August 31, 2016

Removal to Federal Court Not Waiver of Tribal Immunity

John Austin

Following the lead of the Eleventh Circuit, the Tenth Circuit has recently held that an Indian tribe does not waive its sovereign immunity from suit by exercising its right to remove to federal court a case filed against it in state court. The decision in Bodi v. Shingle Springs Band of Miwok Indians, 14-16121 (9th Circuit), cures the divide in its lower districts.

The Shingle Springs Band of Miwok Indians, a federally recognized Indian tribe located in California, owned and operated a full-service health clinic. The plaintiff filed a complaint in state court, alleging violations of the Family Medical Leave Act (the FMLA), among other claims.

First, the tribe removed the action to federal district court and then moved to dismiss on the basis of tribal immunity. The district court denied the tribe’s motion on the grounds that the tribe had unequivocally waived its immunity by removing the action to federal court. Because it found waiver on the basis of removal, the court interestingly did not reach what could be substantial grounds for loss of tribal immunity: The FMLA had abrogated tribal immunity and the tribe had waived its immunity through its resolutions to obtain federal funding to build the health clinic.

The doctrine of tribal sovereign immunity derives from the status of Indian tribes as “separate sovereigns preexisting the Constitution.” A tribe may lose its immunity by two ways: Congress may abrogate tribal immunity because “the tribes are subject to plenary control by Congress” or, a tribe may itself waive immunity. No party asserted the tribe intentionally waived its immunity when it removed the case. Indeed, it moved to dismiss the case based on that issue. The plaintiff instead argued that the voluntary act of removal is tantamount to an express waiver of tribal immunity.

The court noted that nothing in the removal statute, U.S. Code Title 28, Section 1441, abrogates tribes’ sovereign immunity. And the absence of a dedicated removal provision for tribes says nothing about whether a tribe’s decision to invoke its general removal right constitutes a clear waiver of immunity.

To resist this result, the plaintiff advanced the Supreme Court’s decision in Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 (2002), in which the court held that the defendant state waived its Eleventh Amendment immunity through the “affirmative litigation conduct” of “remov[ing] a case to federal court,” Id. at 616–17. However, the Lapides court expressly limited that decision on the basis of the odd nature of the facts in that case. In that case, Georgia had removed the case to federal court and sought immunity against a state law it had passed that waived immunity.


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John Austin

Principal at John Austin Law Firm in Raleigh, North Carolina