Removing Tribe Did Not Waive Sovereign Immunity: Ninth Circuit | Practical Law

Removing Tribe Did Not Waive Sovereign Immunity: Ninth Circuit | Practical Law

In Bodi v. Shingle Springs Band of Miwok Indians, the US Court of Appeals for the Ninth Circuit held that an Indian tribe does not waive its sovereign immunity from suit by exercising its right to remove a case to federal court.

Removing Tribe Did Not Waive Sovereign Immunity: Ninth Circuit

Practical Law Legal Update w-002-9675 (Approx. 2 pages)

Removing Tribe Did Not Waive Sovereign Immunity: Ninth Circuit

by Practical Law Litigation
Published on 09 Aug 2016 • USA (National/Federal)
In Bodi v. Shingle Springs Band of Miwok Indians, the US Court of Appeals for the Ninth Circuit held that an Indian tribe does not waive its sovereign immunity from suit by exercising its right to remove a case to federal court.
On August 8, 2016, in Bodi v. Shingle Springs Band of Miwok Indians, the US Court of Appeals for the Ninth Circuit held that an Indian tribe does not waive its sovereign immunity from suit by exercising its right to remove a case to federal court ( (9th Cir. Aug. 8, 2016)).
The Shingle Springs Band of Miwok Indians (the Tribe) is a federally recognized Indian tribe in California that owns and operates a full-service health clinic. Plaintiff Beth A. Bodi, a member of the Tribe, worked at the clinic and was terminated after attempting to take job-protected leave under the Family Medical Leave Act (FMLA). 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 US District Court for the Eastern District of California and moved to dismiss based on sovereign immunity. The district court denied the Tribe's motion on the ground that the Tribe had unequivocally waived its sovereign immunity by removing the action to federal court. The Tribe appealed.
On appeal, the Ninth Circuit considered whether a federally recognized Indian tribe waives its sovereign immunity from suit by exercising its right to remove a case from state to federal court. Joining the US Court of Appeals for the Eleventh Circuit, the court held that a tribe's removal of a case, standing alone, is not a clear and unequivocal expression of intent to waive immunity from suit, and thus does not constitute a valid waiver.
In its decision, the Ninth Circuit noted that:
  • Although a tribe may waive its sovereign immunity, the waiver must be unequivocally expressed and cannot be implied.
  • The Tribe did not expressly state its intent to waive its immunity when it removed the case and, instead, promptly asserted its sovereign immunity defense in federal court.