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

599 U.S. 382

• Court: Supreme Court of the United States
• Decided: June 15, 2023
• Docket: 22-227
• Status: Published

Opinion

PRELIMINARY PRINT

Volume 599 U. S. Part 1 Pages 382–418

OFFICIAL REPORTS OF

THE SUPREME COURT June 15, 2023

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users 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. 382 OCTOBER TERM, 2022

Syllabus

LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS et al. v. COUGHLIN certiorari to the united states court of appeals for the rst 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 fled 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 fled a motion in Bankruptcy Court to enforce the automatic stay and recover 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. Page Proof Held: The Bankruptcy CodePending Publication unambiguously abrogates the sovereign im- munity of all governments, including federally recognized Indian tribes. Pp. 386–399. (a) Two provisions of the Bankruptcy Code lie at the heart of this case. The frst, 11 U. S. C. § 106(a), expressly abrogates the sovereign immunity of “governmental unit[s]” for enumerated purposes. The sec- ond, § 101(27), defnes “governmental unit” as “United States; State; Commonwealth; District; Territory; municipality; foreign state; depart- ment, 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 provi- sions to abrogate tribal sovereign immunity, Congress “must [have made] its intent . . . `unmistakably clear in the language of the statute.' ” Financial Oversight and Management Bd. for P. R. v. Centro De Peri- odismo Investigativo, Inc., 598 U. S. 339, 346. If the statute can plausi- bly be read to preserve sovereign immunity, Congress has not unambig- uously 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. 386–388. (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 ft that Cite as: 599 U. S. 382 (2023) 383

description, the Code's abrogation provision plainly applies to them as well. Pp. 388–399. (1) Several features of the statute's text and structure point the way. To start, the defnition of “governmental unit” exudes comprehen- siveness. It begins with a long list of governments, varying in location, nature, and size. It then proceeds to capture subdivisions and compo- nents of every government in that list. And it concludes with a broad catchall phrase, sweeping in “other foreign or domestic government[s].” § 101(27). Moreover, the catchall phrase's pairing of extremes—i.e., “foreign or domestic”—appearing at the end of an extensive list unam- biguously indicates Congress's intent to cover all governments in § 101(27)'s defnition. The abrogation provision in § 106(a) in turn ap- plies to every “governmental unit” in § 101(27). It does not cherry-pick certain types of governments from that capacious list. Pp. 388–390. (2) Other provisions of the Bankruptcy Code reinforce § 106(a)'s 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 provi- sion, 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 enti- ties when they act as creditors. See, e. g., § 362(b)(4). Reading the statute to carve out certain governments from the defnition of “gov- ernmental unit”—as petitioners would have the Court do—risks upending the policy choices that the Code embodies. And there is no indication that Congress meant to categorically exclude certain govern- ments from these provisions' enforcement mechanisms and exceptions. Pp. 390–392. (3) Federally recognized tribes are indisputably governments. They exercise uniquely governmental functions, and both Congress and this Court have repeatedly characterized them as governments. Ac- cordingly, because the Bankruptcy Code unequivocally abrogates the sovereign immunity of all governments, and tribes undoubtedly count as governments, the Code unmistakably abrogates tribal sovereign im- munity. Pp. 392–393. (c) Petitioners fail to sow doubt into these clear statutory provisions. Pp. 393–399. (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 specifcally in other statutes 384 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Syllabus

abrogating tribal sovereign immunity does not foreclose it from using different language to accomplish that same goal in other statutory con- texts. Pp. 393–395. (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 enactment. Yet petitioners fail to demonstrate that the Code—which comprehen- sively revised bankruptcy practice—carried forward any such differen- tial treatment. Pp. 395–399. 33 F. 4th 600, affrmed.

Jackson, J., delivered the opinion of the Court, in which Roberts,

C. J., and Alito, Sotomayor, Kagan, Kavanaugh, and Barrett, JJ., joined. Thomas, J., fled an opinion concurring in the judgment, post, p. 399. Gorsuch, J., fled a dissenting opinion, post, p. 402.

