Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin/Opinion of Justice Gorsuch
SUPREME COURT OF THE UNITED STATES
No. 22–227
LAC DU FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS, ET AL., PETITIONERS v. BRIAN W. COUGHLIN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
[June 15, 2023]
Justice Gorsuch, dissenting.
Until today, there was “not one example in all of history where [this] Court ha[d] found that Congress intended to abrogate tribal sovereign immunity without expressly mentioning Indian tribes somewhere in the statute.” In re Greektown Holdings, LLC, 917 F. 3d 451, 460 (CA6 2019) (internal quotation marks omitted). No longer. The Court reads the phrase “other foreign or domestic government,” 11 U. S. C. §101(27), as synonymous with “any and every government,” ante, at 4—all for the purpose of holding that §106(a) of the Bankruptcy Code abrogates tribal sovereign immunity. It is a plausible interpretation. But plausible is not the standard our tribal immunity jurisprudence demands. Before holding that Congress has vitiated tribal immunity, the Legislature must “unequivocally express” its intent 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, everywhere. But it could also mean what it says: every “other foreign … government”; every “other … domestic government.” And properly understood, Tribes are neither of those things. Instead, the Constitution’s text—and two centuries of history and precedent—establish that Tribes enjoy a unique status in our law. Because this reading of the statute is itself (at worst) a plausible one, I would hold that the Bankruptcy Code flunks this Court’s clear-statement rule and reverse.
I
As the Court reaffirms today, “the doctrine of tribal immunity is settled law.” Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751, 756 (1998); see ante, at 3–4. Nor should that fact come as a surprise. From the founding to the present, this Court has recognized the Tribes’ continued existence as “independent sovereigns.” Haaland v. Brackeen, 599 U. S. ___, ___–___ (2023) (Gorsuch, J., concurring) (slip op., at 12–18); see, e.g., United States v. Wheeler, 435 U. S. 313, 322 (1978); Worcester v. Georgia, 6 Pet. 515, 559 (1832) (Marshall, C. J., for the Court).
A “necessary corollary to [that] Indian sovereignty” is immunity from private suit. Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 476 U. S. 877, 890 (1986). It is, after all, “inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton). That understanding, derived from both “common law sovereign immunity” and “law-of-nations sovereign immunity,” is a background principle on which the Constitution itself rests. See Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___, ___–___ (2019) (slip op., at 6–9) (internal quotation marks omitted) (citing authorities). And it applies to Tribes no less than foreign nations, Santa Clara Pueblo v. Martinez, 436 U. S. 49, 58 (1978), a 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 Sovereign Immunity Story, 62 Am. U. L. Rev. 1587, 1640 (2013) (Wood).
While venerable, tribal immunity—like its state and foreign counterparts—is not immutable. The federal government 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. Brackeen, 599 U. S., at ___ (opinion of Gorsuch, J.) (slip op., at 31). 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 conflicts and reprisals, this Court employs an additional interpretive guardrail—“a clear statement requirement designed to ensure that the political branches acted knowingly and intentionally” in divesting sovereigns of their legal entitlements. A. Bellia & B. Clark, The Law of Nations as Constitutional Law, 98 Va. L. Rev. 729, 792–793 (2012). Under this approach, we will not read a statute to abrogate immunity “if any other possible construction remains.” Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804); see also, e.g., Financial Oversight and Management Bd. for P. R. v. Centro De Periodismo Investigativo, Inc., 598 U. S. ___, ___ (2023) (slip op., at 1). That goes for Tribes just as it goes for other sovereigns; it is an “enduring principle of Indian law” that we “will not lightly assume that Congress in fact intends to undermine Indian” sovereignty absent pellucid 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 Congress 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 Enterprises, 532 U. S., at 418 (internal quotation marks omitted). Under that rule, “[a]ny ambiguities in the statutory language are to be construed in favor of immunity.” FAA v. Cooper, 566 U. S. 284, 290 (2012). Keep that hard-to-meet standard in mind. We will return to it as we make our way through the statutory text driving today’s dispute.
II
The Bankruptcy Code stipulates that, “notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section.” §106(a). That language, this Court has previously held, signals a clear intent to abrogate sovereign immunity. See Central Va. Community College v. Katz, 546 U. S. 356, 379 (2006). But as to which sovereigns? The answer to that question lies elsewhere in the Bankruptcy Code. “The term ‘governmental unit,’ ” it says, “means United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency, or 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 five matter: “other foreign or domestic government.” No one argues any of the other clauses could potentially refer to Tribes. We can further winnow down the options from there. No one thinks Tribes qualify as “foreign … government[s].” That leaves only two possibilities. Tribes could qualify as “ ‘domestic governments’ ”—respondent’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 4. Neither possibility is the slam dunk our familiar clear-statement rule requires. Consider each in turn.
