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MortgagePoint » Your Trusted Source for Mortgage Banking and Servicing News 34 April 2025 F E A T U R E S T O R Y tribe and Indian tribes are sovereign nations with a 'direct relationship with the federal government'" 9 and that Coughlin's argument ignored "the special place that Indian tribes occupy in our jurisprudence. Any consideration of the statutory waiver of tribal immunity starts with the 'baseline position [that the Supreme Court has] often held is tribal immunity.'" 10 Thus, Judge Bailey acknowl- edged that "[a]mbiguities in federal law [are] construed generously in order to comport with ... traditional notions of sovereignty and with the federal policy of encouraging tribal independence." 11 As a result, Judge Bailey granted the motions to dismiss. Coughlin appealed. In 2020, the First Circuit reversed Judge Bailey's dismissal order, thereby aligning itself with the Ninth Circuit in finding that the language in the Bankruptcy Code was sufficient to find that Congress had "clearly" intended to abrogate Tribal sovereign immunity. 12 The First Circuit reached its holding notwithstanding the lengthy detailed his- torical analysis of precedent provided by Chief Judge Barron in his dissent. 13 Justice Barron analyzed not only the precedent, but also the legislative language clearly identifying those decision in which cer- tain legislative provisions were not subject to the sovereign immunity of tribes. 14 The fiery debate between the majority and the dissent 15 is uncharacteristic of the First Circuit and illustrates the division of thought within the circuit, and the coun- try as a whole, over these issues. In June 2023, the United States Supreme Court resolved the First Cir- cuit's division, which permeated circuit courts across the nation, when the Court affirmed the decision in Coughlin II opining, "[O]ur analysis of the question whether the Code abrogates the sovereign immunity of federally recognized tribes is remarkably straightforward. The Code unequivocally abrogates the sovereign immunity of all governments, categor- ically. Tribes are indisputably govern- ments. Therefore, § 106(a) unmistakably abrogates their sovereign immunity too." 16 The Court specifically held that Section 106(a) of the Bankruptcy Code "unequivo- cally abrogates the sovereign immunity of any and every government that possesses the power to assert such immunity," including federally recognized Indian tribes, for the purposes of myriad sections of the Bankruptcy Code. 17 The sharp contrast in opinions on the issue of tribal sovereignty is reflected throughout the Supreme Court's opinion in Lac, in a dialogue that is woven through the footnotes and the text as the arguments are discussed and criticized. What is even more significant, however, is how this opinion has been used across the circuit courts over the past nine months to further erode the historical principles of sovereign immu- nity, as well as the support for a myriad of other arguments. The erosion of sovereign immunity all too often happens in ways that are far less publicized but is part of the daily fabric of life as tribes across the United States struggle to govern themselves and bring prosperity and self-sufficiency to their people. One example of this is illustrated in Eagle Bear. In Eagle Bear, U.S. District Court Judge Brian Morris took great care to explain the history of not only the for- mation of Indian trust lands but also the creation of the Bureau of Indian Affairs (BIA) to oversee those lands and con- tracts relating thereto, which included the lease at issue between the Black Feet Tribe and non-tribal member William Brooke who had a well-documented his- tory of severe delinquency and default that lasted over a decade. 18 Judge Morris explained that the "regulatory structures that insert the BIA into nearly every fac- et of federally recognized Indian tribes' existence, however, too often hobble tribal self-governance and self-determi- nation. Flawed regulations and inept federal administration trammel tribal interests and disserve the federal trust responsibility." 19 As a practical matter, this means: The Blackfeet Nation stands as the lessor, as identified in the campground lease document (Doc. 29-1 at 1), yet it does not administer, monitor, or enforce its lease. 20 The Blackfeet Nation also possesses no statutory or regulatory obligation to compel the BIA to act against a lessee who repeatedly violates the terms of a lease agreement. The BIA possesses the sole authority to admin- ister and enforce the lease, including by collecting rent and ensuring that less ees comply with lease terms. 21 The Blackfeet Nation also bears no statutory or regulatory obligation to compel the BIA to take enforcement action against a delinquent lessee. The Blackfeet Nation depends upon the BIA to perform these duties. 22 In resolving the controversy, the court determined that the lease with Eagle Bear was terminated in 2008. 23 Recognizing that this determination was not likely to satisfy either the Tribe or Eagle Bear, let alone the lender who held a mortgage of over $500,000.00 on the campground, the court acknowledged that it cannot restore Eagle Bear's nearly a decade of investment, and it cannot compensate the Blackfeet Nation for the erroneous deprivation of nearly a decade's control over its own land. The Court can offer its assessment, however, of the gross failings of the Parties to this case. The Blackfeet Nation unmistakably stands as no idle spectator in this case. Regulations may limit the Blackfeet Nation's role in leasing The erosion of sovereign immunity all too often happens in ways that are far less publicized but is part of the daily fabric of life as tribes across the United States struggle to govern themselves and bring prosperity and self- sufficiency to their people.