Bodi v. Shingle Springs Band of Miwok Indians

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BETH A. BODI, No. 14-16121
Plaintiff-Appellee,
D.C. No.
v. 2:13-cv-01044-
LKK-CKD
SHINGLE SPRINGS BAND OF
MIWOK INDIANS; SHINGLE
SPRINGS TRIBAL HEALTH; OPINION
TIMOTHY ADAMS, as current
Chairperson of the Shingle
Springs Tribal Health Board,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted May 12, 2016
San Francisco, California
Filed August 8, 2016
2 BODI V. SHINGLE SPRINGS BAND OF MIWOK
Before: M. Margaret McKeown, Robert D. Sack *,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Friedland
SUMMARY **
Indian Law
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.
*
The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BODI V. SHINGLE SPRINGS BAND OF MIWOK 3
COUNSEL
Christopher F. Wohl (argued), Palmer Kazanjian Wohl
Hodson LLP, Sacramento, California; Paula Yost, Sandra R.
McCandless and Ian Barker, Dentons US LLP, San
Francisco, California; for Defendants-Appellants.
David Nied (argued) and Wendy L. Hillger, Ad Astra Law
Group, LLP, San Francisco, California, for Plaintiff-
Appellee.
Richard D. Monkman, Harry R. Sachse and Peng Wu;
Sonosky, Chambers, Sachse, Miller & Munson, LLP,
Juneau, Alaska; for Amici Curiae Arctic Slope Native
Association, LTD and Puyallup Tribe.
OPINION
FRIEDLAND, Circuit Judge:
This appeal requires us to decide whether a federally
recognized Indian tribe waives its sovereign immunity from
suit by exercising its right to remove to federal court a case
filed against it in state court. This question has divided the
district courts, and it has been reached by only one of our
sister circuits, which held that removal does not, standing
alone, waive tribal immunity. See Contour Spa at the Hard
Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 1206–
08 (11th Cir. 2012). We now follow the lead of the Eleventh
Circuit and hold that the act of removal does not express the
clear and unequivocal waiver that is required for a tribe to
relinquish its immunity from suit. Because the district court
held otherwise, we reverse.
4 BODI V. SHINGLE SPRINGS BAND OF MIWOK
I.
The Shingle Springs Band of Miwok Indians (the
“Tribe”) is a federally-recognized Indian tribe located on the
Shingle Springs Rancheria in California. 1 Since about 1995,
the Tribe has owned and operated a full-service health clinic.
The clinic operates under the name Shingle Springs Tribal
Health Program (the “Health Program”) and is run by the
Shingle Springs Tribal Health Board (the “Health Board”),
whose nine directors are all members of the Tribe. Among
its duties, the Health Board is responsible for the hiring and
termination of the clinic Executive Director.
Plaintiff-Appellee Beth A. Bodi is a member of the
Tribe. Bodi began working at the clinic in 1997 and became
its Executive Director in November 2001. In August 2012,
after she attempted to take job-protected leave under the
Family Medical Leave Act (the “FMLA”), 29 U.S.C.
§§ 2601–2654, on account of successive severe health
conditions, the Health Board terminated Bodi’s employment
by way of a letter from its Chairperson. The Tribe later
rehired Bodi as Executive Assistant to the Tribal Chairman,
but she was terminated from that position in April 2013 after
sending a communication to tribal officials complaining
about her earlier termination and noting her willingness to
seek redress in state court.
1
The district court decided Defendants’ motion to dismiss with respect
to the waiver-by-removal issue based solely on the pleadings, and we
therefore “take as true the allegations of the complaint” for purposes of
appeal. Tobar v. United States, 639 F.3d 1191, 1194 (9th Cir. 2011).
The facts presented here are taken from the operative complaint or are
otherwise uncontested.
BODI V. SHINGLE SPRINGS BAND OF MIWOK 5
Bodi filed suit in California state court, asserting claims
against the Tribe under the FMLA and California law. The
Tribe timely removed the action to the United States District
Court for the Eastern District of California on the basis of
that court’s federal question jurisdiction over the FMLA
claim and supplemental jurisdiction over the state law
claims. One week later, the Tribe moved to dismiss the
lawsuit under Federal Rule of Civil Procedure 12(b)(1) for
lack of subject matter jurisdiction, arguing that the Tribe’s
sovereign immunity protected it from suit. In lieu of a
response, Bodi amended her complaint, adding the Health
Program, the Health Board, and the Health Board’s
Chairperson 2 as defendants.
Defendants filed a renewed motion to dismiss based on
tribal immunity. 3 The district court denied Defendants’
motion on the ground that the Tribe had unequivocally
waived its immunity by removing the action to federal court.