Pratik A. Shah argued the cause for petitioners. With him on the briefs were Z. W. Julius Chen, Lide E. Paterno, Andrew Adams III, Patrick McAndrews, Zachary R. G. Fairlie, and Andrew W. Lester. Gregory G. Rapawy argued the cause for respondent. With him on the brief were Matthew N. Drecun, Terrie L. Harman, and Richard N. Gottlieb. Austin L. Raynor argued the cause for the United States as amicus curiae urging affrmance. With him on the brief were Solicitor General Prelogar, Principal Deputy Assist- ant Attorney General Boynton, Deputy Solicitor General Kneedler, Mark B. Stern, and Martin Totaro.*

*Briefs of amici curiae urging reversal were fled for Indian Law Pro- fessors by April Youpee-Roll, Matthew L. M. Fletcher, pro se, and Kaighn Smith, Jr.; and for the Navajo Nation et al. by Naomi J. Barnes, Paul Cite as: 599 U. S. 382 (2023) 385

Opinion of the Court

Justice Jackson delivered the opinion of the Court. The Bankruptcy Code expressly abrogates the sovereign immunity of “governmental unit[s]” for specifed 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 fnd 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 fnd it has been satisfed 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 fled for Chapter 13 bank- ruptcy before he fully repaid the loan. Under the Bankruptcy Code, Coughlin's fling of the bank- ruptcy petition triggered an automatic stay against further collection efforts by creditors, including Lendgreen. See § 362(a). Yet, according to Coughlin, Lendgreen continued its efforts to collect on his debt, even after it was reminded of the pending bankruptcy petition. Coughlin alleges that Lendgreen was so aggressive in its efforts to contact him and collect the money that he suffered substantial emotional dis- tress, and at one point, even attempted to take his own life.

Spruhan, Louis Mallette, Sage Metoxen, John T. Plata, Joseph H. Webster, Kaitlyn E. Klass, and Gregory A. Smith. Briefs of amici curiae urging affrmance were fled for the Citizens Equal Rights Foundation by Lawrence A. Kogan; for NACBA et al. by G. Eric Brunstad, Jr., David A. Herman, and Daniel J. Bussel; for Public Citizen et al. by Allison M. Zieve and Scott L. Nelson; and for the Separa- tion of Powers Clinic by R. Trent McCotter. 386 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Opinion of the Court

Coughlin eventually fled a motion in Bankruptcy Court, seeking to have the stay enforced against Lendgreen, its par- ent corporations, and the Band (collectively, petitioners). 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 sub- sidiaries 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 immunity. 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 Cough- lin, 33 F. 4th 600, 603–604 (2022). In so holding, the First Circuit 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 Bankruptcy Code abrogates tribal sovereign immunity), with In re Greektown Holdings, LLC, 917 F. 3d 451, 460–461 (CA6 2019) (concluding the reverse). We granted certiorari to address 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 frst—11 U. S. C. § 106(a)—abrogates the

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 immu- nity. In re Coughlin, 33 F. 4th 600, 604, n. 1 (CA1 2022); In re Coughlin, 622 B. R. 491, 493 (Bkrtcy. Ct. Mass. 2020). Cite as: 599 U. S. 382 (2023) 387

sovereign immunity of “governmental unit[s].” It provides: “Notwithstanding an assertion of sovereign immunity, sover- eign 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 abrogation applies, including the provision governing automatic stays. The second relevant provision is § 101(27). That provision defnes “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 Dis- trict, a Territory, a municipality, or a foreign state; or other foreign or domestic government.” The central question before us is whether the abrogation Page Proof provision in Pending § 106(a) and the defnitionPublication 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 stat- ute.' ” Financial Oversight and Management Bd. for P. R. v. Centro De Per iodismo Investigativo, Inc., 598 U. S. 339, 346 (2023). This well-settled rule applies to federally recognized tribes no less than other defendants with sover- eign immunity. Ibid. We have held that tribes possess the “common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U. S. 49, 58 (1978). Our cases have thus repeatedly empha- sized that tribal sovereign immunity, absent a clear state- ment of congressional intent to the contrary, is the “baseline position.” Michigan v. Bay Mills Indian Community, 572 U. S. 782, 790 (2014). 388 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Opinion of the Court

