Vann v. United States Department of the Interior ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2012 Decided December 14, 2012
No. 11-5322
MARILYN VANN, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cv-01711)
Alvin Dunn argued the cause for appellants. With him on
the briefs were Jack McKay, Thomas G. Allen, Cynthia Cook
Robertson, and Jonathan Velie.
Ethan G. Shenkman, Attorney, U.S. Department of
Justice, argued the cause for Federal Appellees. On the brief
were William B. Lazarus, Aaron P. Avila, and Kurt G.
Kastorf, Attorneys.
Jonathan P. Guy argued the cause for appellees Cherokee
Nation, et al. With him on the brief were Mark S. Davies and
Christopher M. O'Connell.
2
Before: TATEL, GARLAND, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: Before the Civil War,
members of the Cherokee Nation had slaves. Those slaves
were freed in 1866 pursuant to a treaty negotiated between the
United States and the Cherokee Nation. The Treaty
guaranteed the former Cherokee slaves and their descendants
– known as the Freedmen – “all the rights of native
Cherokees” in perpetuity. See Treaty with the Cherokee, art.
9, July 19, 1866, 14 Stat. 799. Those rights included the right
to tribal membership and the right to vote in tribal elections.
At some point, the Cherokee Nation decided that the
Freedmen were no longer members of the tribe and could no
longer vote in tribal elections. A group of Freedmen
eventually sued in the U.S. District Court for the District of
Columbia, claiming that the Cherokee Nation had violated the
1866 Treaty.
Because the Cherokee Nation is a sovereign entity, it is
entitled to sovereign immunity and may not be sued without
its consent. See Oklahoma Tax Commission v. Citizen Band
Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509
(1991); Vann v. Kempthorne, 534 F.3d 741, 746 (D.C. Cir.
2008). To avoid the sovereign immunity bar, the Freedmen
plaintiffs sued not only the Cherokee Nation itself but also the
relevant executive official, the Principal Chief, in his official
capacity. Under Supreme Court precedent, that is the
standard approach by which a party may obtain declaratory or
injunctive relief with respect to a sovereign entity
notwithstanding sovereign immunity. See Ex parte Young,
3
209 U.S. 123 (1908); see also, e.g., Larson v. Domestic &
Foreign Commerce Corp., 337 U.S. 682 (1949); Shields v.
Utah Idaho Central Railroad Co., 305 U.S. 177 (1938).
In opposition to the suit, the Cherokee Nation pointed out
that it was entitled to sovereign immunity, but also that it was
a required party to the suit under Federal Rule of Civil
Procedure 19 and that the Principal Chief could not
adequately represent the Cherokee Nation’s interests.1
Therefore, according to the Cherokee Nation, the suit had to
be dismissed.
The District Court agreed with the Cherokee Nation. The
District Court concluded that the Cherokee Nation was a
required party for purposes of Rule 19, that the Cherokee
Nation’s interests could not be adequately represented by the
Principal Chief, and that the case could not go forward. See
Vann v. Salazar, 2011 WL 4953030, at *3-6, 9 (D.D.C. 2011).
1
Federal Rule of Civil Procedure 19 provides in relevant part:
(a) PERSONS REQUIRED TO BE JOINED IF FEASIBLE.
(1) Required Party. A person who is subject to service of
process and whose joinder will not deprive the court of
subject-matter jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the
subject of the action and is so situated that disposing
of the action in the person’s absence may:
(i) as a practical matter impair or impede the
person’s ability to protect the interest; or
(ii) leave an existing party subject to a
substantial risk of incurring double, multiple, or
otherwise inconsistent obligations because of
the interest.
4
We reverse. Applying the precedents that permit suits
against government officials in their official capacities, we
conclude that this suit may proceed against the Principal
Chief in his official capacity, without the Cherokee Nation
itself as a party.
The Freedmen have sued the Principal Chief in his
official capacity under the doctrine of Ex parte Young, 209
U.S. 123. The Ex parte Young doctrine allows suits for
declaratory and injunctive relief against government officials
in their official capacities – notwithstanding the sovereign
immunity possessed by the government itself. The Ex parte
Young doctrine applies to Indian tribes as well. Cf. Oklahoma
Tax Commission, 498 U.S. at 514; see generally Larson, 337
U.S. at 689-92; RICHARD H. FALLON, JR., DANIEL J. MELTZER
& DAVID L. SHAPIRO, HART AND WECHSLER’S THE FEDERAL
COURTS AND THE FEDERAL SYSTEM 958-60 (5th ed. 2003).