Because it found waiver based on removal, the court did not
reach additional grounds for loss of tribal immunity pressed
by Bodi, including that Congress abrogated tribal immunity
through the FMLA and that the Tribe had waived its
immunity through Tribal Council resolutions to obtain
federal funding to build the health clinic. The court also
declined to reach Defendants’ additional defense that the
2
The operative complaint makes clear that the Chairperson is sued in
an official capacity only.
3
The parties use terms such as “tribal immunity,” “tribal sovereign
immunity,” and “the Tribe’s sovereign immunity” interchangeably in
their briefing, as do we herein.
6 BODI V. SHINGLE SPRINGS BAND OF MIWOK
Tribe’s exclusive right of self-governance barred Bodi’s
claims for injunctive relief under the FMLA. 4
Acknowledging that district courts in this circuit were
split on the waiver-by-removal question, 5 the district court
expressed its hope that Defendants would “appeal [its] ruling
so that a higher court may definitively resolve the issue.”
See Bodi v. Shingle Springs Band of Miwok Indians, 19 F.
Supp. 3d 978, 987 (E.D. Cal. 2014). Defendants did so, and
because the “denial of a claim of tribal sovereign immunity
is immediately appealable” even absent a final judgment,
Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085,
1091 (9th Cir. 2007), that issue is now squarely before us.
II.
We review de novo a district court’s decision on a
motion to dismiss for lack of subject matter jurisdiction. See
Miller v. Wright, 705 F.3d 919, 923 (9th Cir. 2013). We
4
The district court did, however, dismiss all claims against the Health
Program because Bodi failed to controvert evidence that the entity had
no legal existence independent of the Tribe and the Health Board. That
ruling has not been appealed.
5
Compare Ingrassia v. Chicken Ranch Bingo & Casino, 676 F. Supp.
2d 953, 961 (E.D. Cal. 2009) (holding that “removal to federal court does
not waive tribal sovereign immunity”), and Sonoma Falls Developers,
LLC v. Dry Creek Rancheria Band of Pomo Indians of Cal., No. C-01-
4125 VRW, 2002 WL 34727095, at *6–7 (N.D. Cal. Dec. 26, 2002)
(same), with State Eng’r of the State of Nev. v. S. Fork Band of Te-Moak
Tribe of W. Shoshone Indians of Nev., 66 F. Supp. 2d 1163, 1173 (D.
Nev. 1999) (holding that the tribal defendant’s removal of the case
“amount[ed] to a clear and unequivocal waiver of immunity” in federal
court), vacated on reconsideration on other grounds, 114 F. Supp. 2d
1046 (D. Nev. 2000).
BODI V. SHINGLE SPRINGS BAND OF MIWOK 7
likewise review de novo whether an Indian tribe has waived
its immunity from suit. See id.; Demontiney v. United States
ex rel. Dep’t of Interior, Bureau of Indian Affairs, 255 F.3d
801, 805 (9th Cir. 2001).
III.
The gravamen of this appeal is the question whether a
tribe’s removal of a case from state to federal court
constitutes, in and of itself, a valid waiver of its immunity
from suit. 6 The Eleventh Circuit, the only one of our sister
circuits to have reached this issue, held that it does not.
Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla.,
692 F.3d 1200, 1206–08 (11th Cir. 2012). Application of
settled tribal immunity principles and consideration of the
fairness and administrative concerns at stake lead us to the
same conclusion reached by the Eleventh Circuit: that a
tribe’s exercise of its right to remove a case to federal court,
standing alone, does not effect a waiver of its immunity from
suit.
A.
The doctrine of tribal sovereign immunity derives from
the status of Indian tribes as “separate sovereigns pre-
existing the Constitution.” Michigan v. Bay Mills Indian
Cmty., 134 S. Ct. 2024, 2030 (2014) (quoting Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 56 (1978)); see also Santa
Clara Pueblo, 436 U.S. at 55 (“Indian tribes are ‘distinct,
independent political communities, retaining their original
natural rights’ in matters of local self-government.” (quoting
6
The parties agree that the immunity defenses of the Health Board and
its Chairperson are derivative of the Tribe’s immunity so that, if the Tribe
waived its immunity, they must be found to have waived theirs as well.
8 BODI V. SHINGLE SPRINGS BAND OF MIWOK
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832),
abrogation on other grounds recognized by Nevada v. Hicks,
533 U.S. 353, 361–62 (2001))). “Among the core aspects of
sovereignty that tribes possess . . . is the ‘common-law
immunity from suit traditionally enjoyed by sovereign
powers.’” Bay Mills, 134 S. Ct. at 2030 (quoting Santa
Clara Pueblo, 436 U.S. at 58). The Supreme Court has
characterized that immunity as “a necessary corollary to
Indian sovereignty and self-governance,” id. (quoting Three
Affiliated Tribes of Fort Berthold Reservation v. World
Eng’g, P.C., 476 U.S. 877, 890 (1986)), and we employ a
“strong presumption against [its] waiver,” Demontiney,
255 F.3d at 811.
There are only two ways in which a tribe may lose its
immunity from suit. Congress may abrogate tribal
immunity, because, “[a]s dependents, the tribes are subject
to plenary control by Congress.” Bay Mills, 134 S. Ct. at
2030. Or, of relevance to this appeal, a tribe may itself waive
immunity. Okla. Tax Comm’n v. Citizen Band Potawatomi
Indian Tribe (Potawatomi), 498 U.S. 505, 509 (1991). It is
well settled that “a waiver of [tribal] sovereign immunity
‘cannot be implied but must be unequivocally expressed.’”
