under section one hundred twenty seven it includes a foreign or domestic government which is to say and the government of all indian tribes or playing the governments within the ordinary meaning of the term as the supreme court has called them on many occasions that is why they get so often immunity in the first place so tribes clearly fall within the broad language the statute abrogates immunity for all governments whether their farm or their domestic and that's what the ninth circuit concluded in the crystal energy case the only other circuit decision to reach this question well i thought the seventh circuit ruled the contrary isn't that correct the seventh circuit was dealing with a different statute your honor in the miers case and it expressly said that it did not need to weigh in on the present question it  that and it has a different language in it in particular the fact authorize is a cause of action against a broad range of entities some of which are sovereign and some of which are not now it doesn't include in that long list the phrase any government cause of action against that large group does not clearly abrogate sovereign immunity of the sovereign entity that might happen to be included in that group was it was at the rationale seven circuits decision i mean it the seventh circuit said a lot of things your honor and it did indicate that it tended to so there's no dispute that congress has the power to abrogate tribal unity if it chooses to do so and expresses its intent clearly and courts determine whether congress expressed a clear intent to abrogate immunity by applying the traditional tools  construction and the foremost tool of statutory construction is of course the language of the statute written its entire context and we think congress is intent here is clear from one of six in one zero one twenty seven read in the context of the bankruptcy code as a whole it is entirely clear from section one of six a that there is no immunity for anything that qualifies as a government unit and it is clear from section one hundred twenty seven that governmental unity includes not only federal state local governments foreign states in all the agencies and instrumentalities you might expect but also it includes the phrase or other foreign or domestic government ok just you know just arguing that it's clear and therefore it's clear on its own is  conclusionary to me the other side says yeah it's clear but it's clear the other way so i think we've got to get beyond the argument that it's obviously clear that i think you've got to get past  that i will i was sort of the do that your honor i mean i would begin with the ordinary language meaning ordinary meaning of the term government which is an organization that exercises political authority on behalf of its members the tribe does that i would also point to a number of cases in which the term government has been used to just to refer to indian tribes specifically that includes the bay mills case the recent bindles case would refer to sovereign immunity itself as one of the tribes governmental attributes so the tribe can assert immunity because in only because it has governmental attributes that is to say it is a government there's the here were tried cases which said i will quote the doctrine of tribal immunity from suit might have been thought necessary to protect  governments there is the santa clara public case in which the supreme court said the troubling unity helps protect quote a tribal governments ability to maintain authority there is the fidelity and guarantee case that's one of their authorities which describe refers to quote indian nations with their unusual governmental organization and peculiar problems and there's the turner case which is the genesis of modern tribal immunity at the supreme court explained in here what tribe and that nation state of the  turner case excuse me said that the creek nation had the same unity as quote other governments we need municipal as well as state so i think that's a sphere that's fishing to establish that the ordinary meaning of the term government what encompass an indian tribe i will point out as well that it's in the record the tribes own constitution refers to it as a government or as having governmental attributes on several occasions is the issue of whether the references to governments the congress was that you don't you think well that they certainly could have done that your honor but the question is whether they had to in order to make themselves clear and our view is that if the language of the statute is clear and it has a clear application t contrary to what you would you're arguing that is they are going to on the other side your honor and i think it reduces to the argument that congress can never clearly refer to indian tribes except by using the specific words indian tribes and that is what i would characterize as a as an argument that congress has to use a particular form of words to make the are biggish unclear and that was rejected by the supreme court as it applied to federal sovereign immunity and cooper and if i think that justice scalia's concurrence in the dome of the case is also informative rejecting the same market as it applied to states he provided the fifth vote but he wrote for the majority and dumb of a case and have anything to do with it is not your honor but the standard is the same as it applies to federal and state and tribal immunity  in the santa clara clara public case i believe that is where the supreme court adopted the requirement of an unequivocal expression of intent to abrogate it took that requirement from cases involving federal so immunity such as united states versus testing so i think there are there are the same line of cases and although there are certainly some differences the general approach to statutory construction is clear and it runs through all the relevant supreme court authority do you  concede that indian tribes historically have been treated