Page:Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.pdf/32

Rh Neither the term “foreign government” nor the term “domestic 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 independent nation.” 11 How., at 374 (emphasis added); see Wood 1640 (describing Parks as “the first case of record involving tribal immunity”). That language not only weighs against treating Tribes as domestic governments. It does so in precisely the context at issue here—sovereign immunity. 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) (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 Maintenance, 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 reality of this Court’s Indian-law jurisprudence, which in practice has consistently treated Tribes as a “constitutional hybrid, resembling [S]tates in certain respects and foreign nations in others.” Price 670–671; see generally G. Ablavsky, 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