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 unambiguously expressed the requisite intent. FAA v. Cooper, 566 U. S. 284, 290 (2012); accord, United States v. Nordic Village, 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 statement in a single [statutory] section.” Kimel v. Florida Bd. of Re- gents, 528 U. S. 62, 76 (2000). The clear-statement question is simply whether, upon applying “traditional” tools of statu- tory interpretation, Congress's abrogation of tribal sover- eign immunity is “clearly discernable” from the statute itself. Cooper, 566 U. S., at 291. III Page Proof We conclude that thePending Publication 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 ft that description; therefore, the Code's abrogation provision plainly applies to them as well. A Several features of the provisions' text and structure com- pel this conclusion. As an initial matter, the defnition 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 Cite as: 599 U. S. 382 (2023) 389

States . . . , a State, a Commonwealth, a District, a Territory, 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 defning “commerce” to include a list of specifc 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 Beneft Plan v. DaVita Inc., 596 U. S. –––, –––, n. 1 (2022) (similar). We fnd the strikingly broad scope of § 101(27)'s defnition of “govern- mental unit” to be signifcant in this context as well. The catchall phrase Congress used in § 101(27) is also nota- ble 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 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' headquarters. Similarly, at the start of each Congress, a cadre of newly elected offcials “ `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 Bank- ruptcy Code took—indisputably pertains to enemies any- 390 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Opinion of the Court

where in the world. Accordingly, we fnd that, by coupling foreign and domestic together, and placing the pair at the end of an extensive list, Congress unmistakably intended to cover all governments in § 101(27)'s defnition, whatever their location, nature, or type. It is also signifcant that the abrogation of sovereign im- munity in § 106(a) plainly applies to all “governmental unit[s]” as defned 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. Instead, Congress categorically abrogated the sovereign im- munity of any governmental unit that might attempt to as- sert it. B

Page Proof Other aspects Pending of the Bankruptcy CodePublication § 106(a)'s and § 101(27)'s plain text conveys. reinforce what

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 Collier on Bankruptcy ¶1.01 (16th ed. 2023); Lamar, Ar- cher & Cofrin, LLP v. Appling, 584 U. S. –––, ––– (2018). The automatic-stay requirement, for example, keeps credi- tors from “dismember[ing]” the estate while the bankruptcy case proceeds. Chicago v. Fulton, 592 U. S. –––, ––– (2021); 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- confrmation 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). Cite as: 599 U. S. 382 (2023) 391

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 provisions' basic requirements generally apply to all creditors.2 Courts can also enforce these requirements against any kind of noncom- pliant creditor—whether or not the creditor is a “govern- mental 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 instance, the automatic-stay requirement does not preclude “govern- mental unit[s]” from enforcing their “police and regulatory power[s]” in certain proceedings, § 362(b)(4), or from pur- suing specifc tax-related activities, §§ 362(b)(9), (18), (26). The Code additionally exempts from discharge certain debts for a “fne, penalty, or forfeiture” owed to a “governmental unit.” § 523(a)(7). Reading the statute to carve out a subset of governments from the defnition 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 fnely tuned to accommodate 2 11 U. S. C. § 362(a) (the fling 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 confrmed plan bind the debtor and each creditor” (emphasis added)). 392 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Opinion of the Court

essential governmental functions (like tax administration and regulation) as a general matter, petitioners would have us fnd that certain governments are excluded from those provisions' reach, notwithstanding the fact that they engage in tax and regulatory activities too. There is no indication that Congress meant to categorically exclude certain govern- ments from these provisions' enforcement mechanisms and exceptions, let alone in such an anomalous manner. Cf. Law v. Siegel, 571 U. S. 415, 424 (2014) (declining to read into the Code an exception Congress did not include in its “meticu- lous” 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 55–56 (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 charac- terized tribes as governments.3 And this Court has long 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-government relationship with Indian tribes,” and “transferring control to tribal gov- ernments . . . over funding and decisionmaking for Federal programs”); 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 Cite as: 599 U. S. 382 (2023) 393

