Bankruptcy Code

New Scholarship on Tribal Bankruptcy under Chapter 15 (“Foreign Nations”)

Matthew L.M. Fletcher

Blake Quackenbush has published “Cross-Border Insolvency and the Eligibility of Indian Tribes to Use Chapter 15 of the Bankruptcy Code” in the T.M. Cooley Law Review.

Here is the abstract:

Defaulting corporate debtors, sullied by unmanageable debt, often seek relief in federal bankruptcy court under 11 U.S.C. § 101, et seq. of the United States Code (Bankruptcy Code). Yet bankruptcy courts and scholars seem to agree that Indian tribes, like the Mashantucket Pequot Tribal Nation, cannot seek the same protection commonly afforded to individuals, entities, and municipalities under chapters 7 and 11 of the Bankruptcy Code.

Briefing in Eighth Circuit BAP re: Lower Sioux Immunity

Matthew L.M. Fletcher

Here:

Appellant Brief

Lower Sioux Brief

Appellant Reply Brief

New Scholarship on Indian Gaming and Bankruptcy

Matthew L.M. Fletcher

Emir Aly Crowne (né Mohammed), Andrew Black, and S. Alex Constantin have posted Not Out of the (Fox)Woods Yet: Indian Gaming and the Bankruptcy Code on SSRN. It has been published in the UNLV Gaming Law Journal.

Here is the abstract:

Does tribunal sovereignty trump federal bankruptcy law? This is the basic question we explore in this article. We will argue that where a tribal corporate entity voluntarily enters into a business contract with non-tribal investors, it must be made subject not only to the relevant rules and regulations, but also to the terms of the agreements it undertakes. Being commercially participatory entails being commercially responsible. It means paying liabilities where and as they become due in accordance with law and the principles of equity.

Santa Ynez Band of Mission Indians v. Torres — Bankruptcy Code and Tribal Sovereign Immunity

Matthew L.M. Fletcher

This is a case out of the Second District of the California Court of Appeals. The question was whether Congress intended to waive the sovereign immunity of Indian tribes in the US Bankruptcy Code. There appears to be a split of authority on the subject, with the Ninth Circuit [Krystal Energy Co. v. Navajo Nation] saying yes, and the Tenth Circuit [In re Mayes] and an Iowa district court [In re National Cattle Congress] saying no. The Cal. App. followed the Ninth Circuit case. It is unpublished.

Here are the materials:

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