Nos , UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. IN RE: GREEKTOWN HOLDINGS, LLC Debtor,

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1 Case: Document: 23 Filed: 05/24/2018 Page: 1 Nos , UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT IN RE: GREEKTOWN HOLDINGS, LLC Debtor, BUCHWALD CAPITAL ADVISORS, LLC, LITIGATION TRUSTEE TO THE GREEKTOWN LITIGATION TRUST, PLAINTIFF-APPELLANT, V. SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS; KEWADIN CASINOS GAMING AUTHORITY, APPELLEES. Appeals from the United States District Court for the Eastern District of Michigan, Southern Division, Case Nos. 14-cv-14103, 16-cv-13643, Hon. Paul D. Borman BRIEF OF APPELLEES SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS AND KEWADIN CASINOS GAMING AUTHORITY Grant S. Cowan FROST BROWN TODD LLC 3300 Great American Tower 301 East Fourth Street Cincinnati, Ohio (513) (513) (facsimile) gcowan@fbtlaw.com Counsel for Appellees Sault Ste. Marie Tribe of Chippewa Indians and Kewadin Casinos Gaming Authority

2 Case: Document: 23 Filed: 05/24/2018 Page: 2 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1 and Sixth Circuit Rule 26.1, Appellees Sault Ste. Marie Tribe of Chippewa Indians and Kewadin Casinos Gaming Authority make the following disclosure: 1. Is said party a subsidiary or affiliate of a publicly owned corporation? No. 2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? No. /s/ Grant S. Cowan Grant S. Cowan Counsel for Appellees Sault Ste. Marie Tribe of Chippewa Indians and Kewadin Casinos Gaming Authority i

3 Case: Document: 23 Filed: 05/24/2018 Page: 3 TABLE OF CONTENTS PAGE CORPORATE DISCLOSURE STATEMENT... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... vi INTRODUCTION... 1 STATEMENT OF THE ISSUES... 4 STATEMENT OF THE CASE... 5 I. Statement of Facts and Procedural History... 5 A. Rulings on Congressional Abrogation... 7 B. Rulings on Alleged Tribe Waiver... 8 SUMMARY OF ARGUMENT STANDARD OF REVIEW ARGUMENT I. CONGRESS DID NOT ABROGATE TRIBAL SOVEREIGN IMMUNITY IN SECTION 106 OF THE BANRUPTCY CODE A. When Congress Enacted Section 106 of the Bankruptcy Code, It Knew That to Abrogate Tribal Immunity, It Must Unequivocally Express That Intent and It Knew That Indian Tribes Are Considered Different Than Foreign and Domestic Governments B. Congress Considers Indian Tribes to be Different than Domestic Governments ii

4 Case: Document: 23 Filed: 05/24/2018 Page: 4 C. Congress Knows How to Unequivocally Express Its Intent to Abrogate Tribal Sovereign Immunity D. Numerous Courts Have Held That Congress Did Not Unequivocally Express Its Intent to Abrogate Tribal Sovereign Immunity in Section 106 of the Bankruptcy Code E. The Trustee Tries to Shoehorn Indian Tribes into the Term Domestic Governments F. The Trustee s Statutory Context Argument is Wrong Because the Bankruptcy Code s Definition of Entity Uses the Term Includes Rather than Means G. The Term Indian Tribe is not a Special or Magic Term II. THE TRIBE DID NOT WAIVE ITS TRIBAL SOVEREIGN IMMUNITY, BY LITIGATION CONDUCT OR OTHERWISE A. The Tribe s Tribal Code Provides that Tribal Sovereign Immunity Can Only be Waived by Formal Board Resolution B. Cases Involving Waiver of a State s Eleventh Amendment Immunity Are Not Applicable to Indian Tribes C. Even If the Tribe Itself Had Filed for Bankruptcy Protection, Instead of the Debtors, the Tribe Would Not Have Waived its Tribal Immunity as to the Trustee s Adversary Proceeding D. No Court Has Found Waiver of Tribal Sovereign Immunity by Litigation Conduct Under Facts Even Remotely Similar to Those in This Case E. The Trustee s Reliance on Central Virginia Community College v. Katz Is Misplaced iii

5 Case: Document: 23 Filed: 05/24/2018 Page: 5 F. The Trustee s Reliance on First National City Bank v. Banco Para is Misplaced CONCLUSION CERTIFICATION OF COMPLIANCE CERTIFICATE OF SERVICE DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS iv

6 Case: Document: 23 Filed: 05/24/2018 Page: 6 TABLE OF AUTHORITIES CASES PAGE(S) Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006) Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)... 16, 29, 30 Blatchford v. Native Village of Noatak, 501 U.S. 775, 115 L.Ed.2d 686, 111 S.Ct (1991) Blue Legs v. U.S. Bureau of Indian Affairs, 867 F.2d 1094 (8th Cir. 1989) Boaz v. FedEx Customer Info. Servs., Inc., 725 F.3d 603 (6th Cir. 2013) Bodi v. Shingle Springs Band of Miwok Indians, 832 F.3d 1011 (9th Cir. 2016)... 34, 35 Bull v. United States, 295 U.S. 247, 55 S.Ct. 695, 79 L.Ed (1935) Burgess v. United States, 553 U.S. 124, 128 S.Ct. 1572, 170 L.Ed.2d 478 (2008) C & L Enterprises v. Potawatomi Indian Tribe (2001) 532 U.S. 411, 121 S.Ct , 31 Central Virginia Community College v. Katz, 546 U.S. 356 (2006)... 41, 42 Cherokee Nation v. Georgia, 5 Pet. 1, 17, L.Ed.25 (1831) Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Florida, 692 F.3d 1200 (11th Cir. 2012) Danka Funding Company, LLC v. Sky City Casino, 329 N.J. Super. 357, 747 A.2d 837 (1999) Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct (1989)... 16, 30 v