Santa Clara Pueblo, 436 U.S. at 58 (quoting United States
v. Testan, 424 U.S. 392, 399 (1976)). 7 That expression must
7
Although Santa Clara Pueblo was addressing congressional
abrogation of immunity, see 436 U.S. at 58–59, we have made clear that
its proscription of waiver-by-implication also applies to expressions by
the tribes themselves, see, e.g., Allen v. Gold Country Casino, 464 F.3d
1044, 1047 (9th Cir. 2006) (reasoning that a tribe’s statements in an
employment application “[a]t most . . . might imply a willingness to
submit to federal lawsuits, but waivers of tribal sovereign immunity may
not be implied”).
BODI V. SHINGLE SPRINGS BAND OF MIWOK 9
also manifest the tribe’s intent to surrender immunity in
“clear” and unmistakable terms. C & L Enters., Inc. v.
Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 418
(2001) (quoting Potawatomi, 498 U.S. at 509). 8 Thus,
absent a clear and unequivocally expressed waiver by a tribe
or congressional abrogation, “[s]uits against Indian tribes are
. . . barred.” Potawatomi, 498 U.S. at 509; see also Bay
Mills, 134 S. Ct. at 2030–31 (“[W]e have time and again
treated the ‘doctrine of tribal immunity [as] settled law’ and
dismissed any suit against a tribe absent congressional
authorization (or a waiver).” (second alteration in original)
(quoting Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S.
751, 756 (1998))).
B.
The question here is thus whether, by removing this case
from state to federal court, the Tribe clearly and
unequivocally expressed its intent to waive its immunity
from suit. We hold that it did not.
1.
8
C & L Enterprises’s clarification that a tribe need not use any
particular words to effect a clear waiver did not alter the settled principle
that the waiver must be explicit and cannot be implied. See 532 U.S. at
420 (rejecting the view that a waiver of tribal immunity “is implicit rather
than explicit only if [the] waiver . . . use[s] the words ‘sovereign
immunity’” (quoting Sokaogon Gaming Enter. Corp. v. Tushie-
Montgomery Assocs., Inc., 86 F.3d 656, 659–60 (7th Cir. 1996))); see
also Demontiney, 255 F.3d at 812–13 & n.5 (holding that provisions in
a contract “establish[ed] only the Tribe’s willingness to face suit in tribal
court and not an explicit waiver of tribal immunity” like that in C & L
Enterprises (emphasis added) (internal quotation marks omitted)).
10 BODI V. SHINGLE SPRINGS BAND OF MIWOK
It is undisputed that the Tribe did not expressly state its
intent to waive its immunity when it removed the case; to the
contrary, it asserted its immunity defense promptly upon
removal to federal court and neither it, nor any Defendant,
ever voiced an intent to litigate on the merits. 9 The only way
in which removal can constitute a waiver, then, is if the
voluntary act of removal is tantamount to an express waiver
of tribal immunity. Bodi urges us to hold that it is, but we
are not persuaded.
By filing a lawsuit, a tribe may of course “consent[] to
the court’s jurisdiction to determine the claims brought” and
thereby agree to be bound by the court’s decision on those
claims. Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1245
(8th Cir. 1995) (quoting F. Cohen, Handbook of Federal
Indian Law 324 (1982)); see also McClendon v. United
States, 885 F.2d 627, 630 (9th Cir. 1989) (“Initiation of a
lawsuit necessarily establishes consent to the court’s
adjudication of the merits of that particular controversy.”).
By consenting to the court’s jurisdiction to determine its own
claims, however, a tribe does not automatically waive its
immunity as to claims that could be asserted against it, even
as to “related matters . . . aris[ing] from the same set of
underlying facts.” McClendon, 885 F.2d at 630. The
Supreme Court has thus emphasized that a tribe’s initiation
of a lawsuit for injunctive relief does not waive its immunity
9
Bodi has not argued that any language in the Notice of Removal
clearly expresses an intent to waive immunity, and we find no such
language. The Notice of Removal merely expressed that the Tribe had a
right to remove under 28 U.S.C. § 1441 and intended to exercise it. If
the Notice had included a clear and unequivocal statement that the Tribe
was waiving its immunity, such a statement may well have been
dispositive of our analysis. Because the Notice in this case contained no
such statement, Bodi argues that it is instead the act of removal that
clearly expresses the Tribe’s intent to waive its immunity.
