The Ninth Circuit Court of Appeals and the New Mexico Supreme Court recently issued opinions which reject arguments to evade the defense of sovereign immunity.
Ninth Circuit: A claim against a sovereign entity seeking non-monetary relief is barred by sovereign immunity.
The simpler issue, at least to explain, arose in United States v. State of Washington,1 which relates to the seminal 1974 “Boldt ”2 decision, in which the United States District Court for the Western District of Washington outlined the contours of Indian Treaty fishing rights,3 which generally include access to Treaty-era fishing locations, and a right to a fair catch of the available fish. Relying on the Boldt decision, the Ninth Circuit affirmed the district court’s determination that Washington had violated its obligations under the Treaties by building and maintaining culverts that caused the size of salmon runs to diminish by blocking salmon migration,4 and therefore it had to remove or replace culverts under roadways which do so.5
The Ninth Circuit’s sovereign immunity holding regarded Washington’s “cross-request,” essentially a counterclaim against the United States, which had joined the suit brought by twenty-one Tribal Nations.6 Washington sought an injunction declaring that culverts maintained by the United States also violated Treaty fishing rights and therefore also must be removed or replaced. The Ninth Circuit adopted the criteria set out in Tenth Circuit case law7 for the “recoupment” test for counterclaims allowed against sovereign entities despite the immunity defense:
To constitute a claim in recoupment, a defendant’s claim must (1) arise from the same transaction or occurrence as the plaintiff’s suit; (2) seek relief of the same kind or nature as the plaintiff’s suit; and (3) seek an amount not in excess of the plaintiff’s claim.8
In filing suit and invoking a court’s jurisdiction, a sovereign entity waives immunity for such recoupment claims. The Ninth Circuit held that a claim seeking non- monetary relief, here an injunction, does not meet the recoupment test. Consequently, Washington’s cross- request for an injunction requiring the United States to correct its barrier culverts was barred by sovereign immunity.9 This holding might be ameliorated by a third party suit against federal officials for injunctive relief under the Ex parte Young10 doctrine.
While the Ninth Circuit’s holding does not apply to Tribal Nations, the Tenth Circuit Court of Appeals, from which the Ninth Circuit adopted its “recoupment” criteria, has done so.11 Therefore, either the Ninth or Tenth Circuits could extend the holding of United States v. Washington to Tribal Nations to conclude that a recoupment claim that does not seek monetary relief is barred by the Tribe’s sovereign immunity. Given that tribal officials, like federal officials, may also be sued for injunctive relief when acting contrary to law,12 seeking injunctive relief against one or more tribal officials should be borne in mind, instead of seeking such relief against a Tribe.
New Mexico: Tribal sovereign immunity bars suit seeking to confirm access to private property.
In the second case, Hamaatsa, Inc. v. Pueblo of San Felipe,13 the New Mexico Supreme Court rejected several theories advanced by the plaintiff, a non-profit located in a rural area that sought to confirm access to its property over a road that had been transferred to the Pueblo of San Felipe, to evade the sovereign immunity defense raised by the Pueblo.
According to the allegations described in the New Mexico Supreme Court’s opinion, since 1906, Hamaatsa accessed its land via a road crossing land owned by the Bureau of Land Management (BLM). In 2001, the BLM transferred the land to the Pueblo, subject to an easement for the road. In 2002, the BLM transferred its interest in the easement to the Pueblo. In 2009, the Pueblo informed Hamaatsa that it could no longer use the road to access its property. Hamaatsa sued, and the Pueblo moved to dismiss based on sovereign immunity.14 The state district court denied the motion to dismiss, concluding that that the action was an in rem proceeding not barred by sovereign immunity and, in a split decision, the New Mexico Court of Appeals affirmed, albeit on different grounds. Specifically, the court of appeals’ majority reasoned that the use of the road did not threaten or otherwise affect the Pueblo’s sovereignty and that equitable considerations militated against application of sovereign immunity. The New Mexico Supreme Court reversed.
The New Mexico Supreme Court rejected all of Hamaatsa’s arguments why sovereign immunity did not bar suit. The court first outlined the familiar doctrine of sovereign immunity, noting that neither Congress nor the Pueblo waived immunity here, and then addressed the “novel” arguments by Hamaatsa.15 The court noted that “[c]ourts time and again have sought to alleviate similar claims of inequity resulting from the imposition of sovereign immunity,” but ruled that such efforts fail to overcome the immunity defense.16
The first issue was whether the sovereign immunity defense applies equally to in rem and in personam actions. While the court noted that some state courts have held that immunity does not bar an in rem action, it relied on the United States Supreme Court’s Bay Mills decision17 (which upheld tribal sovereign immunity for off- reservation commercial ventures but did not address an in rem proceeding) to reject that conclusion.18
The second issue was whether the relief Hamaatsa sought, declaratory, made the defense of immunity inapplicable. Again, the court noted a line of authority holding that immunity only barred claims against Tribes for monetary damages. But the court reasoned otherwise and held that New Mexico courts lack jurisdiction to hear a claim “against a Tribe in New Mexico for any relief—be it monetary, declaratory, or injunctive.”19 Because Hamaatsa’s claims were only against the Pueblo itself, the New Mexico Supreme Court did not address a claim against tribal officials analogous to Ex parte Young,20 though it recognized such a claim may avoid sovereign immunity defenses.21 The Hamaatsa court also rejected equitable considerations due to the “venerable interests” served by tribal sovereign immunity, including self- governance and self-sufficiency.22
The New Mexico court’s rejection of equitable interests has analogues in federal cases. This term, in Nebraska v. Parker,23 the United States Supreme Court rejected equitable considerations in determining whether the Omaha Tribe’s Nebraska reservation was diminished by an 1882 statute. Finding an absence of the required clear congressional intent to diminish a reservation in the 1882 Act that provided for the survey, sale, and allotment of the reservation lands, the Court declined to consider “justifiable expectations” of non-Indians living on the land with respect to continued reservation status, though, in a closing paragraph, it suggested its decision in City of Sherrill v. Oneida Indian Nation of N.Y.24 might be applied to bar enforcement of the tribal rights at issue in the case.25 And, a few years ago, in Carcieri v. Salazar,26 the United States Supreme Court held that an unambiguous statute precluded the Department of the Interior (DOI) from taking land into trust for any Tribal Nations that was not recognized and under federal jurisdiction in 1934, when the relevant congressional act was passed. This disrupted the practice of the DOI, which had taken into trust lands for Tribes recognized after 1934.
Both the Ninth Circuit and the New Mexico high court confirmed the importance of sovereign immunity, the latter relying, in part, on the United States Supreme Court’s recent Bay Mills decision. Both cases give narrow scope to exception to the immunity defense. Hamaatsa reflects what could be a trend building upon Carcieri and extended in Parker to decline to rely upon expectations or equities in interpreting statutes in light of clear statutes or established case law. However, expectations or equities may have a role with respect to remedies. For instance, in Parker the Supreme Court indicated that expectations may play a role in determining whether certain relief is time- barred.