7 Case: Document: 23 Filed: 05/24/2018 Page: 7 DRFP L.L.C. v. Republica Bolivariana de Venezuela, 622 F.3d 513 (6th Cir. 2010) FAA v. Cooper, 132 S.Ct (2012) First National City Bank v. Banco Para El Commercio Exterior de Cuba, 462 U.S. 611, 77 L.Ed.2d 46, 103 S.Ct (1983) Florida Paraplegic Assn. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999)... 18, 20 Frederick v. United States, 386 F.2d 481 (5th Cir.1967)... 39, 40 Gardner v. New Jersey, 329 U.S. 566 (1947)... 33, 35, 36 In re Greektown Holdings, LLC, 532 B.R. 680 (E.D. Mich. 2015)... 21, 28 In re Greektown Holdings, LLC, 728 F.3d 567 (6th Cir. 2013)... 7 In re Hood, 319 F.3d 755 (6th Cir. 2003) In re Mayes, 294 B.R. 145 (10th Cir. BAP 2003) In re Money Centers of America, Inc WL (D. Del. March 29, 2018) In re Nat l Cattle Cong., 247 B.R. 259 (Bankr. N.D. Iowa 2000) In re Seay, 244 B.R. 112 (Bankr. E.D. Tenn. 2000) In re Star Group Communications, Inc., 568 B.R. 616 (Bankr. D.N.J. 2016) In re Whitaker, 474 B.R. 687 (8th Cir. BAP 2012)... 21, 22, 23 In re White, 139 F.3d 1268 (9th Cir. 1998) Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324 (10th Cir. 1982) Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751, 118 S. Ct. 1700, 140 L. Ed. 2d 981 (1998) , 31 vi

8 Case: Document: 23 Filed: 05/24/2018 Page: 8 Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055 (9th Cir. 2004), cert. denied, 543 U.S. 871, 125 S.Ct. 99, 160 L.Ed.2d 118 (2004)... 21, 23 Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613 (2002)... 33, 34 Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, (6th Cir. 2009)... 2, 11, 31, 32, 33 Merck & Co. v. Reynolds, 559 U.S. 633, 130 S.Ct. 1784, 176 L.Ed.2d 582 (2010) Meyers v. Oneida Tribe of Indians of Wisconsin, 836 F.3d 818 (7th Cir. 2016)...18, 21, 25, 26, 28 Michigan v. Bay Mills Indian Community, U.S., 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014)... 1, 24 Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 105 S. Ct. 2399, 85 L. Ed. 2d 753 (1985) Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16 (1st Cir. 2006)... 13, 29 Native American Distributing v. Seneca-Cayuga Tobacco Company, 546 F.3d Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, 881 F.2d 458 (8th Cir. 1993) Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991)... 3, 12, 16, 24, 34, 37, 38 Osage Tribal Council ex rel. Osage Tribe of Indians v. U.S. Dep't of Labor, 187 F.3d 1174 (10th Cir. 1999) Public Service Co. v. Shoshone-Bannoc Tribes, 30 F.3d 1203 (9th Cir. 1994) Quinault Indian Nation v. Pearson, 868 F.3d 1093 (9th Cir. 2017) vii

9 Case: Document: 23 Filed: 05/24/2018 Page: 9 Rosebud Sioux Tribe v. Val-U Construction Co. of South Dakota, Inc., 50 F.3d 560 (8th Cir. 1995) Rupp v. Omaha Indian Tribe, 45 F.3d 1241 (8th Cir. 1995)... 40, 41 Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282 (11th Cir. 2001) Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct (1978)... 14, 15, 25, 33 Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 124 S. Ct. 1905, 158 L. Ed. 2d 764 (2004) Three Affiliated Tribes of Ft. Berthold v. Wold Engineering, 476 U.S. 877, 90 L.Ed.2d 881, 106 S.Ct (1986)... 4, 33 United States v. Agnew, 423 F.2d 513 (9th Cir. 1970) United States v. Kagama, 118 U.S. 375, 6 S. Ct. 1109, 30 L. Ed. 228 (1886) United State v. Latham, 754 F.2d 747 (7th Cir. 1985) United States v. Neyland, No , 1998 WL (6th Cir. June 25, 1998) United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981) United States v. United States Fid. & Guar. Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940)... 3, 12, 14, 37 United States v. Weddell, 12 F. Supp. 2d 999 (D.S.D. 1998), 187 F.3d 645 (8 th Cir. 1999) United States v. Whiting, 165 F.3d 631 (8th Cir. 1999) Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 790 F.3d 1000 (10th Cir. 2015) Wichita and Affiliated Tribes of Okla. v. Hodel, 788 F.2d 765 (D.C. 1986) viii

10 Case: Document: 23 Filed: 05/24/2018 Page: 10 World Touch Gaming, Inc. v. Massena Management, LLC, 117 F.Supp.2d 271 (N.D.N.Y. 2009) OTHER AUTHORITIES CITED: Bankruptcy Reform Act of 1978, Public Law Bankruptcy Reform Act of 1994, Public Law U.S.C U.S.C , 15, 16, 21, 22, U.S.C. 106(a)... 1, 2, 3, 4, 8, 10,13, 14, 15, 21, 22, 23, U.S.C. 101(10) U.S.C. 101(27)...4, 8, 10, 13, 15, U.S.C U.S.C. 1681a(b) U.S.C U.S.C U.S.C. 3002(7) U.S.C. 3002(10) U.S.C. 300j-9(i)(2)(a) U.S.C. 300f(10) U.S.C. 300f(12) U.S.C. 6903(13) ix

11 Case: Document: 23 Filed: 05/24/2018 Page: U.S.C. 6903(15) U.S.C. 6972(a)(1)(A) U.S.C. 8802(17) U.S.C. 9601(16) U.S.C.App. 1811(c)(1) U.S.C.App. 1811(c)(2) x