BODI V. SHINGLE SPRINGS BAND OF MIWOK 11
to counterclaims, including compulsory ones. Potawatomi,
498 U.S. at 509; see also United States v. U.S. Fid. & Guar.
Co., 309 U.S. 506, 513 (1940) (“Possessing [] immunity
from direct suit, we are of the opinion [that a tribe] possesses
a similar immunity from cross-suits.”); McClendon,
885 F.2d at 630 (“[W]e consistently have held that a tribe’s
participation in litigation does not constitute consent to
counterclaims asserted by the defendants in those actions.”).
And we have held that a tribe’s voluntary participation in
administrative proceedings does not waive its immunity in a
subsequent court action filed by another party seeking
review of the agency proceedings. See Kescoli v. Babbitt,
101 F.3d 1304, 1310 (9th Cir. 1996) (holding that tribes “did
not waive their immunity by intervening
in . . . administrative proceedings” because “[a]ny waiver
must be unequivocal and may not be implied”); Quileute
Indian Tribe v. Babbitt, 18 F.3d 1456, 1460 (9th Cir. 1994)
(holding that tribe’s “voluntary participation” in
administrative proceedings “is not the express and
unequivocal waiver of tribal immunity that we require in this
circuit”).
Like filing a complaint, which invites the court to resolve
a specific issue but does not waive immunity as to other
issues, the Tribe’s removal and immediate assertion of
immunity invoked the court’s jurisdiction for the limited
purpose of resolving the Tribe’s “quasi-jurisdictional”
immunity defense. Pistor v. Garcia, 791 F.3d 1104, 1110
(9th Cir. 2015) (alteration omitted) (quoting Pan Am. Co. v.
Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir.
1989)). The Tribe’s action is in this way analogous to a civil
litigant’s filing a motion to dismiss for lack of subject matter
jurisdiction. The litigant thereby invites the court to exercise
that jurisdiction required to determine its own jurisdiction.
See United States v. Ruiz, 536 U.S. 622, 628 (2002) (“[I]t is
12 BODI V. SHINGLE SPRINGS BAND OF MIWOK
familiar law that a federal court always has jurisdiction to
determine its own jurisdiction.”). It would defy logic to
suggest that, in doing so, the Tribe clearly manifested its
intent to waive the very immunity defense that it asserts.
If anything is to be inferred from the Tribe’s removal and
immediate assertion of immunity, it is that the Tribe
preferred to have its immunity defense heard in a federal
forum, not that it intended to waive its immunity and to have
the claims filed against it decided on their merits. But even
if it were possible to read into the act of removal some intent
by the Tribe to relinquish its immunity to suit, we could not
uphold a waiver on that basis because “waivers of tribal
sovereign immunity may not be implied.” Allen, 464 F.3d
at 1047.
2.
To resist this result, Bodi urges us to extend 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. The Eleventh Circuit in Contour Spa rejected a similar
attempt to extend Lapides from the Eleventh Amendment
context to the tribal immunity context, 692 F.3d at 1204–08,
and we do as well.
In Lapides, a professor brought suit in Georgia state
court against his employer, the Georgia state university
system, and various university officials, alleging violations
of state and federal law based on the placement of allegations
of sexual harassment in his personnel files. 535 U.S. at 616.
The Georgia legislature had passed a statute expressly
waiving the State’s sovereign immunity to state law claims
BODI V. SHINGLE SPRINGS BAND OF MIWOK 13
filed in state court. See id.; Ga. Code Ann. § 50-21-23.
Georgia removed the case to federal court based on the
federal claim, then promptly moved to dismiss the entire suit
on the basis of its Eleventh Amendment immunity. Lapides,
535 U.S. at 616.
At the outset, the Supreme Court determined that the sole
federal claim, which sought monetary damages under
42 U.S.C. § 1983, was invalid because the State was “not a
‘person’ against whom a § 1983 claim for money damages
might be asserted.” Id. at 617. As a consequence, the
Supreme Court began its opinion by carefully “limit[ing]”
its decision to the peculiar procedural circumstances of that
case—that is, “to the context of state-law claims, in respect
to which the State has explicitly waived immunity from
state-court proceedings.” Id.; see also id. at 617–18
(emphasizing that the Court did not “need [to] address the
scope of waiver by removal in a situation where the State’s
underlying sovereign immunity from suit has not been
waived or abrogated in state court”).
After expressing this limitation, the Court used some
more general language in discussing the consequences of the
State’s decision to remove the case. The Court reasoned that
“[i]t would seem anomalous or inconsistent for a State both
(1) to invoke federal jurisdiction, thereby contending that the
‘Judicial power of the United States’ extends to the case at
hand, and (2) to claim Eleventh Amendment immunity,
thereby denying that the ‘Judicial Power of the United
States’ extends to the case at hand.” Id. at 619. Observing
that it had previously held that a “State’s voluntary
appearance in federal court amounted to a waiver of its
Eleventh Amendment immunity,” id. (citing Clark v.
