OPINION DENYING RENEWED AND SUPPLEMENTED MOTION TO DISMISS OF DEFENDANTS SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS AND KEWADIN CASINOS GAMING AUTHORITY (DKT. 453)

WALTER SHAPERO, Bankruptcy Judge.

INTRODUCTION

Plaintiff, as Litigation Trustee, seeks to avoid transfers made by a debtor corporation to several parties, arguing that the transfers were fraudulent transfers under applicable Michigan law. Two Defendants, an Indian tribe and its political subdivision, moved to dismiss on the basis of sovereign immunity. The motion is denied.

BACKGROUND

The Litigation Trustee ("Plaintiff") seeks to avoid aspects of a restructuring and financing transaction whereby Greektown Holdings, LLC, a Debtor, directly or indirectly transferred money to multiple parties, including the Sault Ste. Marie Tribe of Chippewa Indians and its political subdivision Kewadin Casinos Gaming Authority (together, "the Tribe Defendants").1 Plaintiff brought this fraudulent transfer action under 11 U.S.C. §§ 544 and 550, incorporating Mich. Comp. Laws §§ 566.34 and 566.35. Shortly thereafter, the Tribe Defendants moved to dismiss the adversary proceeding as to themselves, asserting Indian tribal sovereign immunity. Dkt. 8. Upon stipulation by Plaintiff and the Tribe Defendants, the Court entered an order bifurcating these two sovereign immunity issues: (1) Whether Congress abrogated the Tribe Defendants' sovereign immunity by enacting 11 U.S.C. § 106; and (2) whether the Tribe Defendants consensually waived their sovereign immunity. Dkt. 85. This opinion deals solely with the former issue, with the latter issue remaining in abeyance. The Court entertained briefs, held a hearing, and took the matter under advisement.

Plaintiff and the Tribe Defendants then reached a settlement. The District Court withdrew its reference of this matter and entered a settlement order. Other Defendants, who had previously objected to aspects of the District Court's settlement order, appealed it. The Sixth Circuit Court of Appeals agreed with them, to an extent, and remanded to the District Court. A fuller discussion of the procedural history (which is not of particular relevance to this opinion) can be found in that remanding opinion: Papas, et al. v. Buchwald Capital Advisors, LLC, et al., 728 F.3d 567 (6th Cir.2013). Thereafter, Plaintiff and the Tribe Defendants unsuccessfully mediated this matter as part of global settlement discussions. It appearing that those settlement discussions are no longer being presently pursued, the Tribe Defendants renewed and supplemented their motion to dismiss. Dkt. 453. The Court again entertained briefs, held a hearing, and took the matter under advisement.

JURISDICTION

This is a core proceeding under 28 U.S.C. § 157(b)(2)(H). The Court has jurisdiction under 28 U.S.C. §§ 1334(b) and 157, and E.D. Mich. L.B.R. 83.50(a).

MOTION TO DISMISS STANDARD

Fed.R.Bankr.P. 7012 incorporates Fed. R.Civ.P. 12(b)(1) and provides that a party may by motion assert the defense of lack of subject-matter jurisdiction. The Court must assume that the allegations in Plaintiffs complaint are true and Plaintiff bears the burden of proving jurisdiction in order to survive a motion to dismiss. 3D Sys., Inc. v. Envisiontec, Inc., 575 F.Supp.2d 799, 802-03 (E.D.Mich.2008).

DISCUSSION

The Legal Issue and the Standard for Abrogation of Tribal Sovereign Immunity

11 U.S.C. § 106(a) provides: "Notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section with respect to the following: (1) Sections ... 544 ... [and] 550." In turn, "governmental unit" is defined in § 101(27).

These statutes do not specifically mention "Indian tribes," nor does any other provision in the Bankruptcy Code. In re Nat'l Cattle Cong., 247 B.R. 259, 267 (Bankr. N.D.Iowa 2000). The specific legal issue is whether the phrase "or other foreign or domestic government" includes Indian tribes and thus abrogates their sovereign immunity for purposes of the Bankruptcy Code.

