The US Supreme Court Monday heard oral arguments in Lac du Flambeau Band v. Coughlin, which focuses on the effect of the Bankruptcy Code on the sovereign immunity of Native American tribes. The court will consider the question of whether Congress intended to allow people to sue Native American tribes in bankruptcy disputes and will then determine whether the waiver of immunity under the Bankruptcy Reform Act for foreign or domestic government extends to these Native American tribes.

The Bankruptcy Code revokes sovereign immunity from the United States, department agencies and “other foreign or domestic government[s].” Attorneys for Lac du Flambeau Band (Flambeau) argued that American Indian tribes do not fall under the foreign or domestic governments category. Flambeau argued that the code does not refer to American Indian tribes because Congress did not specifically name them as they have in the past. The tribe also argued that Congress has never revoked sovereign immunity from American Indian tribes without directly mentioning tribes, a point which Chief Justice Roberts acknowledged.

Attorneys for Coughlin argued that the code should be construed as to revoke sovereign immunity from American Indian tribes. It was argued that tribes are a type of domestic governmental units which the statute distinctly includes. Coughlin also points to the fact that the Supreme Court has previously determined that Congress need not use specific “magic words”.

Justices Elena Kagan and Brett Kavanaugh both pointed to the fact that Congress has historically listed tribes in their statutes. Kagan even stated that it was “odd” that the statute listed agencies that rarely appear before the Supreme Court but not American Indian tribes.