Barnard, 108 U.S. 436, 447 (1883)), the Court reasoned that
a State similarly expresses its intent to “voluntarily invoke[]
14 BODI V. SHINGLE SPRINGS BAND OF MIWOK
the federal court’s jurisdiction” by “voluntarily agree[ing] to
remove the case to federal court.” Id. at 620. Unable to
discern “something special about removal or about this
case,” the Court concluded that the “general legal principle
requiring waiver” when a State voluntarily invokes judicial
authority “ought to apply.” 10 Id.
As a result of the tension between Lapides’s express
limitations on its own holding and this general language,
courts are divided on whether Lapides indicates that a State
defendant’s removal to federal court waives its Eleventh
Amendment immunity if the State has not waived its
immunity to suit in state court. See Contour Spa, 692 F.3d
at 1205–06 (citing cases). 11 Here, the Tribe—unlike the
10
The Supreme Court rejected the State’s argument that the rule was
changed by Eleventh Amendment cases that “have required a clear
indication of the State’s intent to waive its immunity” because the State’s
“act—removal—is clear.” Lapides, 535 U.S. at 620 (citation omitted).
11
Some circuits have opted for a narrow construction, “tak[ing] the
Supreme Court at its word and regard[ing] the holding in Lapides as
limited to the ‘context of state-law claims, in respect to which the State
has explicitly waived immunity from state-court proceedings.’”
Bergemann v. R.I. Dep’t of Envtl. Mgmt., 665 F.3d 336, 341 (1st Cir.
2011) (quoting Lapides, 535 U.S. at 617). Others have read Lapides to
“state a more general rule.” Bd. of Regents of Univ. of Wis. Sys. v. Phx.
Int’l Software, Inc., 653 F.3d 448, 460–71 (7th Cir. 2011) (relying
largely on Lapides to hold that the State plaintiff waived its immunity to
counterclaims filed against it in federal court); see also Meyers ex rel.
Benzing v. Texas, 410 F.3d 236, 242 (5th Cir. 2005) (discerning “no
evident basis in law or judicial administration for severely limiting
[Lapides’s] general principles . . . to a small sub-set of federal cases[,]
including only state-law claims in respect to which a state has waived
immunity therefrom in state court”); Estes v. Wyo. Dep’t of Transp.,
302 F.3d 1200, 1205 n.1, 1206 (10th Cir. 2002) (holding that State
defendant waived Eleventh Amendment immunity to a federal claim by
removing to federal court). Still others have held that, by removing a
BODI V. SHINGLE SPRINGS BAND OF MIWOK 15
State of Georgia in Lapides—asserts that it retains its
immunity from suit in state court as well as federal court. 12
As the Eleventh Circuit observed in Contour Spa, we
need not resolve here the question how broadly to read
Lapides with respect to a State defendant’s removal of a suit
to federal court, because we hold that Lapides’s waiver-
through-removal reasoning does not apply at all in the
context of tribal immunity. Cf. Contour Spa, 692 F.3d at
case, a State defendant does not waive its general common law immunity
from suit, regardless of whether it would thereby waive its Eleventh
Amendment immunity under Lapides. See, e.g., Beaulieu v. Vermont,
807 F.3d 478, 483–89 (2d Cir. 2015).
In Embury v. King, 361 F.3d 562 (9th Cir. 2004), we extended
Lapides in a limited fashion to hold that a State defendant’s removal
waived its immunity to federal as well as state law claims, including
those claims pled in an amended complaint after removal, id. at 564–65.
Although, in Embury, we characterized Lapides broadly as setting forth
a “straightforward, easy-to-administer rule” that “[r]emoval waives
Eleventh Amendment immunity,” id. at 566, we did not explicitly
consider whether it applied when a State defendant retained its immunity
from suit in state court, as it appears the State defendants there had not
done. See id. at 564 (noting that the State defendants had “concede[d]
that, under Lapides, they [were] stuck with federal jurisdiction over the
state law claims”); see also Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-
Jolly, 572 F.3d 644, 662–63 (9th Cir. 2009) (“Under Embury, the
Director, having waived state court immunity, also waived federal court
sovereign immunity by voluntarily removing the action.”), vacated on
other grounds sub. nom Douglas v. Indep. Living Ctr. of S. Cal., Inc.,
132 S. Ct. 1204 (2012). We have since observed that the question
whether Lapides’s rule applies when a State defendant has not consented
to suit in its own courts remains unresolved in this circuit. See Indep.
Living Ctr., 572 F.3d at 662 n.20.
12
As discussed below, the Tribe conceded at oral argument that it has
waived its immunity from suit in relevant respects in its own tribal court,
but Bodi chose not to file suit in that forum.