12 Case: Document: 23 Filed: 05/24/2018 Page: 12 INTRODUCTION Indian tribes are immune from suit unless Congress has abrogated tribal immunity in clear, unequivocal statutory language. The Supreme Court recently reemphasized that (a) Indian tribes are domestic dependent nations; (b) Indian tribes retain a special brand of sovereignty; (c) the baseline position for Congressional abrogation of tribal immunity is that Congress must unequivocally express that purpose; and (d) courts will not lightly assume that Congress in fact intends to undermine Indian self-government. Michigan v. Bay Mills Indian Community, U.S., 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014) (quotations and citations omitted). Plaintiff-Appellant Buchwald Capital Advisors LLC, solely in its capacity as Litigation Trustee for the Greektown Litigation Trust (the Trustee ), filed suit against Appellees the Sault Ste. Marie Tribe of Chippewa Indians ( Tribe ) and the Tribe s political subdivision, Kewadin Casinos Gaming Authority ( Kewadin ), seeking to recover $177 million in alleged fraudulent transfers that the Trustee claims were made to or for the benefit of the Tribe. 1 Recognizing that the Tribe enjoys tribal sovereign immunity, the Trustee contends that Congress abrogated tribal sovereign immunity in Section 106(a) of the Bankruptcy Code. However, 1 For simplicity, this brief generally uses Tribe to refer to both the Tribe and Kewadin. 1

13 Case: Document: 23 Filed: 05/24/2018 Page: 13 the Bankruptcy Code nowhere mentions Indian tribes and thus the Trustee is forced to argue that Congress intended to include Indian tribes in the term domestic government in Section 106(a). Yet, the Supreme Court has never found Congressional abrogation of tribal sovereign immunity in a statute that does not specifically refer to Indian tribes. Thus, accepting the Trustee s conclusion requires inferring that Congress intended to abrogate tribal sovereign immunity, but inferring Congressional abrogation of tribal immunity is not permitted under Supreme Court jurisprudence. This is especially so given that Congress has demonstrated in other legislation that it knows how to abrogate tribal sovereign immunity, by specifically referring to Indian tribes when it intends that result. In addition to Congressional abrogation, Indian tribes can waive their tribal immunity, but only if they do so clearly. This Court has held that a tribe may choose to expressly waive its tribal-sovereign immunity either in its charter or by agreement. Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 921 (6th Cir. 2009). The Tribe s tribal code requires a formal board resolution to waive the Tribe s immunity from suit. It is undisputed that no such resolution exists in this case, and under Biofuels, the Tribe has not waived its tribal sovereign immunity. Nevertheless, the Trustee contends that the Tribe waived its tribal immunity by litigation conduct. The Trustee contends that the Tribe effectively controlled 2

14 Case: Document: 23 Filed: 05/24/2018 Page: 14 the debtors in the underlying bankruptcy proceedings and, by causing them to file for bankruptcy protection, the Tribe waived its tribal immunity as to the adversary proceeding brought by the Trustee. But, under Supreme Court precedent, even if the Tribe itself had filed the bankruptcy petition, doing so would not have waived its tribal immunity as to the fraudulent transfer claims brought by the Tribe. The Supreme Court has consistently held that even when an Indian tribe files suit, it does not waive its tribal immunity as to cross-claims and counterclaims seeking damages. United States v. United States Fid. & Guar. Co., 309 U.S. 506, , 60 S.Ct. 653, , 84 L.Ed. 894 (1940); Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, , 111 S. Ct. 905, 909, 112 L. Ed. 2d 1112 (1991). Thus, because Congress has not abrogated tribal immunity under Section 106(a) of the Bankruptcy Code, and because the Tribe has not waived its tribal immunity as to the claims brought by the Trustee, the Tribe is immune from suit and the district court correctly and properly dismissed the Trustee s claims against the Tribe. 2 2 The Supreme Court appears to use the terms tribal immunity and tribal sovereign immunity interchangeably. So too will this Brief. See Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751, 756, 118 S. Ct. 1700, , (footnote continued on next page) 3

15 Case: Document: 23 Filed: 05/24/2018 Page: 15 STATEMENT OF ISSUES 1. Did Congress unequivocally and unmistakably express its intent to abrogate the sovereign immunity of Indian tribes in clear language in 11 U.S.C. 101(27) and 11 U.S.C. 106(a), which do not refer to Indian tribes? 2. Did the Tribe clearly express its intent to waive its tribal sovereign immunity as to the fraudulent transfer claims brought by the Litigation Trustee, thus consenting to the adversary proceeding and the claims asserted therein? (footnote continued from previous page) 140 L. Ed. 2d 981 (1998); Three Affiliated Tribes of Ft. Berthold v. Wold Engineering, 476 U.S. 877, 892, 90 L.Ed.2d 881, 106 S.Ct. 2305, 2314 (1986). 4

16 Case: Document: 23 Filed: 05/24/2018 Page: 16 STATEMENT OF THE CASE I. Statement of Facts and Procedural History On May 29, 2008, Greektown Holdings, LLC ( Holdings ), Greektown Casino, and several other entities (collectively Debtors ) filed for protection under Chapter 11 of the Bankruptcy Code. Complaint, RE 5, 9, Page ID # The Tribe filed Notices of Appearance in the Debtors bankruptcy proceedings and proofs of claims against two of the Debtors. Id., 27, 30, Page ID # 54. On January 22, 2010, the bankruptcy court entered an order confirming the Debtors joint plans for reorganization ( Confirmation Order ). Id., 13, Page ID # 52. The Confirmation Order specifically provides that neither the Tribe nor Kewadin shall be deemed or construed to have waived, released or relinquished their right to defend and attack any [bond avoidance] claim on all possible procedural and/or substantive grounds. Order Confirming Second Amended Joint Plans, RE 2046 (No ), Page 59 of 61 (this document does not have Page ID #s). On May 28, 2010, the Trustee filed an adversary proceeding complaint against the Tribe and others, seeking to avoid certain alleged fraudulent transfers made by Holdings in 2005 to the Tribe and the other defendants. According to the Trustee s complaint, Greektown Casino opened in downtown Detroit, Michigan in 3 Except as otherwise indicated, record citations refer to the record in District Court Case No. 16-cv