A
Start with the “domestic government” possibility. At the time Congress adopted the provisions of the Bankruptcy Code at issue before us, the word “domestic” carried only two potentially relevant meanings. It could mean spatially domestic—i.e., within the territorial confines of the United States. Or it could mean politically domestic—i.e., a subpart of the United States. Contemporary definitions support 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 particular country as apart from other countries”); American Heritage Dictionary 416 (2d College ed. 1982) (“[o]f or pertaining to a country’s internal affairs”).
If we were to read the term only in its spatial sense, as the First Circuit did below and respondent urges us to do, it makes some sense to speak of Tribes as “domestic.” See In re Coughlin, 33 F. 4th 600, 606 (2022). These days, tribal jurisdiction usually falls within the United States’ 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 always. Even to this day, all three branches of government struggle to address the status of Tribes that straddle our Nation’s borders. See, e.g., 8 U. S. C. §1359 (setting special immigration rules for “American Indians born in Canada”); 22 CFR §42.1(f) (2022) (similar); Matter of Yellowquill, 16 I. & N. Dec. 576, 577–578 (BIA 1978) (interpreting other provisions to not apply to Canada-born “American” Indians); Akins v. Saxbe, 380 F. Supp. 1210, 1218–1222 (Me. 1974) (similar). Evidently, our neighbor to the north has encountered similar difficulties. See R. v. Desautel, 2021 SCC 17 (analyzing traditional cross-border hunting rights).
Focusing only on the spatial meaning of “domestic,” however, would miss an obvious point. When it comes to the status of governments, this Court has long recognized that geography takes a backseat. Whether a government qualifies as “domestic” instead usually depends on “the political relation in which one government or country stands to another”; 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 relationship 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 understood, Indian Tribes “occupy a unique status” that is neither politically foreign nor domestic. National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 851 (1985). Significant evidence supports this understanding. Start with the text of the Constitution. Its terms appear to “place Indian [T]ribes in an intermediate category between foreign and domestic states.” Z. Price, Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction, 113 Colum. L. Rev. 657, 670 (2013) (Price). At least two provisions 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 exemption from the apportionment formula of all “Indians not taxed.” Art. I, §2, cl. 3; Amdt. 14, §2. That choice recognizes that Tribes are not fully “domestic” to the United States, and instead stand “separate from the polity.” Price 670.
These provisions, too, reflected a widely shared understanding about the sovereign status of Tribes at the founding. 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) chiefly managed tribal relations by way of treaty. Entering into those treaties “admit[ted]” that the Tribes “rank among those powers who are capable of making treaties.” Worcester, 6 Pet., at 559. Governments do not normally deal with politically “domestic” authorities in that manner. See, e.g., Ex parte Crow Dog, 109 U. S. 556, 572 (1883) (linking Tribes’ “ ‘capacity to make treaties’ ” with their unique “ ‘semi-independent’ ” status, allowing them to control “ ‘their domestic 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. Georgia, “three distinct views of tribal sovereignty emerged” on the question whether, “for purposes of Article III,” the Cherokee Nation was a “foreign nation.” R. Tsosie, Tribalism, Constitutionalism, and Cultural Pluralism: Where Do Indigenous Peoples Fit Within Civil Society?, 5 U. Pa. J. Const. L. 357, 360–361 (2003). In the lead opinion for the Court, Chief Justice Marshall emphasized that “[t]he condition of the Indians in relation to the United States is perhaps unlike that of any other two people in 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 (emphasis added). Instead, he suggested, “[t]hey may, more correctly, perhaps, be denominated domestic dependent nations.” Ibid. (emphasis added). But notably, he did not describe the Tribes as “domestic” for all purposes. To the contrary, he deliberately chose the term nations, stressing also that “[i]n the general, nations not owing a common allegiance are foreign to each other.” Id., at 16. In that way, he said, “the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else.” Ibid. Read in context, the term “domestic dependent nations” is really a term of art meant to capture Tribes’ “hybrid position” 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 Cherokee had a chiefly “foreign character,” all things considered. Id., at 55. All told, this Court split sharply as to the best way to characterize the legal status of Tribes in relation to the United States. But if there is one thing all Members of the Court could have agreed on, perhaps it would be this: 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 need not abide by the Bill of Rights or the Fourteenth Amendment. See Oliphant v. Suquamish Tribe, 435 U. S. 191, 194, n. 3 (1978) (citing Talton v. Mayes, 163 U. S. 376 (1896)). Instead, they are governed by unique regimes