differently than other units of government that there may have been given maybe special protection and special deference or special consideration i see that running through the cases i mean i think at that level of generality your honor i would certainly agree with the statement but the question whether you would apply a different a can of construction i would i would not agree to in the context of immunity i think it's the same rule for the across the cases and i would also point to the same language in the mills recently decided where the court said that the difference between tribal sovereign immunity and federal or state sovereign immunity is that congress can take it away that's the primary difference between the two otherwise there sovereigns are treated as sovereigns for purposes of immunity issues and so that i think supports our travels over express it takes its immunity away everywhere that the phrase governmental unit applies and then governmental unit is expressed because it includes the phrase for other foreign or domestic governments which there's n i mean there is dispute but i don't think there's real dispute that that for the ordinary meaning of that phrase would cover indian tribes and so that's express it's it is it is brought but it is express is there any legislative history in support of your position include an indian tribe i don't know how one could argue that it doesn't but the rub here for me is we have other places where congress have stated in other statutes when it specifically wanted to abrogate tribal sovereign immunity and i'm trying to stick with the appropriate construction if you argue and yet what do i do with those other situations where congress seems to be saying should be surprised congress is making it difficult for us i suppose seems to be saying that with tribal immunity you have to or affecting tribe you have to do or say something more and we can't rely on legislative history we have to rely on the statute what it says you see black they say why help me out here on this this other stuff that i'm trying to reconcile so i think your honor that you look at it you say by me what one point which i would make generally is congress can achieve the same things in different statutes using different words if it wants to do it justice pryor we have an opinion one when he was a judge in the first circuit wrote that we have and i cite in our reply brief but more broadly i think you would look at what congress was trying to do in one hundred twenty withdraw the statement your honor what congress did in one hundred twenty seven is to sweep in every type of government of whatever caught and it had a reason to do that the bankruptcy code that it does not have in other types of statutes because one of the core policies underlying the federal bankruptcy laws uniformity they wanted to make sure that every government in the world was treated the same way even foreign foreign governments which is unusual because usually you would if you would you would think that to look at issues of foreign sovereign immunity would look at the foreign so immunity that totally separate statute which is said to be comprehensive in many cases about foreign sovereign immunity but no not the bankruptcy code they said every government domestic or foreign every government in the world and so if you think the tribes are governments and i think you should agree immune from suit they're also a domestic government right your honor no then explain i'm sorry yes or no and then explain it all it depends on the context in which you are asking that question they have never been tribal governments by the supreme court but not domestic governments and the issue is in this case the waiver the can the congressional waiver including the tribes consentual waiver must be clear express an ambiguous and cannot be implied specifically with respect to abrogation congressional abrogation it cannot be implied it must be unequivocal  expressed and it must be done so in unmistakably clear language in the text of the statute itself and counsel is correct we cannot rely upon the legislative history in fact according to the supreme court in the case you will most determined with perfect confidence perfect confidence that congress in one nine hundred seventy eight when it passed this law intended to include indian tribes in the term governmental address opposing arguments comment at the end that congress is intent was clear we're dealing with a bankruptcy code a code intended to apply to everyone everywhere what other governmental unit however you want to describe it is exclu other than tribes indian tribes is there any other one you can name me that would be excluded i don't know if i couldn't name a governmental you don't it's those excluded from the purview or the coverage of the bankruptcy code but the supreme court has made clear that the fact that a statute applies generally to a party or an entity including indian tribes does not mean that they never for him have given up their tribal sovereign immunity and in and if you if you are honors if you look at if you look at the the history and what congress would have understood about indian tribes in one thousand seven hundred because the core of their argument is that congress when it passed this law in one nine hundred seventy eight would have understood indian tribes to be a domestic government and if you look at the actual president and what congress had done at around the time of what the supreme court have done at around that time it is not clear that that's the case in fact it's highly doubtful and why do i say that well in nineteen seventy three congress gave the seventy four congress passed the safe drinking water  which they purported to abrogate tribal sovereign immunity how did they do that they defined a person who could bring a whistleblower claim to include municipality and what did they define municipality to include includes the definition specifically an indian tribe