17 Case: Document: 23 Filed: 05/24/2018 Page: 17 November Complaint, RE 5, 32, Page ID # 55. Holdings was formed in September 2005 in connection with the refinancing of the debt of Greektown Casino and at the time it was formed, Holdings sole asset was its membership interests in Greektown Casino. Id., 35. On December 2, 2005, Holdings and a subsidiary issued $185 million of senior notes (the Notes ). Although the Tribe only received $6 million of the proceeds of the Notes offering, the Trustee alleged that another $171 million of the Notes proceeds were transferred to other entities and individuals to keep the Tribe from losing its interest in the Greektown Casino, and thus those transfers were made for the benefit of the Tribe and are recoverable from the Tribe. Id., 43, 51-53, Page ID # The Trustee alleged that when Holdings made the transfers of the Notes proceeds, it received less than reasonably equivalent value and was rendered insolvent. Id., 60-61, Page ID #60. The Trustee claimed that the transfers were avoidable pursuant to Section 544 of the Bankruptcy Code and Michigan s Uniform Fraudulent Transfer Act, and recoverable from the Tribe pursuant to Section 550 of the Bankruptcy Code. Id., 63 Page ID # 61. The Trustee s complaint seeks to recover $177 million from the Tribe. The Tribe filed a motion to dismiss, seeking dismissal of the Trustee s complaint because the claims were barred by the Tribe s sovereign immunity. Motion to Dismiss, RE 5, Page ID # On December 23, 2010, the 6

18 Case: Document: 23 Filed: 05/24/2018 Page: 18 bankruptcy court entered an Order, upon the stipulation of the parties, bifurcating the hearing on the Tribe s motion to dismiss. Pursuant to that Order, the bankruptcy court agreed to first consider and rule upon the legal issue of whether Congress abrogated the Tribe s sovereign immunity by enacting Section 106 of the Bankruptcy Code. Order Upon Stipulation, RE 5, Page ID # (the bankruptcy court thus held in abeyance the issue of whether the Tribe and Kewadin consensually waived their sovereign immunity. ). A. Rulings on Congressional Abrogation On August 13, , the bankruptcy court denied the Tribe s motion to dismiss. Opinion Denying Renewed Motion to Dismiss, RE 1 (No. 14-cv-14103), Page ID ## The bankruptcy court held that Congress abrogated sovereign immunity as to a governmental unit, which term is defined to include a domestic government, and because the court concluded Indian tribes are both domestic and governments, Congress expressed its clear, unequivocal, and unambiguous intent to abrogate tribal sovereign immunity. Id., RE 1, Page ID # 43. The Tribe appealed the decision to the district court. 4 Although the parties argued the motion to dismiss in December 2010, the Bankruptcy Court had not ruled on the Tribe s motion to dismiss as of In 2012, the Tribe and the Trustee entered into a settlement agreement, but the settlement bar order was overturned by this Court and the adversary proceeding was reopened. See In re Greektown Holdings, LLC, 728 F.3d 567 (6th Cir. 2013). 7

19 Case: Document: 23 Filed: 05/24/2018 Page: 19 On June 9, 2015, the district court reversed, concluding that it could not say with perfect confidence that Congress intended, by using the generic phrase other domestic governments in 101(27), to clearly, unequivocally, unmistakably and without ambiguity abrogate tribal sovereign immunity in 106(a). Opinion and Order Reversing Bankruptcy Court Order, RE 5, Page ID # 203. The district court noted that [t]here is not a single example of a Supreme Court decision finding that Congress intended to abrogate the sovereign immunity of the Indian tribes without specifically using the words Indians or Indian tribes. RE 5, Page ID # 225. The district court remanded the case to the bankruptcy court to determine if the Tribe had waived its tribal sovereign immunity. B. Rulings on Alleged Tribe Waiver On September 29, 2016, the bankruptcy court granted the Tribe s motion to dismiss on the waiver issues, finding that the Tribe had not waived its tribal sovereign immunity. Opinion on Remanded Sovereign Immunity Waiver Issue, RE 5, Page ID ## Noting that the Tribe had not passed a board resolution waiving tribal sovereign immunity as to the claims at issue (as required under the Tribe s governing tribal code to waive sovereign immunity), nor had the Tribe entered into any relevant contract waiving sovereign immunity, the bankruptcy court concluded that any litigation conduct of the Tribe in connection with the 8

20 Case: Document: 23 Filed: 05/24/2018 Page: 20 bankruptcy proceedings was insufficient to waive the Tribe s sovereign immunity. Id., RE 5, Page ID ## , The bankruptcy court further ruled that (a) even if the Tribe had actually or effectively filed the Debtors petition, doing so would not waive tribal sovereign immunity as to an adversary proceeding subsequently filed against the Tribe; and (b) even if the Debtors had acted as alter egos and agents of the Tribe, their conduct could not waive tribal immunity because any such waiver must by its nature be considered implied and that would be legally insufficient. Id., RE 5, Page ID ## , The Trustee appealed to the district court and on January 23, 2018, the district court affirmed. Opinion and Order Affirming Bankruptcy Court Opinion and Order, RE 16, Page ID ## The district court rejected the Trustee s novel theory of implied waiver, which theory was based on doctrines of alter-ego piercing and/or agency and would necessarily require a finding of liability by implication. Id. RE 16, Page ID # 744. This appeal followed. 9