16 BODI V. SHINGLE SPRINGS BAND OF MIWOK
1206 (declining to “enter into this conflict . . . over how best
to read Lapides with respect to a state’s removal of a case”
because “an Indian tribe’s sovereign immunity is not the
same thing as a state’s Eleventh Amendment immunity, and
Lapides in no way addressed tribal sovereign immunity”).
Tribal immunity is not synonymous with a State’s
Eleventh Amendment immunity, and parallels between the
two are of limited utility. See, e.g., Three Affiliated Tribes,
476 U.S. at 890 (“Of course, because of the peculiar ‘quasi-
sovereign’ status of the Indian tribes, the Tribe’s immunity
is not congruent with that which the Federal Government, or
the States, enjoy.”). Importantly, States can waive their
Eleventh Amendment immunity through litigation conduct
that would not effect a waiver of tribal sovereign immunity.
For example, a State’s filing of a claim may waive its
Eleventh Amendment immunity to counterclaims that arise
from the same transaction or occurrence, at least in the
bankruptcy context. See In re Lazar, 237 F.3d 967, 978 (9th
Cir. 2001) (holding that “when a state . . . files a proof of
claim in a bankruptcy proceeding, the state waives its
Eleventh Amendment immunity with regard to the
bankruptcy estate’s claims that arise from the same
transaction or occurrence as the state’s claim”). A tribe, in
contrast, does not waive its immunity to a compulsory
counterclaim by voluntarily filing suit. Potawatomi,
498 U.S. at 509–10. In addition, while waiver cannot be
implied with respect to tribal immunity, it can be implied
under certain circumstances with respect to States’ Eleventh
Amendment immunity. See Aholelei v. Dep’t of Pub. Safety,
488 F.3d 1144, 1147 (9th Cir. 2007) (“Express waiver is not
required; a state ‘waive[s] its Eleventh Amendment
immunity by conduct that is incompatible with an intent to
preserve that immunity.’” (first quoting In re Bliemeister,
BODI V. SHINGLE SPRINGS BAND OF MIWOK 17
296 F.3d 858, 861 (9th Cir. 2002); then quoting Hill v. Blind
Indus. & Servs. of Md., 179 F.3d 754, 758 (9th Cir. 1999))).
Indeed, recognizing the important distinctions between
the two forms of immunity, Lapides itself suggested that its
holding was specific to the Eleventh Amendment context.
The Supreme Court explained of cases about federal
immunity and tribal immunity that
[t]hose cases . . . do not involve the Eleventh
Amendment—a specific text with a history
that focuses upon the State’s sovereignty vis-
á-vis the Federal Government. And each
[such] case involves special circumstances
not at issue here, for example, an effort by a
sovereign (i.e., the United States) to seek the
protection of its own courts (i.e., the federal
courts), or an effort to protect an Indian tribe.
Lapides, 535 U.S. at 623. These comments from the
Supreme Court indicate that “waiver rules applicable to
states may not apply in the same way to Indian tribes.”
Contour Spa, 692 F.3d at 1208. Like the Eleventh Circuit,
we decline to interpret Lapides as extending beyond States’
Eleventh Amendment immunity.
Comparisons to foreign sovereign immunity also do not
help Bodi. Bodi argues that the differences between tribal
immunity and the immunity enjoyed by foreign nations
suggest that a tribe waives its immunity by removing to
federal court. In refusing to extend Lapides to the tribal
immunity context, the Eleventh Circuit in Contour Spa
reasoned in part that tribal sovereign immunity is instead
“more analogous to foreign sovereign immunity,” and that
“[t]he significance of the comparison inheres in the fact that
foreign sovereigns do not waive their sovereign immunity by
18 BODI V. SHINGLE SPRINGS BAND OF MIWOK
removing a case to federal court.” Id. at 1206 (citing
28 U.S.C. § 1441(d), Russell Corp. v. Am. Home Assurance
Co., 264 F.3d 1040, 1047 n.4 (11th Cir. 2001), and
Rodriguez v. Transnave Inc., 8 F.3d 284, 289 (5th Cir. 1993)
(holding that removal “by a foreign sovereign is explicitly
authorized by 28 U.S.C. 1441(d) and clearly cannot
constitute waiver”)). Bodi asserts that this comparison
should cut the other way because Congress provided foreign
states an absolute statutory right of removal through the
Foreign Sovereign Immunities Act of 1976, 28 U.S.C.
§ 1441(d), but Congress created no such express removal
right for tribes. Specifically, Bodi points out that foreign
states have a statutory right to remove “[a]ny civil action”
brought against them to federal court, id., while tribes only
have the same right afforded to all other litigants to remove
a case filed against them to federal court based on diversity
or federal question jurisdiction, id. § 1441(a).
This distinction misconceives tribal immunity
principles. Congress, of course, need not affirmatively
preserve tribal immunity; rather “[a]s separate sovereigns
pre-existing the Constitution,” Indian tribes possess
immunity from suit unless expressly abrogated or waived.