The Supreme Court has referred to and described Indian tribes as follows:

Michigan v. Bay Mills Indian Cmty., ___ U.S. ___, 134 S.Ct. 2024, 2030, 188 L.Ed.2d 1071 (2014). Congressional actions abrogating tribal sovereign immunity must be clear, unequivocal, and not to be lightly assumed by a court. Id. at 2031-32. Even if an Indian tribe is subject to a law of general applicability, it is not necessarily subject to suit thereunder unless sovereign immunity is abrogated. Fla. Paraplegic, Ass'n, Inc. v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126, 1130 (11th Cir.1999) (discussing Kiowa Tribe of Okla. v. Mfg. Technologies, Inc., 523 U.S. 751, 755, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998)). "Evidence of congressional intent must be both unequivocal and textual." Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989). It must be said with "perfect confidence" that Congress intended to abrogate sovereign immunity and "imperfect confidence will not suffice." Id. at 231, 109 S.Ct. 2397. Abrogation of tribal sovereign immunity may not be implied. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). As one court artfully stated, "If there were no thumbs on the interpretive scale, the question of intent reasonably could be decided either way and that exemplifies ambiguity. Because there is ambiguity, the thumb that presses down in favor of tribal sovereign immunity tips the balance." Freemanville Water Sys., Inc. v. Poarch Band of Creek Indians, 563 F.3d 1205, 1210 (11th Cir. 2009) (citations omitted).

In essence, and as will be further discussed, the Court takes the Tribe Defendants' argument to be that, in light of the foregoing pronouncements, (a) for a statute to abrogate tribal sovereign immunity, it must specifically use the words "Indian tribes" (or perhaps some synonymous verbiage); and (b) if the statute does not use such verbiage, and irrespective of any other language used, the purported abrogation fails to meet the foregoing pronouncements and is not effective as to Indian tribes.

A. Parsing the Language of § 101(27), Are Indian Tribes "Other Foreign or Domestic Governments"?

One aspect of this definition can be easily eliminated from consideration: "foreign governments." The Supreme Court has found or stated that Indian tribes are unique entities, but has also indicated that they are not "foreign governments" per se. "Although we early rejected the notion that Indian tribes are `foreign states' for jurisdictional purposes under Art. Ill, Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25 (1831), we have also recognized that the tribes remain quasi-sovereign nations which, by government structure, culture, and source of sovereignty are in many ways foreign to the constitutional institutions of the federal and state governments." Santa Clara Pueblo, 436 U.S. at 71, 98 S.Ct. 1670 (citation omitted); see also Bay Mills Indian Cmty., 134 S.Ct. at 2040-41 (2014) (Sotomayor, J., concurring) ("Indian Tribes have never historically been classified as `foreign' governments in federal courts even when they asked to be.... Two centuries of jurisprudence therefore weigh against treating Tribes like foreign visitors in American courts."). The Commerce Clause of the U.S. Constitution distinguishes Indian tribes from "foreign nations," providing: "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]" Art. 1, § 8, cl. 3. This Court is thus satisfied that Indian tribes are not "foreign governments" within the definition of § 101(27).

B. If Indian Tribes are not "Foreign Governments," are they "Governments" in the First Place?

The Tribe Defendants stress that the Supreme Court has gone to extraordinary lengths to avoid calling Indian tribes "governments." The Supreme Court has predominantly relied on the nomenclature "domestic dependent nations." See Bay Mills Indian Cmty., 134 S.Ct. at 2030 (2014). Congress is presumed to be aware of such when enacting legislation.2 The Tribe Defendants rely upon one of two relevant appellate court cases, which opined:

In re Whitaker, 474 B.R. 687, 695 (8th Cir. BAP 2012) (footnote omitted). The other relevant appellate case, relied upon by Plaintiff, opined:

Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055, 1057-59 (9th Cir.2004), cert. denied, 543 U.S. 871, 125 S.Ct. 99, 160 L.Ed.2d 118 (2004).