21 Case: Document: 23 Filed: 05/24/2018 Page: 21 SUMMARY OF ARGUMENT I. Indian tribes are domestic dependent nations that exercise inherent sovereign authority over their members and territories. Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation. A. Statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit. B. To abrogate tribal sovereign immunity, Congress must express that purpose in clear and unequivocal statutory language. A waiver of tribal sovereign immunity cannot be implied and an inference will not suffice. A court must be able to say with perfect confidence that Congress intended to abrogate tribal sovereign immunity. C. Congress did not abrogate tribal sovereign immunity in 11 U.S.C. 106(a), which purports to abrogate sovereign immunity as to any governmental unit, which term is defined in 11 U.S.C. 101(27) to include a domestic government. Congress never mentioned Indian tribes in Section 106(a), Section 101(27), or anywhere else in the Bankruptcy Code. To conclude that Congress intended to include Indian tribes in the term domestic government would require an inference, which is not 10

22 Case: Document: 23 Filed: 05/24/2018 Page: 22 permitted in determining whether Congress abrogated tribal sovereign immunity. D. Numerous courts have held that where Congress does not mention or refer to Indian tribes in a statute purporting to abrogate tribal sovereign immunity, the required clear and unequivocal expression of Congressional abrogation is absent. E. Courts have found Congressional abrogation of tribal sovereign immunity where Congress does specifically refer to Indian tribes in the statute at issue. But, the Supreme Court has never found Congressional abrogation of tribal sovereign immunity in a statute that does not specifically refer to Indian tribes. II. As with Congressional abrogation of tribal sovereign immunity, a tribe s waiver of its tribal immunity must be expressed in clear terms. Thus, a tribe may choose to expressly waive its tribal-sovereign immunity either in its charter or by agreement. Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc., 585 F.3d 917, 921 (6th Cir. 2009). A. It is undisputed that the Tribe s tribal code requires any purported waiver of tribal sovereign immunity to be by a formal resolution, approved by the Tribe s board of directors. It is further undisputed that no such resolution was approved waiving the Tribe s sovereign immunity as to the 11

23 Case: Document: 23 Filed: 05/24/2018 Page: 23 claims asserted against it by the Trustee. Accordingly, the Tribe did not waive its tribal sovereign immunity in this case. B. Even if the Tribe had filed for bankruptcy protection as opposed to the Debtors such litigation conduct would not amount to a waiver of tribal sovereign immunity as to the fraudulent transfer claims filed against the Tribe in the Trustee s adversary proceeding. The Supreme Court has consistently held that an Indian tribe does not waive its sovereign immunity from actions that could not otherwise be brought against it merely because those actions were pleaded in a cross-claim or counterclaim to an action filed by the tribe. United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, , 60 S.Ct. 653, , 84 L.Ed. 894 (1940); Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, , 111 S. Ct. 905, 909, 112 L. Ed. 2d 1112 (1991). STANDARD OF REVIEW The Court reviews questions of subject matter jurisdiction, including issues of sovereign immunity, de novo. DRFP L.L.C. v. Republica Bolivariana de Venezuela, 622 F.3d 513, 515 (6th Cir. 2010). 12

24 Case: Document: 23 Filed: 05/24/2018 Page: 24 ARGUMENT I. CONGRESS DID NOT ABROGATE TRIBAL SOVEREIGN IMMUNITY IN SECTION 106 OF THE BANKRUPTCY CODE A. When Congress Enacted Section 106 of the Bankruptcy Code, It Knew That to Abrogate Tribal Immunity, It Must Unequivocally Express That Intent and It Knew That Indian Tribes Are Considered Different Than Foreign and Domestic Governments This Court presume[s] that Congress is aware of the law (including judicial precedent) relevant to legislation it enacts. Boaz v. FedEx Customer Info. Servs., Inc., 725 F.3d 603, 607 (6th Cir. 2013), citing Merck & Co. v. Reynolds, 559 U.S. 633, 130 S.Ct. 1784, 1795, 176 L.Ed.2d 582 (2010) ( We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent. ); Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 26 (1st Cir. 2006) ( [W]e must presume that Congress acts with knowledge of relevant Supreme Court precedent. ). Congress is thus presumed to have acted with knowledge of the Supreme Court s pronouncements concerning Congressional abrogation of tribal sovereign immunity when it passed the Bankruptcy Reform Act of 1978, Public Law (the Bankruptcy Code ). The Trustee contends that Congress clearly and unequivocally expressed its intent to abrogate tribal sovereign immunity in the Bankruptcy Code in Sections 101(27) and 106(a). Thus, the starting point is the Supreme Court pronouncements 13

25 Case: Document: 23 Filed: 05/24/2018 Page: 25 concerning tribal sovereign immunity as of the time that Congress first passed, and later amended, Section 106(a). Prior to Congress s enactment of the Bankruptcy Code, the Supreme Court had decided two landmark cases concerning tribal sovereign immunity and Indian tribes in general. In 1940, in United States v. U. S. Fid. & Guar. Co., 309 U.S. 506, , 60 S. Ct. 653, , 84 L. Ed. 894 (1940), the court recognized that Indian Nations are unique, with their unusual governmental organization and peculiar problems, and that they are exempt from suit without Congressional authorization. Id. (emphasis added). In 1978, just six months before Congress enacted the Bankruptcy Code, the Supreme Court decided Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct (1978). The court was called upon to determine whether Title I of the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C , may be interpreted to impliedly authorize suits against Indian tribes for declaratory or injunctive relief to enforce the provisions of the ICRA. Santa Clara, 436 U.S. at In concluding that Congress had not abrogated tribal immunity in the ICRA, the Santa Clara court said (a) Indian tribes are distinct, independent political communities, retaining their original natural rights in matters of local self-government; (b) [a]lthough no longer possessed of the full attributes of sovereignty, they remain a separate people, with the power of regulating their internal and social relations; (c) tribes remain quasi- 14