Santa Clara Pueblo, 436 U.S. at 56–58. Nothing in the
removal statute, 28 U.S.C. § 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. Indeed, the
dedicated removal provision for foreign states, 28 U.S.C.
§ 1441(d), like the general removal provision for all other
parties, 28 U.S.C. § 1441(a), says nothing explicit about loss
or preservation of immunity. Our circuit has not yet reached
the question whether foreign states waive their sovereign
immunity through removal and what, if any, bearing the
BODI V. SHINGLE SPRINGS BAND OF MIWOK 19
dedicated removal provision has on that question, so Bodi’s
analogies to foreign sovereign questions get her nowhere. 13
We are unable to discern any unequivocal expression of
the Tribe’s intent to waive its immunity in its assertion of its
statutory removal right. Ultimately, the absence of such an
expression is dispositive of the tribal waiver-by-removal
question.
C.
We are further persuaded that this result is correct
because of the likely unfairness and administrative
challenges that a contrary holding would entail. In
concluding that the State of Georgia had waived its
immunity by removal, Lapides was motivated by the desire
13
The dedicated removal provision was enacted as part of the Foreign
Sovereign Immunities Act, Pub. L. No. 94-583, 90 Stat. 2891 (1976),
through which Congress also narrowed foreign sovereign immunity by
providing for waiver by implication, see 28 U.S.C. § 1605(a)(1)
(providing that a foreign state is not immune to federal or state court
jurisdiction if it “has waived its immunity either explicitly or by
implication”); see also Corporacion Mexicana de Servicios Maritimios,
S.A. de C.V. v. M/T Respect, 89 F.3d 650, 655 (9th Cir. 1996) (explaining
that this “waiver exception is narrowly construed”). Those of our sister
circuits that have addressed waiver-by-removal for foreign sovereigns
were tasked with determining whether a foreign state waives its
immunity by implication when it exercises its removal right. See
Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279,
1291 n.24 (11th Cir. 1999) (stating that the foreign state defendant’s
“participation in the litigation, such as removing the case to federal court,
. . . did not constitute an implicit waiver”); Rodriguez, 8 F.3d at 287
(explaining that the plaintiff “ha[d] chosen to rely solely on the implied
waiver exception”). Tribes, as we have explained, do not waive their
immunity by implication, so the foreign sovereign removal analogy is
inapposite.
20 BODI V. SHINGLE SPRINGS BAND OF MIWOK
to avoid “inconsistency, anomaly, and unfairness” and to
prevent the “selective use of ‘immunity’ to achieve litigation
advantages.” 535 U.S. at 620. As Contour Spa recognized,
these concerns cut the other way in the tribal immunity
context. 692 F.3d at 1207–08.
First, we join the Eleventh Circuit in its concern that it
would be unfair to put tribes to a choice between asserting
their right to remove to federal court federal claims filed
against them and asserting their tribal immunity defense.
See Contour Spa, 692 F.3d at 1207. If a tribe had to litigate
its immunity defense in state court to avoid waiver through
removal, and that immunity defense proved to be completely
or partially unsuccessful, the tribe would almost certainly
have missed the statutory 30-day deadline to remove the case
to federal court. See 28 U.S.C. § 1446(b). 14 As a result, a
tribe sued in state court on a federal claim to which it
possesses a colorable immunity defense
would face a Morton’s Fork: remove the
federal claim to federal court and waive
immunity or litigate the federal claim in state
court regardless of its federal nature. Either
way, the [tribe] would be compelled to
relinquish a right: either its right to assert
14
We express no opinion on whether a tribe would waive its removal
right by first moving to dismiss on the basis of sovereign immunity in
state court. Resolution Tr. Corp. v. Bayside Developers, 43 F.3d 1230,
1240 (9th Cir. 1995) (“A party, generally the defendant, may waive the
right to remove to federal court where, after it is apparent that the case is
removable, the defendant takes actions in state court that manifest his or
her intent to have the matter adjudicated there, and to abandon his or her
right to a federal forum.”).
BODI V. SHINGLE SPRINGS BAND OF MIWOK 21
immunity from suit or its “right to a federal
forum.” 15
Bergemann, 665 F.3d at 342 (quoting Martin v. Franklin
Capital Corp., 546 U.S. 132, 140 (2005)). The Eleventh
Circuit could find “no sound basis in law or logic for forcing
an Indian tribe to make this choice” between asserting its
removal right and its sovereign immunity defense, Contour
Spa, 692 F.3d at 1207, and we cannot either.
Also problematic is the race to the courthouse that Bodi’s
position on tribal waiver-by-removal would likely inspire.