Plaintiff also directs this Court's attention to a recent concurring opinion that stated "[b]oth States and Tribes are domestic governments ..." Bay Mills Indian Cmty., 134 S.Ct. at 2042 (Sotomayor, J., concurring). The Tribe Defendants argue that such language has little, if any, precedential value and does not relate to Congressional intent at the time it wrote the relevant statutes. While that pronouncement was not crucial or essential to that decision, or dispositive in this case, it does express such a point of view, for whatever it is worth. It does not weigh materially in this Court's analysis or conclusion.

Noting those quoted and conflicting appellate cases, this Court finds Krystal Energy far more persuasive than In re Whittaker on this point. Indian tribes are clearly and unequivocally "governments," despite their uniqueness. This Court could delve into an examination into the nature, function, and purpose of Indian tribes and whether they indeed "govern." Compare Bay Mills Indian Cmty., 134 S.Ct. at 2030 (Indians tribes hold "governmental powers and attributes"), with In re Whitaker, 474 B.R. at 693 ("Granted, Indian tribes can and do provide certain governmental functions for their members. But the several steps needed to justify the holding in these cases is far from an unequivocal expression of Congressional intent to abrogate the tribes' immunity..."). The Court could also compare and contrast a "government" and a "nation" (something not substantially discussed by the parties). But in any event, these inquiries would beg a more basic question: what sort of entities hold sovereign immunity? By the very definition of sovereign immunity, only governmental entities hold it. Black's Law Dictionary (9th ed. 2009) defines "sovereign immunity" as "[a] government's immunity from being sued in its own courts without its consent.... Also termed government immunity; governmental immunity." (emphasis added). See § 106(a) ("... sovereign immunity is abrogated as to a governmental unit ..."). Thus, if an entity holds sovereign immunity, it is perforce a "governmental" entity.3

C. Having Determined that Indian Tribes are Governments, are they "Domestic Governments"?

The reference to "foreign or domestic government" in § 101(27) logically creates dichotomy: either something is domestic, or otherwise it is foreign. Krystal Energy, 357 F.3d at 1057. The dichotomy is a territorial one. See Id. The Supreme Court has long recognized that Indian tribes are territorially domestic, opining:

Cherokee Nation, 5 Pet. at 17. Similarly:

U.S., to Use of Mackey v. Coxe, 59 U.S. 100, 103, 18 How. 100, 15 L.Ed. 299 (1855). The Supreme Court has otherwise described Indian tribes as "domestic" in nature, echoing that the dichotomy is indeed a territorial one. Blatchford v. Native Vill. of Noatak & Circle Vill., 501 U.S. 775, 782, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991)

("Respondents argue that Indian tribes are more like States than foreign sovereigns. That is true in some respects: They are, for example, domestic."); The definitions stated in Black's Law Dictionary support this conclusion, as discussed by In re Mayes, 294 B.R. 145, 158-59 (10th Cir. BAP 2003) (McFeeley, J., dissenting):

(footnotes omitted). Indian tribes fall within this definition.

This Court's conclusion is reinforced by several other factors. First, the adjective "domestic" has been used by the Supreme Court to describe Indian tribes for almost two centuries. It is not relevant that this adjective was used to modify "dependent nation" rather than "government." Second, Indian tribes must logically fall somewhere in the foreign/domestic dichotomy. Because the Court has previously concluded that Indian tribes are not foreign, as a matter of logic, they must perforce be domestic. The Tribe Defendants argue that because Indian tribes are unique, they are "tribal governments," i.e. part of a separate category that transcends the foreign/domestic dichotomy. It cannot be logically said that, because an entity is unique and borrows some characteristics from both categories in a dichotomy, that it falls wholly outside both categories. Further, the dichotomy requires a territorial inquiry, not an inquiry into the nature, purpose, or function of the entity.4 For those reasons, the Court finds that Indian tribes are "domestic governments" within the meaning of § 101(27).

