Tribes.” Art. I, §8, cl. 3. The inclusion of that third Com-
merce Clause power suggests that Tribes were not reach-
able either by Congress’s foreign commerce power or by its
domestic (interstate) commerce power. More obscure but
no less probative is the Constitution’s exemption from the
apportionment formula of all “Indians not taxed.” Art. I, §2,
cl. 3; Amdt. 14, §2. That choice recognizes that Tribes are
not fully “domestic” to the United States, and instead stand
“separate from the polity.” Price 670.
These provisions, too, reflected a widely shared under-
standing about the sovereign status of Tribes at the found-
ing. As Secretary of War Henry Knox put it in a letter to
President Washington, the Tribes were in many ways akin
to “foreign nations,” and not part “of any particular [S]tate.”
Letter to G. Washington (July 7, 1789), in 3 Papers of
George Washington: Presidential Series 134, 138 (D.
Twohig ed. 1989). Consistent with this understanding, be-
fore 1871 the United States (and, prior to that, Great Brit-
ain) chiefly managed tribal relations by way of treaty. En-
tering into those treaties “admit[ted]” that the Tribes “rank
among those powers who are capable of making treaties.”
Worcester, 6 Pet., at 559. Governments do not normally
deal with politically “domestic” authorities in that manner.
See, e.g., Ex parte Crow Dog, 109 U. S. 556, 572 (1883) (link-
ing Tribes’ “ ‘capacity to make treaties’ ” with their unique
“ ‘semi-independent’ ” status, allowing them to control
“ ‘their domestic government’ ” (quoting United States v. Jo-
seph, 94 U. S. 614, 617 (1877))); The Cherokee Tobacco, 11
Wall. 616, 622 (1871) (Bradley, J., dissenting) (similar).
This Court’s earliest Indian-law jurisprudence offers
more evidence along the same lines. In Cherokee Nation v.
Georgia, “three distinct views of tribal sovereignty
emerged” on the question whether, “for purposes of Article
III,” the Cherokee Nation was a “foreign nation.” R. Tsosie,
Tribalism, Constitutionalism, and Cultural Pluralism:
Where Do Indigenous Peoples Fit Within Civil Society?, 5
8 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS v. COUGHLIN
GORSUCH, J., dissenting
U. Pa. J. Const. L. 357, 360–361 (2003). In the lead opinion
for the Court, Chief Justice Marshall emphasized that
“[t]he condition of the Indians in relation to the United
States is perhaps unlike that of any other two people in ex-
istence.” 5 Pet., at 16. For the limited purposes of Arti-
cle III, Chief Justice Marshall rejected the view that the
Tribes could, “with strict accuracy, be denominated foreign
nations.” Id., at 17 (emphasis added). Instead, he sug-
gested, “[t]hey may, more correctly, perhaps, be denomi-
nated domestic dependent nations.” Ibid. (emphasis
added). But notably, he did not describe the Tribes as “do-
mestic” for all purposes. To the contrary, he deliberately
chose the term nations, stressing also that “[i]n the general,
nations not owing a common allegiance are foreign to each
other.” Id., at 16. In that way, he said, “the relation of the
Indians to the United States is marked by peculiar and car-
dinal distinctions which exist no where else.” Ibid. Read in
context, the term “domestic dependent nations” is really a
term of art meant to capture Tribes’ “hybrid position” be-
tween “foreign and domestic states.” Price 670.
The remaining opinions in Cherokee Nation underscore
this message. Justice Johnson, concurring, rejected the
moniker “foreign state.” 5 Pet., at 27. But he also thought
it “very clear that the [C]onstitution neither speaks of ”
Tribes “as [S]tates or foreign states, but as just what they
were, Indian [T]ribes; an anomaly unknown to the books.”
Ibid. Justice Baldwin, also concurring, rejected the idea
that Tribes were “states, foreign or domestic.” Id., at 43(emphasis added). And Justice Thompson, joined by Justice
Story, dissented on the grounds that he thought the Chero-
kee had a chiefly “foreign character,” all things considered.
Id., at 55. All told, this Court split sharply as to the best
way to characterize the legal status of Tribes in relation to
the United States. But if there is one thing all Members of
the Court could have agreed on, perhaps it would be this:
Cite as: 599 U. S. ____ (2023) 9
GORSUCH, J., dissenting
Neither the term “foreign government” nor the term “do-
mestic government” adequately captures the Tribes’ unique
legal and political status.
