In a precedential opinion, the Ninth Circuit Court of Appeals recently chose to follow the lead of the Eleventh Circuit, holding that tribes do not waive sovereign immunity merely by removing a case to federal court. This decision provides clarity for tribes within the Ninth Circuit who face certain types of lawsuits filed in state court.
In Bodi v. Shingle Springs Band of Miwok Indians, the Shingle Spring Band owned and operated a full-service health clinic near Sacramento, Calif. The plaintiff-appellee was an ex-employee of the clinic, and had filed suit in California state court asserting claims under both the federal Family Medical Leave Act (FMLA)* and California law. The Tribe timely removed the action to federal district court and, once in federal court, moved to dismiss the lawsuit, arguing that the Tribe's sovereign immunity protected it from suit under the FMLA. The district court denied the Tribe's motion to dismiss, finding that the Tribe had unequivocally waived its immunity – and thus could be sued under the FMLA – by removing the action to federal court. Notably, the district court recognized that there was a split amongst the district courts within the Ninth Circuit on this issue, and in its written opinion expressed hope that the Tribe would “appeal [its] ruling so that a higher court may definitively resolve the issue.” The Tribe appealed the decision to the Ninth Circuit.
The Ninth Circuit opinion framed the question as "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." The three-judge panel noted that there are only two ways in which a tribe may lose its immunity from suit: either through Congressional abrogation of tribal immunity, or the tribe itself may waive immunity. But the panel noted that under "well settled" law, any waiver by the tribe must be "unequivocally expressed" and must "manifest the tribe's intent to surrender immunity in 'clear' and unmistakable terms." The panel joined the Eleventh Circuit in holding that "removal does not, standing alone, waive tribal immunity," further holding that it would "defy logic" to suggest that a tribe's "removal and immediate assertion of immunity" could constitute an express waiver of that same immunity.