and therefore the tenth circuit in the osogd case which we cite was able to conclude that if you look at the definitional section of the statute it's specifically include indian tribes in the definition the same is true two years before the back to code was acted in one nine hundred seventy six when congress passed the resource can so can conjure vision in recovery act their citizens are permitted to bring compliance suits against persons persons are defined to include municipalities municipalities are defined to include an indian tribe or an authorised tribal organisation and in the blue lakes case the eighth circuit was able to conclude therefore the congress had clearly abrogated trival sovereign immunity in the bay mills case which originated from this court the supreme court in a footnote footnote eleven gave an example of where congress has abrogated tribal sovereign immunity and they cited to the arizona water settlements act and in that case sovereign immunity was clearly abrogated in the statute as to the united states and the community cavil to see the community was defined to specifically include an indian tribe the healer river indian tribe unlike those statues there is no mention no reference to indian tribes or indians in the back to code is it your position that crystal energy is simply wrong or can you distinguish it it is it is it is our position your honor that is simply wrong it's not just our position it's the  whitaker case in the legion of cases that have come after it i can tell you why we believe it's wrong if the of of would help but yes to short answer is we believe it is incorrect we decided only just give you one specific example which i think is so important and actually that word important is important crystal energy relied on two cases the chemical case a two thousand supreme court decision and the osogd case the one i just mentioned  and what they said is in those two cases congress abrogated indian tribal sovereign immunity in both of those cases the statute specifically referred to indian tribes how did the crystal energy co get around that they said we think that's an important we think it's an important that in the two cases they rely upon this statute specifically refer to indian tribes so your position is if there's general language whether it's municipalities or any governmental unit there will be no tribal immunity unless somewhere i can find the word tribal indian tribes or something like that is that your position yes or no it that is my position but i would say to your honor the issue really is has congress clearly unmistakably unequivocally in the expressed language made its intent clear yes if they use the word indian  tribes that would be clear i welcome might they do it well they might use the term tribal governments that perhaps ok but but your honor in one thousand nine hundred seventy eight six months before that act was passed the supreme court had an opportunity to address and describe what indian tribes are and what they are not and that is in the santa clara case six months before congress passes the bankruptcy act and in fact according to supreme court  can presume that they were aware of that case and what the santa clara political ok said about what indian tribes are they said indian tribes are distinct independent political communities retaining their original natural rights in matters of local self government along although no longer possessed of the full attributes of sovereignty they remain a separate people with the power of regulating their internal and social relations and i think this is the important part of the  by government structure or culture and source of sovereignty are in many ways foreign foreign to the constitutional institutions of the federal and state governments so what they said six months before congress pass you have to look at whether or not we can say you can say with perfect confidence that congress intended to abrogate tribal sovereignty on something this is an issue law but it's their claim i mean that the tribe has sovereign immunity absent a clear expression by congress in the statute is there any sort of burden of proof on this legal question since they want to abrogate the tribal do you win or do we i mean is there any burden of proof here there is the burden of proof that that the party that is bringing the claim has the burden of establishing subject matter jurisdiction and at least with respect to the sixth circuit the question of whether or not the tribe enjoys tribe case and i'm quoting the standard principles of statutory construction do not have their usual force in cases involving indian law but they went on to say is that a statute of construction that doesn't apply in indian law cases is that statute or to be construed liberally in favor of the indians with ambiguous provisions interpreted to their benefit your honor we've cited a number of cases that have rejected the theory or the rejected the holding in crystal energy i do think the seventh circuit case is persuasive now it is correct that it did not involve one of the six it involved i think a statute that clear and for consensual tribal waiver it must be expressed we believe this case the issue on consensual way or by the tribe is controlled by this court's decision in the methods biofuels case where the court said that a tribe can choose to express lea wave its sovereign immunity one of two ways it can do so either in its charter or by an agreement it's undisputed in this case that neither applies in this case there is no agreement as there was in the memphis biofuels case where a tribal of fishel signed an agreement that had language that specifically waive the tribe sovereign immunity in this course said yes but the tribe charter controls the tribe to tribe or in that case required that essentially tribal sovereign immunity be done pursuant to a duly adopted board resolution there's something that seems a bit unfair to me that the tribe can consent to