Numa Corporation; Cedarville Rancheria of Northern Paiute Indians v. Jason Diven

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NUMA CORPORATION; CEDARVILLE
RANCHERIA OF NORTHERN PAIUTE
INDIANS,
Appellants,
v.
JASON DIVEN,
Appellee.
No. 22-15298
D.C. Nos. 2:20-bk-24311
2:21-cv-01242-KJM
MEMORANDUM*
Appeal from the United States Bankruptcy Court
for the Eastern District of California
Ronald H. Sargis, Bankruptcy Judge, Presiding
Submitted November 18, 2022**
San Francisco, California
Before: S.R. THOMAS and BENNETT, Circuit Judges, and DORSEY,*** District
Judge.
FILED
NOV 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.

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NUMA Corporation and Cedarville Rancheria of Northern Paiute Indians
(“Tribe”), a federally recognized Indian tribe, appeal the bankruptcy court’s order
imposing sanctions under 11 U.S.C. § 362(k)(1) for violation of the automatic stay
in the chapter 13 bankruptcy proceedings of debtor Jason Diven. The parties
jointly certified the appeal for direct review from the district court. We have
jurisdiction pursuant to 28 U.S.C. § 158(d)(2)(A).
We review de novo whether a Native American tribe possesses sovereign
immunity, Deschutes River All. v. Portland Gen. Elec. Co., 1 F.4th 1153, 1158 (9th
Cir. 2021), and whether Congress has abrogated a tribe’s sovereign immunity,
Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055, 1056 (9th Cir. 2004). We
also review de novo the bankruptcy court’s conclusions of law. See In re Brace,
979 F.3d 1228, 1232 (9th Cir. 2020). We affirm.1 Because the parties are familiar
with the factual and procedural history of the case, we need not recount it here.
Indian tribes are “separate sovereigns pre-existing the Constitution” and
possess common-law sovereign immunity. Santa Clara Pueblo v. Martinez, 436
U.S. 49, 56–58 (1978). “[A]n Indian tribe is subject to suit only where Congress
has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Okla.
1 We grant the National Consumer Bankruptcy Rights Center and National
Association of Consumer Bankruptcy Attorneys’ motion for leave to file an amicus
brief in support of appellee (Docket No. 19).
2

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v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). Congressional abrogation must be
“unequivocally expressed.” Santa Clara Pueblo, 436 U.S. at 58 (citation omitted).
Section 106(a) of the Bankruptcy Code abrogates the sovereign immunity of
a “governmental unit” with respect to, as relevant here, the Code’s automatic stay
provision. 11 U.S.C. § 106(a). The statute’s definition of “governmental unit”
includes any “foreign or domestic government.” 11 U.S.C. § 101(27). In Krystal
Energy, we held squarely that the definition of “governmental unit” includes tribes
and that section 106(a) of the Bankruptcy Code unequivocally abrogates tribal
sovereign immunity. 357 F.3d at 1057–58.
Krystal Energy controls here. Because Congress abrogated tribal sovereign
immunity with respect to the automatic stay provision, the Tribe cannot assert
sovereign immunity to avoid sanctions for violation of the automatic stay.
We need not and do not decide whether the Tribe waived its sovereign
immunity by filing a proof of claim in this instance.
AFFIRMED.
3

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