Ninth Circuit Opening Brief In Appeal Of Ruling That Removal To Federal Court Waives Immunity

Here is the opening brief in Bodi v. Shingle Springs Band of Miwok Indians:

Shingle Springs Opening Brief

Here are some excerpts:

Because Indian tribes are sovereigns preexisting the United States and its Constitution, they may be sued only where the tribe or Congress unequivocally expresses consent to suit.  Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 58-59 (1978).  Recently, the U.S. Supreme Court has admonished that the federal courts may not “carv[e] out exceptions” to the broad protections sovereign immunity provides federally recognized tribal governments.  Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2031 (2014).  In this case, the district court did precisely that.  . . .  [T]he court reasoned that, because the Tribe could have chosen to raise its tribal sovereign immunity defense in state court, the Tribe’s choice to raise the defense in federal court waived it.  Specifically, the court concluded the Tribe had “no principled reason” to remove the federal claims filed against it to federal court, and that, by virtue of the removal, the Tribe lost its right to assert its sovereign immunity to the lawsuit, at all.  . . . No law authorized the district court to imply a waiver on this basis, and in fact, the very notion that a Tribe can waive its immunity by implication contradicts well established principles of federal Indian law governing sovereign immunity.  It also contradicts the only federal appellate court decision to address the issue of whether an Indian tribe’s removal of a case to federal court waives the Tribe’s immunity to suit.  In that case, the Eleventh Circuit Court of Appeal specifically held it does not.  Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 1208 (11th Cir. 2012). 


Apart from the dissonance between a rule that finds waiver of immunity from a tribe’s removal of a suit in which it is an involuntary participant, while preserving immunity where the tribe itself voluntarily files suit, the district court’s rule would incentivize litigation, unduly burdening both Indian tribes and federal courts alike.  Under the district court’s rule, an Indian tribe with any reason (even remotely) to anticipate suit on a federal claim would be incentivized to file preemptive suit in federal court, hoping to beat the prospective state court plaintiff to the courthouse.  This would result in a groundswell of preemptive federal court litigation by Indian tribes, requiring federal courts, in many instances, to expend their limited judicial resources issuing declarations on matters that would not have otherwise coalesced into litigation.  There is certainly no “principled reason” to impose this burden on Indian tribes and federal courts by manufacturing an arbitrary distinction between cases Indian tribes file in federal court seeking a declaration as to their sovereign rights, on one hand, and cases Indian tribes remove to federal court to assert a sovereign immunity defense, on the other.

Lower court materials here.