D. If Indian Tribes Do Not Fall Under the Term "Other Domestic Governments, "What Else Does?

This question Further reinforces the Court's conclusion that Indian tribes are "domestic governments." Congress expanded the scope of "governmental unit" by adding the phrase "or other foreign or domestic government." "It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." Kirtsaeng v. John Wiley & Sons, Inc., ___ U.S. ___, 133 S.Ct. 1351, 1379, 185 L.Ed.2d 392 (2013) (quoting TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001)). "The sovereign immunity canon is just that — a canon of construction. It is a tool for interpreting the law, and we have never held that it displaces the other traditional tools of statutory construction." Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 589, 128 S.Ct. 2007, 170 L.Ed.2d 960 (2008), cf. Montana v. Blackfeet Tribe of Indians, All U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985) ("the standard principles of statutory construction do not have their usual force in cases invoking Indian law."). With that in mind, this Court is extremely hesitant to wholly erase the phrase "or other ... domestic government" from the Bankruptcy Code. Congress would not include this phrase if it was a meaningless nullity. Similarly, this Court should not act to transform that phrase into a meaningless nullity. Therefore, if Indian tribes do not comprise or fall under "other ... domestic government," there must be some other domestic government that was not enumerated and that gives meaning to the phrase.

Upon being so questioned at the most recent hearing, counsel for the Tribe Defendants was unable to provide such an example. This presents a serious problem with the Tribe Defendants' position. Other Courts have also faced this question and been unable to provide such an example.

In re Russell, 293 B.R. 34, 41 (Bankr. D.Ariz.2003) (emphasis original) (footnote omitted). Similarly, one thoughtful dissent5 stated:

In re Mayes, 294 B.R. at 159 (McFeeley, J., dissenting) (footnote omitted). The Court concludes that the only rational, non-absurd explanation is that the phrase "other ... domestic government" is comprised exclusively of Indian tribes. To draw an analogy, imagine Congress enacted a statute that stated "red, white, and any other color appearing on the flag of the United States of America." As a matter of logic, that statute would have to be construed to clearly and unequivocally include "blue."

Nor is the Court is not persuaded by the Tribe Defendants' argument based on ejusdem generis, which is defined by Black's Law Dictionary (9th ed. 2009) as "[a] canon of construction holding that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed." See United States v. Mabry, 518 F.3d 442, 447 (6th Cir.2008). The Tribe Defendants argued that "other ... domestic government" must be construed as limited to the types of entities with the same characteristics as those specifically enumerated (such as, for example, states or municipalities). In the Tribe Defendants' view, that would only include entities that are "comparable" to a state or municipality. That argument fails because the Tribe Defendants do not (and indeed cannot) prove that there exist entities that are "comparable" to states and municipalities that are not already encompassed by the enumerated terms "state" and "municipality."6 Ejusdem generis is inapplicable, at least as the Tribe Defendants would employ it. In fact, an argument could be made that ejusdem generis supports a finding that "other ... domestic government" includes Indian tribes. The commonality between the enumerated entities and Indian tribes is that they all hold sovereign immunity and are all governmental entities.

E. It is not Dispositive that, in Other Statutory Schemes, Congress has Explicitly Referred to "Indian Tribes"

The Tribe Defendants argue that, because Congress has, on several other occasions, explicitly used the words "Indian tribe" (or similar language) when abrogating tribal sovereign immunity, that Congress' failure to include such words in § 101(27) of the Bankruptcy Code is indicative that it did not intend to do so here. The Tribe Defendants cite to several examples relative to abrogation of tribal sovereign immunity.7 Some key examples include the following, first:

N. States Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991 F.2d 458, 462 (8th Cir.1993) (discussing the Hazardous Materials Transportation Act). Second:

Osage Tribal Council ex rel. Osage Tribe of Indians v. U.S. Dep't of Labor, 187 F.3d 1174, 1182 (10th Cir.1999) (alteration in original) (discussing the Safe Drinking Water Act). Third:

Blue Legs v. U.S. Bureau of Indian Affairs, 867 F.2d 1094, 1097 (8th Cir.1989) (alterations in original) (footnote omitted) (discussing the Resource Conservation and Recovery Act).

