On Thursday, the Supreme Court decided Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin. The majority held that the phrase "other foreign or domestic government" in the bankruptcy code includes Indian tribes. Justice Gorsuch in dissent, however, found that under the clear statement rule, Indian tribes were not covered by this language. Thus, for the ninth consecutive time, Gorsuch wrote an opinion ruling for the Indian tribes.
I had attended oral argument in this case back in April. Justice Gorsuch offered an admittedly "silly" hypo.
JUSTICE GORSUCH: –before we leave that, though, let's say –I'll give you a silly hypothetical. Let's say I invite you to go to my refrigerator and take out either vanilla or chocolate ice cream and help yourself. Does that license you to take the last scoop of the chocolate-vanilla swirl ice cream in a separate container, maybe one with a note on it that says "reserved for a later birthday"?
