Bodi v. Shingle Springs Band of Miwok Indians
832 F.3d 1011
9th Cir.2016Background
- Plaintiff Beth Bodi, a tribal member, sued the Shingle Springs Band of Miwok Indians and related tribal entities in California state court asserting FMLA and state-law employment claims after termination(s).
- The Tribe timely removed to federal court based on federal-question jurisdiction (FMLA) and immediately moved to dismiss asserting tribal sovereign immunity under Rule 12(b)(1).
- The district court held that the Tribe waived sovereign immunity by removing the case to federal court and denied the Tribe’s immunity-based dismissal; defendants appealed.
- The Ninth Circuit took the waiver question de novo and treated the complaint allegations as true for jurisdictional purposes.
- The Ninth Circuit followed the Eleventh Circuit and held removal, standing alone, is not a clear and unequivocal waiver of tribal sovereign immunity; it reversed and remanded for further consideration of other immunity issues (e.g., FMLA abrogation, express tribal waivers).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does removal to federal court waive a tribe’s sovereign immunity? | Removal is an affirmative litigation act that waives immunity (analogous to Lapides for States). | Removal, by itself, is not an express, unequivocal waiver; tribes retain immunity unless Congress abrogates or tribe clearly waives. | Removal alone does not waive tribal sovereign immunity. |
| Should Lapides v. Board of Regents (State Eleventh Amendment context) govern tribal immunity? | Lapides’ reasoning extends: voluntary removal should preclude asserting immunity. | Lapides applies to States’ Eleventh Amendment context only; tribal immunity is different and more protective. | Lapides does not control tribal immunity waiver; cannot be extended here. |
| Can waiver be implied from litigation conduct (e.g., participation, removal)? | Implied waiver doctrines applicable to States should apply to tribes. | Tribes require clear, unequivocal waiver; waivers cannot be implied. | Waivers of tribal immunity cannot be implied; must be explicit. |
| Would recognizing waiver-by-removal create unfair procedural consequences? | N/A (plaintiff focuses on waiver doctrine). | Holding removal = waiver would force tribes into a Hobson’s choice and incentive races to federal court. | Court agrees it would be unfair and administratively problematic; supports no-waiver rule. |
Key Cases Cited
- Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200 (11th Cir. 2012) (held removal does not waive tribal immunity)
- Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024 (2014) (discusses tribal sovereign immunity as corollary of tribal sovereignty)
- Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (tribal immunity and the presumption against waiver)
- Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991) (tribal waiver of immunity must be unequivocal)
- Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002) (State removal waived Eleventh Amendment immunity in limited context)
- C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411 (2001) (clarifies that waiver must be clear though not bound to specific words)
- Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751 (1998) (reaffirming settled doctrine of tribal immunity)