This Court’s later decisions only give further reason to
doubt that Tribes are clearly “domestic government[s].” No
less than this Court’s first case analyzing tribal sovereign
immunity, Parks v. Ross, rested on the view that each Tribe
remains “in many respects” (but not all) “a foreign and in-
dependent nation.” 11 How., at 374 (emphasis added); see
Wood 1640 (describing Parks as “the first case of record in-
volving tribal immunity”). That language not only weighs
against treating Tribes as domestic governments. It does
so in precisely the context at issue here—sovereign immun-
ity. If we can assume that Congress “is aware of this
Court’s relevant precedents,” the notion that the Bank-
ruptcy Code abrogates tribal sovereign immunity is sunk.
Ysleta del Sur Pueblo v. Texas, 596 U. S. ___, ___ (2022) (slip
op., at 13). That seems like an especially safe assumption
here, given that Congress adopted its most recent version
of §106 after this Court—twice—held that the provision
failed our clear-statement rule as to other sovereigns. See
United States v. Nordic Village, Inc., 503 U. S. 30, 33–39
(1992); Hoffman v. Connecticut Dept. of Income Mainte-
nance, 492 U. S. 96, 98–104 (1989) (plurality opinion). That
the respondent in this case nowhere discussed Parks in his
briefing (and had nothing to say about it at argument, see
Tr. of Oral Arg. 43) speaks volumes.
Of course, respondent has bigger problems than just the
words this Court has used. He must contend with the real-
ity of this Court’s Indian-law jurisprudence, which in prac-
tice has consistently treated Tribes as a “constitutional hy-
brid, resembling [S]tates in certain respects and foreign
nations in others.” Price 670–671; see generally G. Ablav-
sky, Sovereign Metaphors in Indian Law, 80 Mont. L. Rev.
11 (2019). For example, while Congress has certain legis-
lative authority over tribal lands, the Tribes themselves
10 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
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GORSUCH, J., dissenting
need not abide by the Bill of Rights or the Fourteenth
Amendment. See Oliphant v. Suquamish Tribe, 435 U. S.
191, 194, n. 3 (1978) (citing Talton v. Mayes, 163 U. S. 376(1896)). Instead, they are governed by unique regimes of
civil and criminal jurisdiction involving overlapping “fed-
eral, tribal, and state authorities” unlike those employed
anywhere else. Oklahoma v. Castro-Huerta, 597 U. S. ___,
___, and n. 3 (2022) (GORSUCH, J., dissenting) (slip op., at
15, and n. 3). And their unique character makes their
brand of sovereign immunity “not congruent” with the im-
munity other sovereigns enjoy. Three Affiliated Tribes, 476
U. S., at 890.
Nor are Tribes alone in standing outside the foreign/do-
mestic dichotomy. Take the Court’s treatment of the so-
called Insular Territories. It depends entirely on the idea
that those Territories are neither foreign nor domestic, but
instead unique entities “foreign to the United States, in a
domestic sense.” Downes v. Bidwell, 182 U. S. 244, 341
(1901) (White, J., concurring); see also C. Burnett & B. Mar-
shall, Between the Foreign and the Domestic: The Doctrine
of Territorial Incorporation, Invented and Reinvented 30,
n. 3, in Foreign in a Domestic Sense: Puerto Rico, American
Expansion, and the Constitution (2001) (noting that the
Court has “unanimously and expressly adopted” that view).
No one could accuse me of having fondness for the Insular
Cases. See United States v. Vaello Madero, 596 U. S. ___,
___ (2022) (GORSUCH, J., concurring) (slip op., at 1). But
their existence is fatal for respondent’s theory. After all,
the Insular Territories are a close comparator to Tribes and
many have considered “both [T]ribes and [T]erritories [to]
share the same status as ‘ “foreign to the United States, in
a domestic sense.” ’ ” H. Babock, A Possible Solution to the
Problem of Diminishing Tribal Sovereignty, 90 N. D.
L. Rev. 13, 57 (2014). Tellingly, too, Congress expressly ab-
rogated any immunity Territories may enjoy under the
Bankruptcy Code. §101(27). Yet it did no such thing when
Cite as: 599 U. S. ____ (2023) 11
GORSUCH, J., dissenting
it came to the Tribes.