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 specifc 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 attributes”). 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 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) mentions Indian tribes by name. Had Congress wanted to abrogate tribal sovereign immunity, petitioners claim, the most natu- ral and obvious way to have expressed that intent would have been to reference Indian tribes specifcally, rather than smuggle them into a broadly worded catchall phrase.

governments in the federal constitutional system,” and “reorganize 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 (insisting tribes are not clearly domestic governments), and post, at 406–412 (Gor- such, J., dissenting) (similar), with Brief for Respondent 40–41 (contend- ing that they are). See also infra, at 395–397. 394 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Opinion of the Court

But, as explained at the outset, supra, at 388, the clear- statement rule is not a magic-words requirement. Thus, Congress did not have to include a specifc reference to feder- ally recognized tribes in order to make clear that it intended 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 prac- tice. In statute after statute, they say, Congress has spe- cifcally mentioned Indian tribes when abrogating their sov- ereign immunity. And in no case has this Court ever found an abrogation of tribal sovereign immunity where the stat- ute did not reference Indian tribes explicitly. See Brief for Petitioners 24–26. These statistics sound quite noteworthy at frst 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, 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

5 Petitioners rely, for instance, on the Resource Conservation and Recov- ery Act of 1976, which authorizes a “person” to “commence a civil action.” 42 U. S. C. § 6972(a). “Person” is defned under that statute to include a “municipality,” which is in turn defned to encompass “a city, town, bor- ough, county, parish, district, or other public body created by or pursuant to State law . . . or an Indian tribe or authorized tribal organization.” §§ 6903(13), (15); see also Brief for Petitioners 25 (citing similar provisions). The fact that Congress mentioned Indian tribes specifcally when including them in the category of a “person” or “municipality” says little about Con- gress's purported need to name Indian tribes when referring to them as a “governmental unit” or “other foreign or domestic government.” 6 The parties' briefng identifes 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). Cite as: 599 U. S. 382 (2023) 395

In any event, the fact that Congress has referenced tribes specifcally 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 quota- tion marks omitted). For the reasons discussed above, we believe Congress did just that.

B Petitioners further contend that even if the relevant provi- sions could theoretically cover tribes, the statute can plausi- bly be read in a way that preserves their immunity.

1 According to petitioners, the catchall phrase “other foreign or domestic government” might simply capture entities cre- ated 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, peti- tioners maintain, the catchall phrase would exclude govern- mental entities that are not purely foreign or purely domes- tic—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 fnd petitioners' construction plausi- ble, we would have to interpret “other foreign or domestic government” to impose a rigid division between foreign governments 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 396 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Opinion of the Court

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 entail.7 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 407, 409–410 (opinion of Gorsuch, J.), and posits that Territories histori- cally share this hybrid status as well, post, at 411 (describing Territories as tribes' “close comparator”). Yet, as the dis- sent readily acknowledges, Congress expressly included Ter- ritories within § 101(27)'s defnition of “governmental unit.” If, on the dissent's own account, Territories are “neither for- eign nor domestic,” ibid.—and fall within § 101(27)'s purview 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)). 7 Our dissenting colleague puts forth two hypotheticals that supposedly cast doubt on this conclusion. See post, at 414–415 (opinion of Gorsuch, J.). The frst 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 “foreign or domes- tic.” For one thing, the terms “foreign” and “domestic” are two poles on a spectrum. See supra, at 389–390. Neither “small” and “dog” nor “chocolate” and “vanilla” ft that bill. For another, whereas the pairing of “foreign” and “domestic” often covers the waterfront, see ibid., 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 falls. See post, at 407 (observing that the Constitution “appear[s] to `place Indian [T]ribes in an intermediate category between foreign and domestic states' ”); post, at 409 (tribes occupy a “ `hybrid position' between `foreign and domestic states' ”). Cite as: 599 U. S. 382 (2023) 397