26 Case: Document: 23 Filed: 05/24/2018 Page: 26 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; and (d) it is settled that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed. Santa Clara, 436 U.S. at 55, 58, (citations omitted) (emphasis added). With these Supreme Court pronouncements in mind, Congress enacted Section 106 of the Bankruptcy Code, the provision by which the Trustee contends Congress unequivocally and unmistakably expressed its intent to abrogate the tribal sovereign immunity of Indian tribes in clear statutory language. Section 106 purports to abrogate sovereign immunity for certain claims asserted against a governmental unit, which is defined in Section 101(27) to mean 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. 11 U.S.C. 101(27), 106(a). The Bankruptcy Code does not refer to Indian tribes, in Section 101(27) or Section 106(a) or anywhere else in the Code. Congress amended the Bankruptcy Code several times after its 1978 enactment, doing so after the Supreme Court issued decisions that further 15

27 Case: Document: 23 Filed: 05/24/2018 Page: 27 highlighted the need for Congress to make clear its intent to abrogate tribal immunity in any legislation seeking to do so. In 1985, the Supreme Court held that to abrogate states sovereign immunity, Congress must make its intention unmistakably clear in the language of the statute. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985) (emphasis added). That same year, the Supreme Court recognized that statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit. Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S. Ct. 2399, 2403, 85 L. Ed. 2d 753 (1985). In 1989, the Supreme Court reminded Congress that, only when it can be said with perfect confidence that Congress intends to abrogate sovereign immunity, will such immunity be abrogated. Dellmuth v. Muth, 491 U.S. 223, 231, 109 S.Ct (1989) (emphasis added). Two years later, in 1991, the Supreme Court again reminded Congress that Congressional abrogation of tribal sovereign immunity must be clear and may not be implied. Okla. Tax Comm n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905 (1991) ( Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation. ). With these Supreme Court pronouncements in mind, in 1994, Congress amended the Bankruptcy Code, significantly expanding Section 106. Bankruptcy Reform Act of 1994, PL , October 22, 1994, 108 Stat

28 Case: Document: 23 Filed: 05/24/2018 Page: 28 Yet, Congress once again chose not to include the term Indian tribes in the definition of governmental unit, nor did it mention Indian tribes anywhere in the significant amendments made to the Bankruptcy Code. B. Congress Considers Indian Tribes to be Different than Domestic Governments In various legislation, Congress has drawn a distinction between Indian tribes and domestic governments. For example, the provisions of the Animal Health Protection Act provide that, to carry out this subtitle, the Secretary may cooperate with other Federal agencies, States or political subdivisions of States, national governments of foreign countries, local governments of foreign countries, domestic or international organizations, domestic or international associations, Indian tribes, and other persons. 7 U.S.C (emphasis added). Similarly, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provides that the term "natural resources" means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States, any State or local government, any foreign government, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe. 42 U.S.C. 9601(16) (emphasis added). Likewise, in the definition section of the Biomass Energy and Alcohol Fuels Act, Congress defined the term person to mean any individual, company, 17

29 Case: Document: 23 Filed: 05/24/2018 Page: 29 cooperative, partnership, corporation, association, consortium, unincorporated organization, trust, estate, or any entity organized for a common business purpose, any State or local government (including any special purpose district or similar governmental unit) or any agency or instrumentality thereof, or any Indian tribe or tribal organization.) 42 U.S.C. 8802(17) (emphasis added). What these statutes demonstrate is that (a) Congress considers Indian tribes different than and separate from state and local governments (i.e., domestic governments) and (b) when Congress seeks to include Indian tribes in a statute that also involves federal, state, and local governmental units, it does so by specifically referring to Indian tribes. C. Congress Knows How to Unequivocally Express Its Intent to Abrogate Tribal Sovereign Immunity In various legislation, Congress has demonstrated that it knows how to unequivocally abrogate immunity for Indian tribes. Meyers v. Oneida Tribe of Indians of Wisconsin, 836 F.3d 818, 827 (7th Cir. 2016); Florida Paraplegic Assn. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126, 1132 (11th Cir. 1999) ( Congress comprehends the need to address Indian tribes specifically and individually when it describes the means of enforcing statutorily created rights through judicial action. ). For example, in the Resource Conservation and Recovery Act of 1976 ( RCRA ), Congress authorized citizens to bring suits to force compliance with 18

30 Case: Document: 23 Filed: 05/24/2018 Page: 30 the statute against any person who is alleged to be in violation of the statute s substantive provisions. Id.; 42 U.S.C. 6972(a)(1)(A). The definition of person includes a municipality, which in turn encompasses an Indian tribe by express statutory definition. Id.; 42 U.S.C. 6903(13), (15) (emphasis added). This specific inclusion of Indian tribes in the statutory definition clearly indicates congressional intent to abrogate the Tribe's sovereign immunity with respect to violations of the RCRA. Blue Legs v. U.S. Bureau of Indian Affairs, 867 F.2d 1094, 1097 (8th Cir. 1989). Likewise, the definitional sections of the Safe Water Drinking Act define the term person to include a municipality, and municipality in turn is defined to include an Indian tribe. 42 U.S.C. 300j-9(i)(2)(a), 300f(10), 300f(12), 42 U.S.C. 300f(10) (emphasis added). This was sufficient for the Tenth Circuit to conclude that, under the express language of the Act, Indian tribes are included within the coverage of the whistle blower enforcement provisions. Osage Tribal Council ex rel. Osage Tribe of Indians v. U.S. Dep't of Labor, 187 F.3d 1174, 1181 (10th Cir. 1999). Similarly, the Fair Debt Collection Procedures Act defines person to include a natural person (including an individual Indian), a corporation, a partnership, an unincorporated association, a trust, or an estate, or any other public or private entity, including a State or local government or an Indian tribe