bankruptcy court proceedings then through its agent thing they you know no i want out i don't really want the bankruptcy court to help at all then there's something that is inconsistent about that you get the benefit none of the risk i think john respect i don't know if that's a just a generic question or as it applies to this case because in this case this case that i don't think that's factually what happened but i would submit to you that the courts are legion of the supreme court has made it clear if an indian tribe files a suit goes into federal court which it did in the u s versus u s effigy case which it did in the oklahoma ban hundred one went into federal court and filed a suit the court said that consents to jurisdiction to determine that claim but it does not open them up to a counterclaim even a compulsory counterclaim across claim or any of direct action i would submit to you that the supreme court in this court has reflected on some of the apparent in unfairness of when tribal sovereign immunity can benefit tribes that's in the bay mills case that's in the memphis biofuels case it's in the district court's opinion but it is for congress to address those issues not the court and in this case there really isn't any type simply participated limited really in the bankruptcy by filing prove the claims and by at all steps of the way reflecting indicating to the court that they were not waiving their arguments and in court fact in the plan of confirmation that to court made clear that the tribe was not waiving its sovereign immunity they did not open themselves up to a suit for this effort to reporting for fraudulent transfers in they by no you your honors judge griffin i'd like to briefly address your point about the burden of proof i think the way to look at this case is that the question is whether the statute is clear if it is clear that congress intended to abrogate then we prevail if it is in big us then they prevail and it's like reading any other statute and i think if you look at the statutory analysis of the supreme court didn't they mills it looks like any other statute in which such a context in which there is a clear statement rule that's that is the analysis before the court and i think that's a decision the court has to make your opponents like the montana case think that standard principles of statutory construction do not apply when it comes to indian tribes and i think that the clear statement ruling body is that the bennett the benefit that is given to  indian tribes in this context i don't think that montana blackfeet said or that there's any other case that said not only do you apply the clear statement rule but you then put it in a dish will form on their scale implying the clear is to go beyond that there's just one question is  statute clear i want to go briefly back to send a clear problem which counsel for the tribe quoted from in trying to tell your honour's what congress would have had on him on their mind when they enact the bankruptcy code nine hundred seventy eight in the phrase that he quoted it referred to tribes having a governmental structure if congress had gone and looked at that case to determine whether a tribe was incompetent in the term government and they had read the brief phrase that he picked out as most favorable to his position they would have seen the supreme court using the fridge the word government to refer to indian tribes i'd like to address briefly or refer the court briefly to the parts of a briefer we talk about the problems that their construction would create this is reinforcement the plain language it wouldn't be enough on its own but the fact that treating the tribe is not being a governmental unit would mean they could not take advantage of the special rights and privileges that apply to governmental units which was a very important point for the ninth circuit in the crystal energy case i'd also like to point out the crystal we think that memphis biofuels is distinguishable because it did not address litigation conduct whatsoever we cite the briefs not only depend in what the briefs in that case in our brief and show that it did not address the question presented here and i think that as the case comes to this court with the unusual circumstance that the facts that support our alter ego contentions were essentially conceded for purposes of this motion it is very much as if the tribe would come directly to the bankruptcy court and asked for bankruptcy relief and i think it's clear that having done so it would have opened itself up to the type of action at issue here is within core bankruptcy jurisdiction argument that congress goes where crystal energy decision  decision i thought it was two thousand and six i'm not sure but the seven circuits two thousand and sixteen sixteen ok and the human might know it so i say that several district courts and bankruptcy panels have filed the seventh circuit i've got just a series  of authority that have gone the seven circuits way which appears to me that it's probably the majority view as opposed to crystal crystal energy case which i think if you add them all up it's probably the minority view so if we're actually looking for congress not acting in ratifying decisions of the courts is of the seven circuits position the predominant if you will the amendments first i don't think that seven circuit directly weighed in on this issue your honor i will you it's a different statute but the way they interpret the statute is not applying to indian tribes sovereign immunity is the important element here and they i think the statute there as your adversary argues actually broader to abrogate immunity as to any government without qualification at all but ok ok my question is is the seven circuit position the majority or is crystal river majority i we've you know we've cited we said we did our best to collect the significant decisions on this point in one hour on how to how do they have how do they add up i think it