Ninth Circuit Holds Removal of Suit to Federal Court Does Not Abrogate Tribal Immunity

Here is the opinion in Bodi v. Shingle Springs Band of Miwok Indians.

From the court’s syllabus:

The panel reversed the district court’s denial of a motion to dismiss claims under the Family and Medical Leave Act and California law on the ground of tribal sovereign immunity.

Following the Eleventh Circuit, the panel held that a federally recognized 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 panel concluded that the act of removal does not express the clear and unequivocal waiver that is required for a tribe to relinquish its immunity.

The panel remanded the case, leaving it to the district court to address on remand any remaining immunity issues.

Briefs here.

FMLA Claim against Morongo Casino Dismissed on Immunity Grounds

Here are the materials in Fuller v. Morongo Casino (C.D. Cal.):

14-1 Motion to Dismiss

17 Opposition

28 DCT Order

Ninth Circuit Briefs in Bodi v. Shingle Springs Band of Miwok Indians — Whether Removal To Federal Court Waives Immunity


Shingle Springs Opening Brief

Puyallup and Arctic Slope Amicus Brief

Bodi Answering Brief

Shingle Springs Reply

Lower court materials here.


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.

Fed. District Court Finds Tribal Sovereign Immunity Waived by Removal in FMLA Claim


The 11th Circuit found the opposite on this issue, leaving open the possibility of an eventual circuit split.

Defendants invoked the jurisdiction of the federal courts to
raise a jurisdictional defense that could equally have been
raised in the state court. As the court recognized in its January
9, 2014 Order, “there appears no principled reason for defendants to have removed the action before asserting immunity.” (ECF No. 40.) Defendants have advanced none in their briefing or at oral argument. The court therefore finds that the Tribe has unequivocally waived any claim of sovereign immunity through removal. And, as defendants Health Program, Health Board, and Brenda Adams’s assertions of sovereign immunity derive from the Tribe’s sovereign immunity, subject matter jurisdiction over plaintiff’s claims against these defendants is also proper.

Briefs will be posted this afternoon.

44 Shingle Springs Brief in Support of Motion to Dismiss
45 Bodi Memorandum
46 Shingle Springs Reply

47 Bodi Reply

Previous materials here.

FMLA Claim against Soaring Eagle Casino Dismissed

Here is the court order in Sober v. Soaring Eagle Casino (E.D. Mich.), dismissed on grounds that the plaintiff failed to exhaust tribal court remedies (she did not appeal tribal court’s dismissal of her claim to the tribal court of appeals) — Sober v Soaring Eagle DCT Order

Here are the materials:

SCIT Motion to Dismiss

Sober Tribal Court Order