31 Case: Document: 23 Filed: 05/24/2018 Page: 31 U.S.C. 3002((7), 3002 (10) (emphasis added). Reading these statutory provisions together, the clear language supports a conclusion that Congress waived the sovereign immunity of Indian tribes. United States v. Weddell, 12 F. Supp. 2d 999, 1000 (D.S.D. 1998), aff'd, 187 F.3d 645 (8 th Cir. 1999). Similarly, the Hazardous Materials Transportation Uniform Safety Act of 1990 ( HMTUSA ), repealed in 1994, provided that [a]ny person, including a State or political subdivision thereof or Indian tribe, may apply to the Secretary [of Energy] for [an administrative] determination of whether that requirement is preempted by [federal law]. Florida Paraplegic, 166 F.3d at 1132; 49 U.S.C.App. 1811(c)(1). The statute provided that [n]othing in [this section] prohibits [a] person directly affected by any requirement of a State or political subdivision thereof or Indian tribe, from seeking a determination of preemption in any court of competent jurisdiction Id.; 49 U.S.C.App. 1811(c)(2) (emphasis added). This language was held sufficiently clear to manifest Congress s intent to abrogate tribal sovereign immunity from suits seeking a declaration of federal preemption under the HMTUSA of an Indian tribe s attempt to regulate the transportation of hazardous substances. Public Service Co. v. Shoshone-Bannoc Tribes, 30 F.3d 1203 (9th Cir. 1994); Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, 991 F.2d 458 (8th Cir. 1993). 20

32 Case: Document: 23 Filed: 05/24/2018 Page: 32 D. Numerous Courts Have Held That Congress Did Not Unequivocally Express Its Intent to Abrogate Tribal Sovereign Immunity in Section 106 of the Bankruptcy Code The Trustee relies on the Ninth Circuit s decision in Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055 (9th Cir. 2004), cert. denied, 543 U.S. 871, 125 S.Ct. 99, 160 L.Ed.2d 118 (2004). The Krystal court concluded that the category of Indian tribes is simply a specific member of the group of domestic governments, the immunity of which Congress intended to abrogate in Section 106(a) of the Bankruptcy Code. Id. at Numerous other federal courts that have considered the question disagree with Krystal. These other courts hold that because Indian tribes are not specifically named in the Bankruptcy Code, a court would have to infer that Congress intended the phrase other foreign or domestic government to encompass tribes and that such an inference is inappropriate. Meyers v. Oneida Tribe of Indians of Wisconsin, 836 F.3d 818, 825 (7th Cir. 2016) (citing In re Greektown Holdings, LLC, 532 B.R. 680 (E.D. Mich. 2015), In re Whitaker, 474 B.R. 687, 695 (8th Cir. BAP 2012), and In re Nat l Cattle Cong., 247 B.R. 259, 267 (Bankr. N.D. Iowa 2000)); see also In re Mayes, 294 B.R. 145, 148 n. 10 (10th Cir. BAP 2003) (Indian tribes are probably not a domestic government and Section 106 likely could not abrogate tribal sovereign immunity); In re Star Group Communications, Inc., 568 B.R. 616 (Bankr. D.N.J. 2016) ( If Congress had 21

33 Case: Document: 23 Filed: 05/24/2018 Page: 33 intended to abrogate sovereign immunity to Indian tribes under [ ] 106, it could easily and expressly have done so, but it did not. ); In re Money Centers of America, Inc WL (D. Del. March 29, 2018) ( Absent a specific mention of Indian tribes in the Bankruptcy Code, any finding of abrogation under 106(a) necessarily relies on inference or implication, both of which are prohibited by the Supreme Court ). Whitaker involved four adversary proceedings against the Lower Sioux Indian Community. The tribe contended sovereign immunity protected it from suit by the trustee. The bankruptcy court and the appellate panel agreed, concluding that Congress did not abrogate tribal immunity in 11 U.S.C The court framed the issue much as the Trustee has here: whether, by enacting 106(a) of the Bankruptcy Code, Congress unequivocally expressed its intent to abrogate the sovereign immunity of Indian tribes, in explicit language, by providing for such abrogation as to other foreign or domestic governments. Whitaker, 474 B.R. at 692. The Whitaker court noted that courts have found abrogation of tribal immunity where Congress has included Indian tribes in definitions of parties who may be sued under specific statutes. Id. at 691. However, where the language of a federal statute does not include Indian tribes in the definitions of parties subject to suit or does not specifically assert jurisdiction over Indian tribes, courts find the statute insufficient to express an unequivocal abrogation of 22

34 Case: Document: 23 Filed: 05/24/2018 Page: 34 tribal sovereign immunity. Id. The Whitaker court noted that, even though Santa Clara (which reaffirmed that abrogation must be unequivocally expressed in the statutory text) was decided six months before the 1978 Bankruptcy Code was enacted, Congress did not mention Indian tribes in the statute, nor did it so when it amended 106. Whitaker, 474 B.R. at 693, 695 (rejecting Krystal and adhering to the general principle that statutes are to be interpreted for the benefit of Indian tribes and inferences like the one made in Krystal are impermissible). The court s reasoning in Whitaker is sound and was followed by the district court. Opinion and Order, RE 15 (14-cv-14103), Page ID ## Given the Supreme Court s decisions that describe Indian tribes as unique entities that are in many ways different from domestic governments, given Congress s use of the term Indian tribes in other statutes which also refer to state, local and domestic governments, and given Congress s reference to Indian tribes in other legislation where Congress sought to abrogate tribal immunity, it is clear that Congress would have used the term Indian tribe in Section 106(a) if it intended to include Indian tribes in the definition of a governmental unit and to abrogate tribal sovereign immunity. It did not do so. Accordingly, one cannot say with perfect confidence that Congress intended to abrogate tribal sovereign immunity in Section 106(a) and therefore, the Court should affirm the district court s decision finding no Congressional abrogation in Section 106(a). 23