What can be gleaned from these examples is that an explicit reference to "Indian tribes" in a statute is sufficient for Congress to clearly and unequivocally abrogate tribal sovereign immunity. However, just because that is sufficient does not mean it is required. The Court in In re Russell, 293 B.R. at 43 was also presented with an argument similar to that made by the Tribe Defendants and found it to be "a rather weak inductive argument" because, although the use of the phrase "Indian tribe" may be a powerful statement, it is not the only way Congress can abrogate tribal sovereign immunity. Although Congress did not use the most powerful tool at its disposal here (the proverbial "magic words" of "Indian tribe" or some synonymous verbiage), the words it did use, in light of the totality of the foregoing analysis, warrant the conclusion that Congress had the clear, unequivocal, and unambiguous intent to abrogate tribal sovereign immunity.8 In this connection, the Supreme Court recently opined:

F.A.A. v. Cooper, ___ U.S. ___, 132 S.Ct. 1441, 1448, 182 L.Ed.2d 497 (2012) (alteration in original) (Privacy Act provided for recovery of "actual damages" from the United States, but such did not unequivocally waive its sovereign immunity for other damages that are beyond the scope of "actual damages"). A court should not enlarge a statute's waiver of sovereign immunity beyond what a fair reading of the language requires. See Id. "Congress need not use magic words to waive sovereign immunity, but the language it chooses must be unequivocal and unambiguous." Webman v. Fed, Bureau of Prisons, 441 F.3d 1022, 1026 (D.C.Cir.2006) (citation omitted). "The only way Congress could have been clearer would have been to say `this act abrogates state sovereign immunity.' But the Supreme Court has made it quite plain that such magic words are unnecessary." Alaska v. EEOC, 564 F.3d 1062, 1066-67 (9th Cir.2009) (statute that authorized state employees to recover damages payable by their employer was deemed to abrogate state sovereign immunity, despite the statute not mentioning abrogation, sovereign immunity, or the Eleventh Amendment). This Court thus concludes that Congress made its intent unequivocally, perfectly, and sufficiently clear, despite not using the "magic words."

The Court is also not persuaded by the Tribe Defendants' reliance on Florida Paraplegic Ass'n, Inc., v. Miccosukee Tribe of Indians of Florida., in which that Court held that "the absence of any reference to Indian tribes in the former statute stands out as a stark omission of any attempt by Congress to declare tribes subject to private suit for violating the ADA's public accommodation requirements." 166 F.3d at 1132 (footnote omitted). But that act did not contain a provision abrogating the sovereign immunity of all domestic governments. In re Russell, 293 B.R. at 44. The ADA only explicitly abrogated the sovereign immunity of states under the Eleventh Amendment to the U.S. Constitution, which its legislative history confirmed. Fla. Paraplegic Ass'n, 166 F.3d at 1133. Because, in this case, there exists the phrase "other ... domestic governments," which can only be interpreted to mean "Indian tribes," particularly in light of the all-inclusive enumeration in the statute of other domestic governments, Florida Paraplegic is not particularly helpful to the Tribe Defendants.

F. The Court's Conclusion that Congress Abrogated Tribal Sovereign Immunity Satisfies the Applicable Standard as being Perfectly Clear, Unequivocal, and not Implied

The Tribe Defendants argue that the mere fact that this legal question is so disputed is indication that (a) there is no clear or unequivocal Congressional intent to abrogate tribal sovereign immunity; and (b) there is no way to conclude that Congress abrogated tribal sovereign immunity without such being implied. They note that there are two sharply conflicting appellate cases on this exact issue. Compare Krystal Energy, 357 F.3d 1055, with In re Whitaker, 474 B.R. 687. (One might even argue that the very length of this Court's own opinion is itself indicative that any such Congressional intent is less than perfectly clear.)