of civil and criminal jurisdiction involving overlapping “federal, tribal, and state authorities” unlike those employed anywhere else. Oklahoma v. Castro-Huerta, 597 U. S. ___, ___, and n. 3 (2022) (Gorsuch, J., dissenting) (slip op., at 15, and n. 3). And their unique character makes their brand of sovereign immunity “not congruent” with the immunity other sovereigns enjoy. Three Affiliated 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. Marshall, Between the Foreign and the Domestic: The Doctrine of Territorial Incorporation, Invented and Reinvented 30, n. 3, in Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (2001) (noting that the Court has “unanimously and expressly adopted” that view). No one could accuse me of having fondness for the Insular Cases. See United States v. Vaello Madero, 596 U. S. ___, ___ (2022) (Gorsuch, J., concurring) (slip op., at 1). But their existence is fatal for respondent’s theory. After all, the Insular Territories are a close comparator to Tribes and many have considered “both [T]ribes and [T]erritories [to] share the same status as ‘ “foreign to the United States, in a domestic sense.” ’ ” H. Babock, A Possible Solution to the Problem of Diminishing Tribal Sovereignty, 90 N. D. L. Rev. 13, 57 (2014). Tellingly, too, Congress expressly abrogated any immunity 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 flatly inconsistent with the “domestic government” characterization. Taking away those examples leaves respondent with thin gruel. He directs us to United States v. Coxe, 18 How. 100, 103 (1856). But that case observed only that “Cherokee territory” counts as “domestic territory.” Ibid. (emphases added). The decision thus plainly used the term “domestic” only in its spatial sense. The same goes for Blatchford v. Native Village of Noatak, 501 U. S. 775 (1991). There, this Court recognized that Tribes are only “in some respects” “more like States than foreign sovereigns.” Id., at 782. Read with this context in mind, its statement that “[t]hey are, for example, domestic,” referred only to their spatial location. Ibid. Confirming this point, the rest of the paragraph contrasted the Tribes’ physical “domesticity” with features of their political relationship with the United States. Ibid.
More fundamentally, even granting respondent these examples would not do him any good. Just think of the balancing 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 realistically hope for is that we declare §101(27) a jump ball. And under our clear-statement rule, a jump ball is as good as a possession arrow favoring the party opposing the abrogation 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 possesses the power to assert such immunity.” Ante, at 4. 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 first move. Respondent would have us read “foreign or domestic” as a unitary clause expressing a single, shared idea. This is what linguists might call a hendiadys—“two terms separated by a conjunction [that] work together as a single complex expression.” S. Bray, “Necessary and Proper” and “Cruel and Unusual”: Hendiadys 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 … government[s]” or as “domestic government[s].” And because the answer is “no” on both scores (for the reasons already laid out above) the language flunks the clear-statement rule.
The second move has issues too. The case for treating “foreign or domestic government” as synonymous with “any government anywhere” rests on the premise that the terms are “two extremes,” so that—by invoking both—Congress meant to cover every part of an all-inclusive spectrum. Ante, at 5. The Court analogizes to the phrase “near and far,” which it argues sometimes means “all over the map.” Ante, at 5–6. But the premise here is faulty and the analogy inapt. “Near” and “far” may well be “two extremes”—one would not speak of a location being both near and far at the same time, for example. When it comes to sovereigns, 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 argument, he retreated from his briefing and relied instead on a provision of the Bankruptcy Code stating that, for purposes 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 everyone can agree at least that Tribes bear some qualities of both foreign and domestic governments.
The provision respondent cites simply does not do what he seems to think it does. In common usage, the term “or” can carry two meanings. The first is exclusive. It requires full satisfaction of one—and exactly one—listed condition. The second is inclusive. It requires full satisfaction of at least one listed condition. All §102(5) does is favor the latter meaning for purposes of the Bankruptcy Code. Sound complicated? Just look at an example. Suppose you tell your child that he can get a pet so long as it is “small or a dog.” The child can choose a small animal (like a hamster) or a large dog (like a mastiff). But can the child also choose a small dog? If the “or” is inclusive (as respondent argues it is here), the answer is “yes.” If it is exclusive, the answer is “no.” Critically, however, neither reading covers a medium-sized aardvark. Such an animal may be somewhat small and somewhat doglike, but two near misses do not add up to a hit. This is a simple point but an important one. Regardless of whether “or” is used inclusively or exclusively, one of the input conditions must be satisfied.