35 Case: Document: 23 Filed: 05/24/2018 Page: 35 E. The Trustee Tries to Shoehorn Indian Tribes into the Term Domestic Governments The Trustee contends that Congress would have understood the phrase other foreign or domestic government to include Indian tribes and thus its intent to abrogate tribal immunity is unambiguous. (Trustee Appellate Brief, pg. 27). But why would Congress have understood Indian tribes to be a domestic government, when the Supreme Court consistently refers to them as something else, i.e. domestic dependent nations.? See Michigan v. Bay Mills Indian Community, U.S., 134 S.Ct. 2024, 2030, 188 L.Ed.2d 1071 (2014) ( Indian tribes are domestic dependent nations that exercise inherent sovereign immunity. ), citing Okla. Tax Comm n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905 (1991) which quoted Cherokee Nation v. Georgia, 5 Pet. 1, 17, L.Ed.25 (1831). In fact, the Supreme Court precedent when Congress enacted the Bankruptcy Code demonstrates that Indian tribes are considered unique entities that are quite different from domestic governments (e.g., federal and state governments). See e.g. United States v. Kagama, 118 U.S. 375, , 6 S. Ct. 1109, , 30 L. Ed. 228 (1886) (Indian tribes have always been regarded as having a semi-independent position when they preserved their tribal relations; not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the 24

36 Case: Document: 23 Filed: 05/24/2018 Page: 36 Union or of the state within whose limits they resided. ) (emphasis added); Santa Clara, 436 U.S. at 55, 58, ( by government structure, culture, and source of sovereignty [Indian tribes] are in many ways foreign to the constitutional institutions of the federal and state governments; ) (emphasis added). The Trustee is impermissibly attempting to shoehorn Indian tribes into the term domestic government. The Seventh Circuit recently rejected a similar attempt in connection with a putative class action brought under the Fair and Accurate Credit Transaction Act ( FACTA ). Meyers v. Oneida Tribe of Indians of Wisconsin, 836 F.3d 818, 827 (7th Cir. 2016). The issue there was whether Congress abrogated tribal sovereign immunity pursuant to a provision that purports to waive sovereign immunity as to any individual, partnership, corporation, trust, estate, cooperative association, government, or governmental subdivision or agency, or other entity. Id. at 820, quoting 15 U.S.C. 1681a(b) (emphasis added). The Meyers court began with a review of the long-standing rules of statutory interpretation involving alleged tribal immunity abrogation, noting that the Supreme Court has instructed time and again that if it is Congress intent to abrogate tribal immunity, it must clearly and unequivocally express that purpose and [a]ny ambiguity must be interpreted in favor of sovereign immunity. Id. at 824. The court said: Of course Meyers wants us to focus on whether the Oneida 25

37 Case: Document: 23 Filed: 05/24/2018 Page: 37 Tribe is a government so that we might shoehorn it into FACTA s statement that defines liable parties to include any government. But when it comes to sovereign immunity, shoehorning is precisely what we cannot do. Congress words must fit like a glove in their unequivocality. Id. at 827, citations omitted. The Trustee cannot cite a single Supreme Court decision that referred to Indian tribes as domestic governments when the Bankruptcy Code was enacted or when it was amended. Thus, to accept the Trustee s argument that Congress would have understood Indian tribes to be domestic governments, the Court must necessarily conclude that Congress impliedly intended to include Indian tribes in the term governmental unit, as domestic governments. But abrogation of tribal sovereign immunity cannot be implied it must be unequivocally expressed. Inference is insufficient to conclude that Congress abrogated tribal sovereign immunity. This is especially true where Congress has repeatedly demonstrated in other legislation that it knows how to unequivocally abrogate immunity for Indian tribes, by specifically referring to Indian tribes. Meyers, 836 F.3d at 827. F. The Trustee s Statutory Context Argument is Wrong Because the Bankruptcy Code s Definition of Entity Uses the Term Includes Rather than Means The Trustee advances another argument, contending that if Indian tribes are not governmental unit[s] within the meaning of Section 101(27), then tribes could not be creditors under the Bankruptcy Code and therefore could not file a 26

38 Case: Document: 23 Filed: 05/24/2018 Page: 38 proof of claim or request payment of administrative expenses. (Trustee s Brief, pg ). But the Trustee s argument is based on a patently incorrect interpretation of who can be a creditor under the Bankruptcy Code. The Trustee correctly notes that the term creditor means an entity that has one of several types of claims against a debtor or the debtor s estate. 11 U.S.C. 101(10). The Trustee correctly notes that the term entity includes a person, estate, trust, governmental unit, and United States trustee. The Trustee then incorrectly concludes that, because an Indian tribe is not a person (which includes an individual, partnership and corporation) nor an estate, trust or a United States trustee, it must be a governmental unit. The problem with the Trustee s argument lies in the difference between a statutory definition that uses the term means and one that uses the term includes. When a statute uses the word includes rather than means in defining a term, it does not imply that items not listed fall outside the definition. United States v. Whiting, 165 F.3d 631, 633 (8th Cir. 1999); United States v. Latham, 754 F.2d 747, 750 (7th Cir. 1985) (the word includes in a statute is a term of enlargement not of limitation, and the reference to certain entities or categories is not intended to exclude all others. ); Burgess v. United States, 553 U.S. 124, 131, n. 3, 128 S.Ct. 1572, L.Ed.2d 478 (2008) (the word includes is usually a term of enlargement and not of limitation). 27