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News - 2022

June. 2022

Ben Wish offers analysis of court decision rescinding tribal sovereign immunity

Benjamin J. Wish is quoted in a Massachusetts Lawyers Weekly concerning an appeals court decision allowing a debtor to stop collection of an overdue loan by a creditor that was a wholly owned subsidiary of a Native American tribe.

The debtor had taken out a loan from Lendgreen, a payday lender owned in full by the Lac Du Flambeau Band of Lake Superior Chippewa Indians.

By allowing the debtor to enforce the Bankruptcy Code automatic stay against the creditor, the 1st U.S. Circuit Court of Appeals rescinded the tribe’s sovereign immunity.

Mr. Wish, who has represented tribal entities, told the publication that by defining tribes as domestic governmental units under the Bankruptcy Code, the 1st Circuit has “materially eroded the jurisprudential levees which have protected tribes from the powerful waves of the United States’ power and enabled them to act as independent sovereign nations.”

In so doing, Mr. Wish said, the court demonstrated that the bar for establishing the clear congressional intent necessary to abrogate tribal sovereign immunity was lower than many had understood.

A partner at the firm, Mr. Wish was not involved in the underlying case before the 1st Circuit.