With this point in mind, respondent’s reading collapses. To see why, consider another example. Suppose you are a houseguest, and your host invites you to “help yourself to the chocolate or vanilla ice cream in the freezer.” Upon opening the freezer, you find three tubs—vanilla, chocolate, and Neapolitan. For argument’s sake, too, let’s say the last tub also has a sticky note: “Do not eat without clear permission.” Which ice cream can you take? If the host meant “or” exclusively, you may take either chocolate or vanilla, not both. If the host meant it inclusively, you may scoop some of each. In neither event, however, would you have permission to take the Neapolitan ice cream—especially given the cautionary note. As a unique composite, it does not clearly satisfy either of the necessary conditions. So too here. Tribes may have some features of both domestic and foreign governments, but they do not clearly qualify as 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-fish, half-fowl governmental entities like authorities or commissions that are created through interstate compacts” (“ ‘other … domestic government[s]’ ”) and “the joint products of international agreements” (“ ‘other foreign … government[s]’ ”). 33 F. 4th, at 615. Without the catchall, entities of these sorts could potentially fall through the cracks. Tribes, by contrast, are among the most significant entities wielding sovereign immunity. They are a unique form of government—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 13. The answer, of course, is that Congress expressly listed Territories; it did not do the same for Tribes. Nor do I see how Congress’s choice to include Territories supports the Court’s suggestion that the term “other foreign or domestic government” clearly covers all governments. To the 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 domestic government” really does cover all governments—adopting a kind of belt-and-suspenders approach—isn’t it odd that Congress left one of the most notable types of sovereigns (a key part of its “belt”) at home?
Below the line, the Court simply asserts (without analysis or support) that “the terms ‘foreign’ and ‘domestic’ are two poles on a spectrum.” Ante, at 12–13, n. 7. It does not grapple, however, with the many decisions of this Court discussed above that contradict that premise—and that do so in the precise context of Indian law (in general) and sovereign immunity (in particular). See supra, at 6–11. Nor does it grapple with the reality that, even if the terms were two poles on a spectrum, many Justices of this Court have suggested 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 abrogate tribal immunity, respondent and the Court stress that §101(27) as a whole “exudes comprehensiveness.” Ante, at 5. That is obviously true but not obviously helpful. Really, the express inclusion of so many other types of sovereigns in the Bankruptcy Code’s abrogation provision only deepens the mystery why Tribes are nowhere mentioned. Normally, after all, when Congress includes so many items within “ ‘[an] associated group,’ ” we assume the omission of another means that it has been deliberately “ ‘exclude[d].’ ” Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73, 80 (2002). Nor, for that matter, has this Court ever held that a 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 intended to “sweep broadly,” and that petitioners’ view of the statute could “upen[d] the policy choices that the Code embodies.” Ante, at 6–8. In a similar vein, the Court wonders what reason Congress possibly could have had for excluding Tribes from its abrogation provision. Ibid. These are fair questions and concerns. Some of them I share. But they, too, have no place in a case like this one. For purposes of satisfying a clear-statement rule, attempts to “construe” §106 “in light of the policies underlying the Bankruptcy Code are unavailing.” Hoffman, 492 U. S., at 104 (plurality opinion). Perhaps Members of Congress had good reasons for failing to include Tribes in §101(27). Perhaps their decision reflected 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 10. I do not see how it could. Congress could identify Tribes in any number of unmistakable ways—“Indians,” “Native Americans,” “Indigenous Peoples,” or even (as we have seen) “domestic dependent nations.” 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 description—for instance, “any other government that operates, in whole or in part, within the territorial bounds of the United States.” See 33 F. 4th, at 622 (Barron, C. J., dissenting). Alternatively still, Congress could abrogate all sovereign immunity through some unequivocal statement to that effect—using, for example, the Court’s own formulation, “any and every government.” Ante, at 4. The only thing Congress cannot do is use “oblique or elliptical language” to “supply a clear statement.” West Virginia v. EPA, 597 U. S. ___, ___ (2022) (Gorsuch, J., concurring) (slip op., at 13) (internal quotation marks and alterations omitted). Because that is—at best—what the Bankruptcy Code provides, I respectfully dissent.