Respondent has no real answer to any of this. He cites
some cases in which this Court reprised the “domestic de-
pendent nations” language from Cherokee Nation. See Brief
for Respondent 21 (citing cases). But as we have seen, that
language actually stands for a view of Tribes flatly incon-
sistent with the “domestic government” characterization.
Taking away those examples leaves respondent with thin
gruel. He directs us to United States v. Coxe, 18 How. 100,
103 (1856). But that case observed only that “Cherokee ter-
ritory” counts as “domestic territory.” Ibid. (emphases
added). The decision thus plainly used the term “domestic”
only in its spatial sense. The same goes for Blatchford v.
Native Village of Noatak, 501 U. S. 775 (1991). There, this
Court recognized that Tribes are only “in some respects”
“more like States than foreign sovereigns.” Id., at 782.
Read with this context in mind, its statement that “[t]hey
are, for example, domestic,” referred only to their spatial
location. Ibid. Confirming this point, the rest of the para-
graph contrasted the Tribes’ physical “domesticity” with
features of their political relationship with the United
States. Ibid.More fundamentally, even granting respondent these ex-
amples would not do him any good. Just think of the bal-
ancing task we would face. On one side of the scale, we
would have a couple of scattered quotes (cherry-picked from
over two centuries of Indian-law jurisprudence) bandying
about the word “domestic” when describing certain features
of Tribes. On the other side of the scale, we would have the
text and history of the Constitution, supported by more
(and better) examples of this Court’s jurisprudence fashion-
ing rules of law treating Tribes as sui generis. Faced with
all that countervailing authority, the best respondent could
realistically hope for is that we declare §101(27) a jump
ball. And under our clear-statement rule, a jump ball is as
good as a possession arrow favoring the party opposing the
12 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
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GORSUCH, J., dissenting
abrogation of sovereign immunity.
B
Taking the “domestic government” possibility off the ta-
ble leaves only one other. Respondent falls back on the idea
that “foreign or domestic” is really just shorthand for “every
government under the Sun.” The Court relies solely on this
reading, holding that §102(27) “unequivocally abrogates the
sovereign immunity of any and every government that pos-
sesses the power to assert such immunity.” Ante, at 4. Get-
ting to that conclusion from the statutory text requires two
interpretive moves. First, the reader must treat the words
“foreign or domestic” as a single, undifferentiated clause
(rather than as a disjunctive grouping of descriptors). Sec-
ond, the reader must take that undifferentiated clause to
mean “anywhere and everywhere.” Each move is plausible;
neither is “clear.” And a problem with either is game over.
Start with the first move. Respondent would have us
read “foreign or domestic” as a unitary clause expressing a
single, shared idea. This is what linguists might call a hen-
diadys—“two terms separated by a conjunction [that] work
together as a single complex expression.” S. Bray, “Neces-
sary and Proper” and “Cruel and Unusual”: Hendiadys in
the Constitution, 102 Va. L. Rev. 687, 688 (2016). On occa-
sion, English employs that sort of construct. But those oc-
casions are the exceptions, not the rule. Nor is it clear that
is what we have here. As even respondent concedes, “or” in
“its ordinary use” instead indicates that “ ‘the words it con-
nects are to “be given separate meanings.” ’ ” Brief for Re-
spondent 23 (quoting United States v. Woods, 571 U. S. 31,
45–46 (2013)). A perfectly natural reading, then, would ask
whether Tribes clearly qualify as “foreign . . . govern-
ment[s]” or as “domestic government[s].” And because the
answer is “no” on both scores (for the reasons already laid
out above) the language flunks the clear-statement rule.
The second move has issues too. The case for treating
Cite as: 599 U. S. ____ (2023) 13
GORSUCH, J., dissenting
“foreign or domestic government” as synonymous with “any
government anywhere” rests on the premise that the terms
are “two extremes,” so that—by invoking both—Congress
meant to cover every part of an all-inclusive spectrum.
Ante, at 5. The Court analogizes to the phrase “near and
far,” which it argues sometimes means “all over the map.”