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, supra, 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 govern- ments to enforcement proceedings while at the same time immunizing government creditors that have both foreign and domestic attributes. Considering that the one thing every entity in § 101(27)'s enumerated list has in common is its gov- ernmental nature—and that is the same characteristic that matters when the Code addresses “governmental unit[s]” from one provision to the next8 —we are highly skeptical that Congress distinguished between governments in the way petitioners suggest. 2

Page Proof Undaunted, Pending petitioners Publication note that Congress has historically treated various types of governments differently for pur- poses 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 cer- tain benefts to “ `the United States or any State or any sub- division thereof,' ” leaving out entities that did not fall into one of those enumerated categories. Reply Brief 21 (quot- ing § 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

8 For example, the Code defnes “domestic support obligation” to include 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 defnitions is their governmental nature. 398 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Opinion of the Court

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 compre- hensive revision of the bankruptcy laws”). Both § 101(27)'s defnition of “governmental unit” and § 106(a)'s abrogation of sovereign immunity were some of the many changes Con- gress made. The prior statute did not provide a general defnition for governmental entities, much less include any provision expressly abrogating governments' sovereign im- munity. Instead, it set forth a general defnition for “States,” which encompassed Territories, possessions, and the District of Columbia. 52 Stat. 842. Then, in each provi- sion where governmental entities were relevant, Congress specifed 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 municipality”); id., at 874 (providing priority status to “the United States or any State or any subdivision thereof ”). Section 101(27)'s defnition of “governmental unit” has an undeniably broader reach than the statutory provisions that preceded it. Section 101(27)'s defnition includes, for in- stance, foreign countries and instrumentalities, when such entities had generally been previously absent. And the ex- pansive defnition of “governmental unit” in § 101(27) applies throughout the Bankruptcy Code. In addition, for those who fnd legislative history useful, the Senate and House Re- ports that accompanied the Code indicate that “governmen- tal unit” was intended to be defned “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 defnition of govern- Cite as: 599 U. S. 382 (2023) 399

Thomas, J., concurring in judgment

mental unit that Congress used to specify 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 govern- ments 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 fnd that the First Circuit correctly concluded that the Bankruptcy Code unambiguously abrogates tribal sovereign immunity. Therefore, the decision below is affrmed.

It is so ordered.

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 conducted beyond its territory.” Michigan v. Bay Mills Indian Com- munity, 572 U. S. 782, 815 (2014) (dissenting opinion). Be- cause respondent's stay-enforcement motion arose from peti- tioners' 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 refect the realities of modern-day Indian tribes.” Upper Skagit Tribe v. Lundgren, 584 U. S. –––, ––– (2018) (Thomas, J., dissent- ing) (internal quotation marks omitted). To the extent that tribes have any sovereign immunity at all, it is a common- 400 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Thomas, J., concurring in judgment

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 sovereign faces suit in the courts of another.” Id., at 816 (internal quotation marks omitted). Rather, it “normally depends on the sec- ond sovereign's law” as a matter of comity. Ibid. (internal quotation marks omitted). Because no federal 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 for- eign nations, comity has long been discarded as a suffcient 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 substantial 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 sovereign State.” Id., at 818. Thus, to grant tribes a unique and unjustifed immunity from both federal and state jurisdiction for com- mercial 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 support their claim to immunity in federal court for their off-reservation com- mercial 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 ––– – –––, as well as those of the Federal Government, id., at ––– (col- lecting cases). This immunity stems from the Constitution Cite as: 599 U. S. 382 (2023) 401

itself and belongs only to the 50 States through their ratif- cation of the Constitution or admission to the Union on an equal footing with the original States. See Alden v. Maine, 527 U. S. 706, 713 (1999). As a result, it is distinct from common-law immunity, 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 judi- cial fat, a form of immunity that the Constitution accords to the 50 States, and only the 50 States. Finally, this Court's tribal immunity doctrine continues to artifcially exempt tribes from generally applicable laws. I warned nearly a decade ago that tribal immunity “will con- tinue to invite problems, including de facto deregulation of highly regulated activities; unfairness to tort victims; and increasingly fractious relations with States and individuals 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 profts with tribes so they can use tribal immunity as a shield for conduct of questionable legal- ity.” 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 immu- nity 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 inter- vening 16 years, its error has grown more glaringly obvious; and that stare decisis does not recommend its retention”); id., at 831 (Ginsburg, J., dissenting) (“[T]his Court's declara- tion of an immunity thus absolute was and remains exorbi- tant”). Further, the doctrine simply cannot be reconciled 402 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Gorsuch, J., dissenting

