Don’t “Waive” Goodbye to Sovereign Immunity…

By: Christopher R. Scott | Intern
Theodore J. Griswold | Partner | ted.griswold@procopio.com

For those of us interested in the more wonky corners of the profession, there is an ever-expanding jurisdictional split on the horizon at the intersection of Civil Procedure and Federal Indian law. As one of those enthusiasts, I found this most recent case to be fascinating both for its approach to Federal Indian Law generally and its take on sovereign immunity. The United States District Court for the Eastern District of California recently held that a Tribe’s sovereign immunity is effectively waived by removal of an action to federal court. Bodi v. Shingle Springs Band of Miwok Indians, 2:13-CV-01044-LKK-CKD (2014).

Under the Supreme Court’s Kiowa ruling, there are only two means by which a tribe’s sovereign immunity may be abrogated, an act of Congress and explicit waiver by the tribe. Kiowa Tribe of Oklahoma v. Mfg. Techs., Inc., 523 U.S. 751 (1998). Courts are now split over how to analyze the question of waiver by removal of a case to federal court. One District Court appropriated State sovereign immunity principles for the tribal context, and another, in addition to the 11th Circuit, relied on the Supreme Court’s explicit comparison of tribal sovereign immunity to that of foreign nations in Kiowa. Id. at 759.

The District Court at bar took a third approach, that of treating tribal sovereign immunity as its own discrete issue not to be compared with the immunity of a State or foreign nation. This was refreshing, as too many decisions have attempted to force the round peg of Federal Indian law into the square hole of existing non-Native law. In this case, however, the Court’s ostensibly favorable approach did not lead to the tribal government’s desired end.

This disparate treatment can only lead to more fractured decisions, and tribal governments would be far safer first contesting jurisdiction on sovereign immunity grounds prior to taking any step toward removal, even if the desire to escape State court jurisdiction is at its peak.

Christopher is a citizen of the Cherokee Nation and just completed his second year at the University of Oklahoma College of Law.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.