The Ex parte Young doctrine is based on a “fiction” –
namely, that “when a federal court commands a state official
to do nothing more than refrain from violating federal law, he
is not the State for sovereign-immunity purposes.” Virginia
Office for Protection & Advocacy v. Stewart, 131 S. Ct. 1632,
1638 (2011); see Larson, 337 U.S. 682; Davis v. Gray, 83
U.S. 203 (1872); Osborn v. Bank of United States, 22 U.S.
738 (1824); FALLON ET AL., THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 958-60. The doctrine is called a fiction
because the suit in effect binds the government entity just as
would a suit against the government entity itself. In such
suits, the government in question stands behind the official
“as the real party in interest.” Davis, 83 U.S. at 220. Indeed,
an injunction entered against an officer in his official capacity
is binding on the officer’s successors. See Fed. R. Civ. P.
65(d); Acheson v. Albert, 195 F.2d 573, 576 n.9 (D.C. Cir.
1952) (“The judgment entered in the present case would no
5
doubt be res judicata on the law and facts as against the
Secretary’s successors in office.”); 11A CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2956 (2d. ed. 1995) (“A decree
binding a public official generally is valid against that
official’s successors in office.”).
As a practical matter, therefore, the Cherokee Nation and
the Principal Chief in his official capacity are one and the
same in an Ex parte Young suit for declaratory and injunctive
relief. As a result, the Principal Chief can adequately
represent the Cherokee Nation in this suit, meaning that the
Cherokee Nation itself is not a required party for purposes of
Rule 19. By contrast, if we accepted the Cherokee Nation’s
position, official-action suits against government officials
would have to be routinely dismissed, at least absent some
statutory exception to Rule 19, because the government entity
in question would be a required party yet would be immune
from suit and so could not be joined. But that is not how the
Ex parte Young doctrine and Rule 19 case law has developed.
Nor is there any basis for distinguishing this case
involving an American Indian tribe from a run-of-the-mill Ex
parte Young action. Here, the named defendant – the
Principal Chief – is the head of the executive branch of the
Cherokee Nation. See CHEROKEE CONST., art. VII, § 1 (“The
executive power shall be vested in a Principal Chief….”); id.
art. VII, § 9 (“The Principal Chief shall cause the laws of the
Cherokee Nation to be faithfully executed, and shall conduct
in person” all “communications and business of the Cherokee
Nation.”). The claim here is that the Principal Chief – and
through him, the sovereign tribe – is violating federal law.
The defense is that the Principal Chief – and hence the
sovereign tribe – is not violating federal law. This case
presents a typical Ex parte Young scenario.
6
Our analysis is consistent, moreover, with the precedents
of other courts of appeals. In line with the basic Ex parte
Young principles, the Ninth Circuit and Tenth Circuit have
similarly concluded that a tribe is not a required party under
Rule 19 in suits naming a tribal official in his official
capacity. In Salt River Project Agricultural Improvement and
Power District v. Lee, the Ninth Circuit ruled that Navajo
officials responsible for enforcing a challenged tribal law
“adequately represent the Navajo Nation’s interests.” 672
F.3d 1176, 1180 (9th Cir. 2012). The court added that there
was “no suggestion that the officials’ attempt to enforce the
statute here is antithetical to the tribe’s interests” and “no
reason to believe the Navajo official defendants cannot or will
not make any reasonable argument that the tribe would make
if it were a party.” Id. at 1180. In Kansas v. United States,
the Tenth Circuit reached a similar conclusion, noting that
“the potential for prejudice to the Miami Tribe is largely
nonexistent due to the presence in this suit of” the “tribal
officials.” 249 F.3d 1213, 1227 (10th Cir. 2001).
In light of our disposition, we need not reach the
Freedmen’s argument that the Cherokee Nation waived its
sovereign immunity by filing a related suit in Oklahoma. We
reverse the judgment of the District Court and remand for
further proceedings consistent with this opinion.
So ordered.