Ante, at 5–6. But the premise here is faulty and the analogy
inapt. “Near” and “far” may well be “two extremes”—one
would not speak of a location being both near and far at the
same time, for example. When it comes to sovereigns, how-
ever, the terms “foreign” and “domestic” do not share that
same quality. Rather, as we have seen, an extensive tradi-
tion supports treating certain sovereigns—Tribes among
them—as sui generis entities falling outside the foreign/do-
mestic dichotomy. That tradition is fatal under the clear-
statement rule.
How does respondent contend with this problem? At ar-
gument, he retreated from his briefing and relied instead
on a provision of the Bankruptcy Code stating that, for pur-
poses of that Code, “ ‘or’ is not exclusive.” Tr. of Oral Arg.
41 (citing §102(5)). From this, respondent reasoned, the
Bankruptcy Code abrogates tribal immunity because eve-
ryone can agree at least that Tribes bear some qualities of
both foreign and domestic governments.
The provision respondent cites simply does not do what
he seems to think it does. In common usage, the term “or”
can carry two meanings. The first is exclusive. It requires
full satisfaction of one—and exactly one—listed condition.
The second is inclusive. It requires full satisfaction of at
least one listed condition. All §102(5) does is favor the lat-
ter meaning for purposes of the Bankruptcy Code. Sound
complicated? Just look at an example. Suppose you tell
your child that he can get a pet so long as it is “small or a
dog.” The child can choose a small animal (like a hamster)
or a large dog (like a mastiff ). But can the child also choose
a small dog? If the “or” is inclusive (as respondent argues
14 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
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GORSUCH, J., dissenting
it is here), the answer is “yes.” If it is exclusive, the answer
is “no.” Critically, however, neither reading covers a
medium-sized aardvark. Such an animal may be somewhat
small and somewhat doglike, but two near misses do not
add up to a hit. This is a simple point but an important one.
Regardless of whether “or” is used inclusively or exclu-
sively, one of the input conditions must be satisfied.
With this point in mind, respondent’s reading collapses.
To see why, consider another example. Suppose you are a
houseguest, and your host invites you to “help yourself to
the chocolate or vanilla ice cream in the freezer.” Upon
opening the freezer, you find three tubs—vanilla, chocolate,
and Neapolitan. For argument’s sake, too, let’s say the last
tub also has a sticky note: “Do not eat without clear per-
mission.” Which ice cream can you take? If the host meant
“or” exclusively, you may take either chocolate or vanilla,
not both. If the host meant it inclusively, you may scoop
some of each. In neither event, however, would you have
permission to take the Neapolitan ice cream—especially
given the cautionary note. As a unique composite, it does
not clearly satisfy either of the necessary conditions. So too
here. Tribes may have some features of both domestic and
foreign governments, but they do not clearly qualify as ei-
ther, and they have some features found in neither. Accord-
ingly, §102(5) does nothing to rescue respondent’s cause.
If anything, §102(5) only sheds light on what the catchall
term “other foreign or domestic government” does cover.
That phrase sweeps up, as Chief Judge Barron explained in
dissent below, certain “otherwise excluded, half-fish, half-
fowl governmental entities like authorities or commissions
that are created through interstate compacts” (“ ‘other . . .
domestic government[s]’ ”) and “the joint products of inter-
national agreements” (“ ‘other foreign . . . government[s]’ ”).
33 F. 4th, at 615. Without the catchall, entities of these
sorts could potentially fall through the cracks. Tribes, by
contrast, are among the most significant entities wielding
Cite as: 599 U. S. ____ (2023) 15
GORSUCH, J., dissenting
sovereign immunity. They are a unique form of govern-
ment—and they alone are nowhere mentioned.
The Court offers two responses. Above the line, it
asks why Territories are encompassed within §101(27)’s
immunity-abrogation provision if they share the same sta-
tus of Tribes—neither foreign nor domestic. Ante, at 13.
The answer, of course, is that Congress expressly listed Ter-
ritories; it did not do the same for Tribes. Nor do I see how
Congress’s choice to include Territories supports the
Court’s suggestion that the term “other foreign or domestic
government” clearly covers all governments. To the con-
trary, under the Court’s interpretation of that term, the ex-
press inclusion of Territories becomes curious surplusage.
And to the extent the Court thinks Congress mentioned
Territories just to be doubly clear that the term “other for-
eign or domestic government” really does cover all govern-
ments—adopting a kind of belt-and-suspenders approach—
isn’t it odd that Congress left one of the most notable types
of sovereigns (a key part of its “belt”) at home?