There are reasons why a tribe may prefer to litigate in federal
court. “[T]ribal immunity ‘is a matter of federal law,” Bay
Mills, 134 S. Ct. at 2031 (quoting Kiowa Tribe, 523 U.S. at
756), and, as such, tribes may wish to avail themselves, when
possible, 16 of the “experience, solicitude, and hope of
uniformity that a federal forum offers on [such] federal
issues,” Grable & Sons Metal Prods., Inc. v. Darue Eng’g &
Mfg., 545 U.S. 308, 312 (2005) (discussing removability of
claims “implicat[ing] significant federal issues”); see
Contour Spa, 692 F.3d at 1207 (recognizing that tribes “have
15
This concern did not exist in Lapides because the State had already
waived its immunity in state court. The Second Circuit in Beaulieu and
the First Circuit in Bergemann refused to extend Lapides to situations in
which the State defendants remained immune in state court, in part
because of the unfairness of forcing States to choose between asserting
their removal right and asserting their immunity defense. See Beaulieu,
807 F.3d at 486–87; Bergemann, 665 F.3d at 342–43.
16
A tribal immunity defense does not provide an independent basis for
federal jurisdiction. See Okla. Tax Comm’n v. Graham, 489 U.S. 838,
841 (1989) (per curiam). The Tribe in this case was instead able to
access a federal forum to litigate its immunity defense because Bodi’s
FMLA claim provided for original federal jurisdiction.
22 BODI V. SHINGLE SPRINGS BAND OF MIWOK
an interest in a uniform body of federal law in [the] area” of
tribal immunity). In addition, state courts have long been at
least perceived as “inhospitable to Indian rights.” Arizona v.
San Carlos Apache Tribe, 463 U.S. 545, 566 (1983).
Faced with losing the opportunity to have their immunity
defenses to federal claims heard in federal court if they were
sued in state court, tribes would be strongly incentivized to
file an affirmative suit for declaratory or injunctive relief in
federal court in order to preserve their ability to assert their
federal immunity defense in that forum to any counterclaim
for damages. This is because, as indicated above, a tribe
does not waive its immunity to related—and even
compulsory—counterclaims by filing a suit for injunctive or
declaratory relief. See Potawatomi, 498 U.S. at 509. Thus,
for instance, in this case, once Bodi threatened to sue,
Defendants would have been incentivized to rush to the
federal courthouse doors to file a suit for declaratory relief
that the FMLA does not apply to the instant dispute, so that
the Tribe could then assert in that forum its federal immunity
defense to any counterclaim for damages filed by Bodi. In
resolving a different jurisdictional dispute involving tribal
rights, the Supreme Court was swayed by the overriding
need to avoid such “wasteful” litigation and an “unseemly
and destructive race to see which forum can resolve the same
issues first.” San Carlos Apache Tribe, 463 U.S. at 567.
That concern militates against recognizing waiver-by-
removal here.
Finally, we note that our holding does not leave plaintiffs
like Bodi without a forum for redress. Defendants conceded
at oral argument that, like the State of Georgia in Lapides,
the Tribe would likely have been amenable to Bodi’s suit in
BODI V. SHINGLE SPRINGS BAND OF MIWOK 23
its own court system—here, Shingle Springs Tribal Court.17
Cf. Shingle Springs Tribal Court Ordinance, art. II, ch. 4,
§ 1(b) (2013) (setting forth the Tribe’s express waiver of
sovereign immunity in tribal court for various purposes,
including labor relations); William Wood, It Wasn’t an
Accident: The Tribal Sovereign Immunity Story, 62 Am. U.
L. Rev. 1587, 1666 (2013) (recognizing that “many (though
not all) Indian tribes make tribal court remedies available for
claims against their governments”); Catherine T. Struve,
Tribal Immunity and Tribal Courts, 36 Ariz. St. L.J. 137,
137, 155–61 (2004) (concluding based on “a survey [of]
caselaw and constitutional and statutory provisions from
selected tribes . . . that many Indian nations currently provide
significant remedies, in tribal court, for claims alleging
misconduct by tribal governments”).
IV.
We join the Eleventh Circuit in holding that an Indian
tribe’s removal of a case from state to federal court does not,
in and of itself, effect a waiver of its tribal immunity. We
therefore reverse the district court’s contrary holding. We
leave it to the district court to address on remand any
remaining immunity issues in this case, such as whether
Congress abrogated tribal immunity through the FMLA,
whether the Tribe explicitly waived its immunity through
some means other than removal, and whether the Tribe’s
immunity, if intact, protects the Health Board and the Health
Board’s Chairperson. If the tribal immunity defense is not
dispositive as to all Defendants, the district court also should
17
Defendants expressed no position on whether Bodi could still bring
her claims in tribal court or whether statute-of-limitations hurdles may
now exist, and we do not either.
24 BODI V. SHINGLE SPRINGS BAND OF MIWOK
address on its merits Defendants’ separate defense that the
FMLA is not applicable to the dispute at hand.
REVERSED and REMANDED.