Certainly, Congressional intent to abrogate tribal sovereign immunity cannot be implied. Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670. In re Russell provides an important discussion on the meaning of the word "imply," particularly as relates to this legal issue.

The first possible meaning is "to impute or impose on equitable or legal grounds." This usage is unique to legal writing, and very common in legal writing, and is therefore is the most likely usage the [Supreme] Court intended. This is the usage when courts imply a contract, a trust, or a promise that was never actually made or even suggested. Perhaps the usage closest to the present context is when courts imply a private right of action in a statute. When they do so, they are not using the term in its ordinary English usage, because the court's holding is express rather than implied, and usually the court is not suggesting that the Congress or legislature consciously intended there to be a private right of action but only indicated it by implication. Instead, the court is imposing it because it is equitable to do so, just as a promise or a contract may be implied when a party acts to its detriment in reliance on another's statement or conduct. That is a particularly apt meaning in this context, because it means the Court is saying that abrogation of sovereign immunity cannot be implied in the same way a right of action might be implied even when the statutory language is silent on the subject. Under that meaning, however, there can be no argument that application of § 106(a) to tribes would be to imply an abrogation of sovereign immunity, because the language of § 106 is quite express. To apply § 106 to tribes would not be "to impute or impose" a legal right or obligation on which the statute is silent but is merely to apply the express words of the statute.

The second possible meaning is "to read into (a document)." This means to infer a meaning that the author probably intended but is not found in the express words of the document. Perhaps, for example, the authors of the Constitution implied a right of privacy even though no words make that intention express. Again, however, it is clear that under this meaning the abrogation of sovereign immunity was not merely implied by Congress, because it is express in § 106. Concluding that §§ 101(27) and 106(a) include Indian tribes is not to conclude the authors implied something without making it express, but merely to apply what is expressly said. So under this meaning as well there is no violation of the Court's proscription against abrogation by implication in concluding that § 106 includes Indian tribes.

293 B.R. at 38-39 (footnotes omitted). Nothing in this Court's opinion is within either of these two definitions of "imply." In the Court's opinion, there is a material difference between (a) determining the scope or extent of an explicitly stated abrogation of sovereign immunity, as is the issue here; and (b) determining whether there was any abrogation in the first place where the statute is slient on the matter. e.g. Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc.. 585 F.3d 917, 920 (6th Cir.2009); Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 357 (2d Cir.2000).

In the Court's opinion, the most important lesson from In re Russell is that implication is distinguishable from deduction.9 Black's Law Dictionary (9th ed. 2009) defines deduction as "[t]he act or process of reasoning from general propositions to a specific application or conclusion." For example, the Bankruptcy Code does not specifically list "Arizona" in its definition of governmental units whose sovereign immunity is abrogated. But that conclusion can be deduced by a simple syllogism: sovereign immunity is abrogated as to states; Arizona is a state; therefore sovereign immunity is abrogated as to Arizona.In re Russell, 293 B.R. at 41. Similarly, it can be said that sovereign immunity is abrogated as to "other ... domestic governments," Indian tribes are "other ... domestic governments" (and indeed they are the only "other ... domestic governments"), therefore sovereign immunity is abrogated as to Indian tribes. That Court further reasoned:

Id. (footnote omitted). This Court disagrees with In re Nat'l Cattle Cong. on the point that abrogation of tribal sovereign immunity can only be inferred from this statute. 247 B.R. at 267.

In sum, although Indian tribes have a "thumb on the interpretive scale" tending to tip the balance in their favor in the event of an ambiguity or lack of clarity, that does not come into play because, in this Court's view, Congress sufficiently, clearly, and unequivocally intended to abrogate their sovereign immunity in the subject statute.

CONCLUSION

For the foregoing reasons, Plaintiff has met its burden and the Tribe Defendants' motion to dismiss is denied. Plaintiff shall present an appropriate order.