In Re Richard D. Greene and Donna J. Greene, Husband and Wife, Debtors, Ross Richardson, Chapter 7, Trustee-Appellee v. Mt. Adams Furniture

Mt. Adams Furniture, a wholly-owned and operated business of the Yakima Indian Nation, appeals the district court’s rejection of its claim of sovereign immunity in a bankruptcy proceeding imposing a judgment for preferential transfer by the debt- or to Mt. Adams Furniture. We hold that the Yakima Indian Nation is immune from the suit by the trustee and reverse the district court.

FACTS AND PROCEDURAL HISTORY

Mt. Adams Furniture (“Mt. Adams”) is a wholly-owned and managed enterprise of the Confederated Tribes and Bands of the Yakima Indian Nation (“Yakima Nation” or “Yakimas”) with its place of business on *592 the Yakima Indian Reservation at Wapato in the State of Washington. Mt. Adams sold furniture to Richard D. and Donna J. Greene (dba Custom Carpets) in Townsend, Montana. The stipulated facts indicate that title to the goods passed to the Greenes, and Mt. Adams had no security interest in the furniture.

Mt. Adams peaceably repossessed the furniture when the Greenes did not pay for it and took it back to Wapato. When the Greenes filed for relief under Chapter 7 of the Bankruptcy Code within ninety days, the repossession became a preferential transfer. Richardson, the…

concurring:

I agree with my colleagues that the tribe’s sovereign immunity bars this action under either theory argued by the parties — that the bankruptcy court’s exclusive jurisdiction abrogates tribal sovereign immunity and that 11 U.S.C. § 106 (c) effects *599 a waiver of that immunity. In framing the issues this way, however, both parties assume that the scope of tribal immunity was locked in at the time the treaty with the Yakima Nation was ratified and can only be changed by Congressional action; the immunity enjoyed by other sovereigns, however, is subject to evolution through the common law. As it has evolved, the immunity of a foreign state is limited to its public acts and does not extend to suits based on its commercial or private acts. I write separately to note that we have never squarely addressed the question whether the law on sovereign immunity of an Indian nation is similarly developed. It is not an easy question to resolve, and I am not so persuaded as the majority appears to be that “the scope of tribal immunity has to be measured at the common law as it existed at some earlier time.” Since this point was not directly briefed in this case, I do not believe we…

980 F.2d 590 61 USLW 2357 , 23 Bankr.Ct.Dec. 1182 , Bankr. L. Rep. P 75,030 In re Richard D. GREENE and Donna J. Greene, husband and wife, Debtors, Ross RICHARDSON, Chapter 7, Trustee-Appellee, v. MT. ADAMS FURNITURE, Defendant-Appellant. No. 91-35491. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 8, 1992. Decided Nov. 25, 1992. R. Wayne Bjur and Tim Weaver, Cockrill, Weaver & Bjur, Yakima, Wash., for defendant-appellant. Ross P. Richardson, Henningsen, Vucurovich & Richardson, Butte, Mont., for trustee-appellee. Appeal from the United States District Court for the District of Montana. Before: ALARCON, RYMER, and T.G. NELSON, Circuit Judges. T.G. NELSON, Circuit Judge: 1 Mt. Adams Furniture, a wholly-owned and operated business of the Yakima Indian Nation, appeals the district court's rejection of its claim of sovereign immunity in a bankruptcy proceeding imposing a judgment for preferential transfer by the debtor to Mt. Adams Furniture. We hold that the Yakima Indian Nation is immune from the suit by the trustee and reverse the district court. FACTS AND PROCEDURAL HISTORY 2 Mt. Adams Furniture ("Mt. Adams") is a wholly-owned and managed…