Below the line, the Court simply asserts (without analy-
sis or support) that “the terms ‘foreign’ and ‘domestic’ are
two poles on a spectrum.” Ante, at 12–13, n. 7. It does not
grapple, however, with the many decisions of this Court dis-
cussed above that contradict that premise—and that do so
in the precise context of Indian law (in general) and sover-
eign immunity (in particular). See supra, at 6–11. Nor does
it grapple with the reality that, even if the terms were two
poles on a spectrum, many Justices of this Court have sug-
gested that Indian Tribes do not fall along that continuum
at all and are instead “just what they [are], Indian [T]ribes.”
Cherokee Nation, 5 Pet., at 27 (Johnson, J., concurring).
Others of course have disagreed. But that disagreement is
no help to the Court under our clear-statement rule. It is
dispositive the other way.
16 LAC DU FLAMBEAU BAND OF LAKE SUPERIOR
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GORSUCH, J., dissenting
III
Unable to demonstrate that the statute’s terms clearly
abrogate tribal immunity, respondent and the Court stress
that §101(27) as a whole “exudes comprehensiveness.”
Ante, at 5. That is obviously true but not obviously helpful.
Really, the express inclusion of so many other types of sov-
ereigns in the Bankruptcy Code’s abrogation provision only
deepens the mystery why Tribes are nowhere mentioned.
Normally, after all, when Congress includes so many items
within “ ‘[an] associated group,’ ” we assume the omission of
another means that it has been deliberately “ ‘exclude[d].’ ”
Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73, 80 (2002).
Nor, for that matter, has this Court ever held that a stat-
ute’s general atmospherics can satisfy the clear-statement
rule when the text itself comes up short.
The Court also invokes the Bankruptcy Code’s purposes.
It contends that Congress designed the Code in part to
“offe[r] debtors a fresh start,” that its provisions were in-
tended to “sweep broadly,” and that petitioners’ view of the
statute could “upen[d] the policy choices that the Code em-
bodies.” Ante, at 6–8. In a similar vein, the Court wonders
what reason Congress possibly could have had for excluding
Tribes from its abrogation provision. Ibid. These are fair
questions and concerns. Some of them I share. But they,
too, have no place in a case like this one. For purposes of
satisfying a clear-statement rule, attempts to “construe”
§106 “in light of the policies underlying the Bankruptcy
Code are unavailing.” Hoffman, 492 U. S., at 104 (plurality
opinion). Perhaps Members of Congress had good reasons
for failing to include Tribes in §101(27). Perhaps their de-
cision reflected a measured political compromise. Or per-
haps the issue of tribal immunity simply never came up. In
all events, the result is the same. Absent some clear textual
indication, there can be no abrogation.
Setting aside those policy concerns leaves the Court with
a methodological one. It fears adopting my approach could
Cite as: 599 U. S. ____ (2023) 17
GORSUCH, J., dissenting
transmute our clear-statement rule into some sort of magic-
words test. Ante, at 10. I do not see how it could. Congress
could identify Tribes in any number of unmistakable
ways—“Indians,” “Native Americans,” “Indigenous Peo-
ples,” or even (as we have seen) “domestic dependent na-
tions.” Congress has had no trouble using language like
that in plenty of other statutory contexts. See, e.g., 7
U. S. C. §8310; 42 U. S. C. §8802(17); 49 U. S. C. §5121(g).
Alternatively, Congress could identify Tribes by descrip-
tion—for instance, “any other government that operates, in
whole or in part, within the territorial bounds of the United
States.” See 33 F. 4th, at 622 (Barron, C. J., dissenting).
Alternatively still, Congress could abrogate all sovereign
immunity through some unequivocal statement to that ef-
fect—using, for example, the Court’s own formulation, “any
and every government.” Ante, at 4. The only thing Con-
gress cannot do is use “oblique or elliptical language” to
“supply a clear statement.” West Virginia v. EPA, 597 U. S.
___, ___ (2022) (GORSUCH, J., concurring) (slip op., at 13)
(internal quotation marks and alterations omitted). Be-
cause that is—at best—what the Bankruptcy Code pro-
vides, I respectfully dissent.