with the Court's precedents affrming “that the States have legislative jurisdiction over the off-reservation conduct of In- dian tribes, and even over some on-reservation activities.” Kiowa, 523 U. S., at 762 (Stevens, J., dissenting) (describing the Court's prior cases). Rather than accepting the fawed premise of tribal immunity and deciding the abrogation ques- tion beyond the looking glass, the Court should simply aban- don its judicially created tribal sovereign immunity doctrine.

Justice Gorsuch, dissenting. Until today, there was “not one example in all of history where [this] Court ha[d] found that Congress intended to ab- rogate 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 gov- ernment,” ante, at 388—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 im- munity, the Legislature must “unequivocally express” its in- tent to achieve that result. C & L Enterprises, Inc. v. Citizen 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, ev- erywhere. But it could also mean what it says: every “other foreign . . . government”; every “other . . . domestic govern- ment.” And properly understood, Tribes are neither of those things. Instead, the Constitution's text—and two cen- turies of history and precedent—establish that Tribes enjoy a unique status in our law. Because this reading of the stat- Cite as: 599 U. S. 382 (2023) 403

Gorsuch, J., dissenting

ute is itself (at worst) a plausible one, I would hold that the Bankruptcy Code funks this Court's clear-statement rule and reverse. I As the Court reaffrms today, “the doctrine of tribal immu- nity is settled law.” Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751, 756 (1998); see ante, at 387– 388. 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) (Gor- such, J., concurring); see, e. g., United States v. Wheeler, 435 U. S. 313, 322 (1978); Worcester 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 Affliated 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) (internal quo- tation 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 tradition that traces back over 170 years, see Parks v. Ross, 11 How. 362, 374 (1851). See also W. Wood, It Wasn't an Accident: The Tribal Sover- eign Immunity Story, 62 Am. 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- 404 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Gorsuch, J., dissenting

een, 599 U. S., at ––– (opinion of Gorsuch, J.). But the choice to abrogate tribal immunity is fundamentally 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 responsibility, 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 conficts and reprisals, this Court employs an addi- tional interpretive guardrail—“a clear statement require- ment 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 Na- tions 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. 339, 342 (2023). 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” sovereignty absent pel- lucid evidence to the contrary. Bay Mills, 572 U. S., at 790. All this explains the now-familiar clear-statement rule 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 language Cite as: 599 U. S. 382 (2023) 405

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, “[n]otwithstanding 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; municipal- ity; 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.” § 101(27). That is a lot of words. For present purposes, however, only the last fve 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 options from there. No one thinks Tribes qualify as “for- eign . . . government[s].” That leaves only two possibilities. Tribes could qualify as “ `domestic governments' ”—respond- ent's lead argument. Tr. of Oral Arg. 41. Or the phrase “other foreign or domestic government,” read as a whole, could mean “any and every government”—respondent's backup argument and the one the Court adopts today. Ante, at 388. Neither possibility is the slam dunk our famil- iar clear-statement rule requires. Consider each in turn. 406 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Gorsuch, J., dissenting

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 confnes of the United States. Or it could mean politically domestic—i. e., a sub- part of the United States. Contemporary defnitions sup- port each of those possibilities and only those possibilities. See, e. g., Random House Dictionary of the English Language 581 (2d ed. 1987) (“of or pertaining to one's own or a particu- lar country as apart from other countries”); American Heri- tage 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' territorial bounds—although that was not true for most of the Nation'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 al- ways. 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 pro- visions to not apply to Canada-born “American” Indians); Akins v. Saxbe, 380 F. Supp. 1210, 1218–1222 (Me. 1974) (sim- ilar). Evidently, our neighbor to the north has encountered similar diffculties. See R. v. Desautel, 2021 SCC 17 (analyz- ing 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 Cite as: 599 U. S. 382 (2023) 407

status of governments, this Court has long recognized that geography takes a backseat. Whether a government quali- fes 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 Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 851 (1985). Signifcant 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 Sover- eignty in Tribal and Territorial Criminal Jurisdiction, 113 Colum. L. Rev. 657, 670 (2013) (Price). At least two provi- sions illustrate 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 Tribes.” Art. I, § 8, cl. 3. The inclusion of that third Commerce Clause power suggests that Tribes were not reachable either by Congress's foreign commerce power or by its domestic (interstate) commerce power. More obscure but no less probative is the Constitution's ex- emption from the apportionment formula of all “Indians not taxed.” Art. I, § 2, cl. 3; Amdt. 14, § 2. That choice recog- nizes that Tribes are not fully “domestic” to the United States, and instead stand “separate from the polity.” Price 670. 408 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Gorsuch, J., dissenting

These provisions, too, refected 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, before 1871 the United States (and, prior to that, Great Britain) chiefy man- aged tribal relations by way of treaty. Entering into those treaties “admit[ted]” that the Tribes “rank among those pow- ers 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) (linking Tribes' “ `ca- pacity to make treaties' ” with their unique “ `semi- independent' ” status, allowing them to control “ `their do- mestic government' ” (quoting United States v. Joseph, 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. Geor- gia, “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, Tribal- ism, Constitutionalism, and Cultural Pluralism: Where Do Indigenous Peoples Fit Within Civil Society?, 5 U. Pa. J. Const. L. 357, 360–361 (2003). In the lead opinion for the Court, Chief Justice Marshall emphasized that “[t]he condi- tion of the Indians in relation to the United States is perhaps unlike that of any other two people in existence.” 5 Pet., at 16. For the limited purposes of Article III, Chief Justice Marshall rejected the view that the Tribes could, “with strict accuracy, be denominated foreign nations.” Id., at 17 (em- phasis added). Instead, he suggested, “[t]hey may, more correctly, perhaps, be denominated domestic dependent na- Cite as: 599 U. S. 382 (2023) 409

tions.” Ibid. (emphasis added). But notably, he did not de- scribe the Tribes as “domestic” for all purposes. To the con- trary, 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 cardinal distinctions which exist no where else.” Ibid. Read in context, the term “domestic depend- ent nations” is really a term of art meant to capture Tribes' “hybrid position” between “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 chiefy “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: 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 frst 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 inde- pendent nation.” 11 How., at 374 (emphasis added); see Wood 1640 (describing Parks as “the frst case of record in- 410 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Gorsuch, J., dissenting

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 immu- nity. If we can assume that Congress “is aware of this Court's relevant precedents,” the notion that the Bankruptcy Code abrogates tribal sovereign immunity is sunk. Ysleta del Sur Pueblo v. Texas, 596 U. S. –––, ––– (2022). 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 Maintenance, 492 U. S. 96, 98– 104 (1989) (plurality opinion). That the respondent in this case nowhere discussed Parks in his briefng (and had noth- ing 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 legislative authority over tribal lands, the Tribes themselves 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)). In- stead, they are governed by unique regimes of civil and crim- inal jurisdiction involving overlapping “federal, tribal, and state authorities” unlike those employed anywhere else. Oklahoma v. Castro-Huerta, 597 U. S. –––, –––, and n. 3 (2022) (Gorsuch, J., dissenting). And their unique charac- ter makes their brand of sovereign immunity “not congru- Cite as: 599 U. S. 382 (2023) 411

ent” with the immunity other sovereigns enjoy. Three Af- fliated Tribes, 476 U. S., at 890. Nor are Tribes alone in standing outside the foreign/ domestic 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). But their exist- ence 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. Babcock, A Possible Solution to the Problem of Diminishing Tribal Sovereignty, 90 N. D. L. Rev. 13, 57 (2014). Tellingly, too, Congress expressly abrogated any im- munity Territories may enjoy under the Bankruptcy Code. § 101(27). Yet it did no such thing when 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 dependent 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 fatly in- consistent 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, 412 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Gorsuch, J., dissenting

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. Confrming this point, the rest of the paragraph 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 balanc- ing 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 fashioning rules of law treating Tribes as sui generis. Faced with all that countervailing authority, the best respondent could real- istically 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 abro- gation of sovereign immunity.

B Taking the “domestic government” possibility off the table 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- Cite as: 599 U. S. 382 (2023) 413

sesses the power to assert such immunity.” Ante, at 388. Getting 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). Second, 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 frst 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 hendiadys—“two terms separated by a conjunction [that] work together as a single complex expression.” S. Bray, “Necessary and Proper” and “Cruel and Unusual”: Hendia- dys in the Constitution, 102 Va. L. Rev. 687, 688 (2016). On occasion, English employs that sort of construct. But those occasions 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 connects are to “be given separate meanings.” ' ” Brief for Respondent 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 funks the clear-statement rule. The second move has issues too. The case for treating “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 389. The Court analogizes to the phrase “near and far,” which it argues sometimes means “all over the map.” Ibid. 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 414 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Gorsuch, J., dissenting

time, for example. When it comes to sovereigns, however, the terms “foreign” and “domestic” do not share that same quality. Rather, as we have seen, an extensive tradition supports treating certain sovereigns—Tribes among them— as sui generis entities falling outside the foreign/domestic dichotomy. That tradition is fatal under the clear-statement rule. How does respondent contend with this problem? At ar- gument, he retreated from his briefng 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 every- one 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 frst 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 latter meaning for purposes of the Bankruptcy Code. Sound com- plicated? 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 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. Regard- less of whether “or” is used inclusively or exclusively, one of the input conditions must be satisfed. With this point in mind, respondent's reading collapses. To see why, consider another example. Suppose you are a Cite as: 599 U. S. 382 (2023) 415

houseguest, and your host invites you to “help yourself to the chocolate or vanilla ice cream in the freezer.” Upon opening the freezer, you fnd 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 permis- sion.” 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 permis- sion 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 either, and they have some features found in neither. Accordingly, § 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-fsh, 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 signifcant entities wielding 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 status of Tribes—neither foreign nor domestic. Ante, at 396. The answer, of course, is that Congress expressly listed Territo- ries; it did not do the same for Tribes. Nor do I see how Congress's choice to include Territories supports the Court's 416 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Gorsuch, J., dissenting

suggestion that the term “other foreign or domestic govern- ment” clearly covers all governments. To the contrary, under the Court's interpretation of that term, the express 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 foreign or domes- tic government” really does cover all governments—adopt- ing 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 analysis or support) that “the terms `foreign' and `domestic' are two poles on a spectrum.” Ante, at 396, n. 7. It does not grap- ple, however, with the many decisions of this Court discussed above that contradict that premise—and that do so in the precise context of Indian law (in general) and sovereign im- munity (in particular). See supra, at 406–411. 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. III Unable to demonstrate that the statute's terms clearly ab- rogate tribal immunity, respondent and the Court stress that § 101(27) as a whole “exudes comprehensiveness.” Ante, at 388. That is obviously true but not obviously helpful. Really, the express inclusion of so many other types of sover- eigns 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].' ” Cite as: 599 U. S. 382 (2023) 417

Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73, 80 (2002). Nor, for that matter, has this Court ever held that a statute'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 390–392. In a similar vein, the Court won- ders what reason Congress possibly could have had for ex- cluding 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 Bank- ruptcy 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 decision refected a measured political compromise. Or perhaps 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 transmute our clear-statement rule into some sort of magic- words test. Ante, at 394. I do not see how it could. Con- gress 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 418 LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS v. COUGHLIN Gorsuch, J., dissenting

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 388. 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) (internal quotation marks and alterations omitted). Because that is—at best— what the Bankruptcy Code provides, I respectfully dissent.

Reporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

None