United States: Will The Ex Parte Young Doctrine Swallow Tribal Sovereign Immunity Whole?

Last Friday, the United States Court of Appeals for the D.C. Circuit rendered an opinion in Vann v. Dept. of Interior which threatens to eviscerate a central principal of Indian law – that Indian tribes enjoy sovereign immunity from suit – with a holding that, under the Ex parte Young doctrine, a plaintiff may proceed against Cherokee tribal officials without the consent of the Cherokee Nation. The opinion further allows suits against the United States affecting Indian tribal interests, which are traditionally barred by the tribe's status as an indispensable but sovereign immune party, to proceed without the consent of the tribe simply by naming tribal officials.

The stakes could not be higher for Indian Country in general and the Indian gaming community in particular. Tribal sovereign immunity limits remedies available in breach of contract actions. As a result, smart investors negotiate limited waivers of sovereign immunity when contracting with tribes. The doctrine also limits the scope of litigation from those opposing gaming projects. In short, tribal sovereign immunity from suits alleging violations of federal law helps establish predictability and a measure of certainty in prospective Indian gaming projects.

The Cherokee Freedmen Controversy

The underlying issue in the Cherokee litigation recalls the fascinating history of the "Five Civilized Tribes" (Cherokee, Choctaw, Creek, Chickasaw, and Seminole), all of which owned African-American slaves in the southeastern United States. When these tribes were removed to Indian Territory (which became the state of Oklahoma), they brought their slaves with them. The Cherokee Nation sided with the Confederacy during the Civil War (although Cherokee members fought on both sides), and at the war's conclusion, the United States forced the Nation to make a new treaty in 1866. The new treaty emancipated Cherokee slaves and made them "full citizens" of the Cherokee Nation known as "Freedmen."

The Freedmen continued to live among the Cherokee, as many had family ties and Indian blood. In 1896, the Dawes Commission made membership rolls for the Cherokee Nation for the purposes of allotting tribal land to individuals with the goal of eventually extinguishing the reservations. The Freedmen were listed on a separate roll of former slaves and their descendants, although many of those listed on the Freedmen roll also had Cherokee blood.

The current dispute traces to actions of the Cherokee Nation, which recently prevented Freedmen from voting in tribal elections and amended the Cherokee Constitution to disenroll the Freedmen altogether.

The Freedmen's Federal Suit

The Freedmen sought injunctive relief against the United States and the Secretary of the Interior in federal court hoping to invalidate election results pursuant to the Administrative Procedure Act. In 2008, a panel of the D.C. Circuit granted the Cherokee Nation's motion to dismiss the suit on the basis that the Tribe was an indispensable party whose joinder was barred by sovereign immunity, but also held that under the Ex parte Young doctrine, tribal sovereign immunity did not bar the suit against tribal officers.

The Freedmen then filed a new suit against the United States also naming S. Joe Crittenden in his official capacity as Principal Chief of the Cherokee Nation. The Cherokee Nation again argued that it was an indispensable party whose interests could not be adequately represented by tribal officials, and the D.C. District Court agreed. On Friday, the D.C. Circuit reversed the District Court, stating that the Freedmen could proceed against the United States by naming the Principal Chief in his official capacity without joining the Tribe.

Judge Brett Kavanaugh, a Bush appointee and protégé of Kenneth Starr, wrote the opinion, stating "the Cherokee Nation and the Principal Chief in his official capacity are one and the same in an Ex parte Young suit for declaratory and injunctive relief." He continued, "As a result, the Principal Chief can adequately represent the Cherokee Nation in this suit, meaning that the Cherokee Nation itself is not a required party for purposes of Rule 19."

The D.C. Circuit panel opinion concluded that the 1866 Treaty, and even the 13th Amendment, did not abrogate the Tribe's sovereign immunity. Despite its own narrative describing Congress's declination to do so, the panel used the judge-made Ex parte Young doctrine to create a private right of action and effect a forfeiture of tribal sovereign immunity.

Unprecedented Abrogation of Tribal Sovereignty

The D.C. Circuit surprisingly relied, in part, on Santa Clara Pueblo v. Martinez, in which the Supreme Court decided that Congress intended that the internal affairs of Indian tribes remain beyond the reach of federal courts. In that case, a member of the Santa Clara Pueblo challenged the Tribe's membership law, which excluded children of female, but not male, members that had married outside the tribe, on the basis that the law violated the Indian Civil Rights Act ("ICRA").

The Santa Clara Pueblo Court held that Indian tribes are immune from suit and, after a painstaking examination of Congress's intent, that ICRA did not create a private cause of action. The plaintiff in Martinez named the Pueblo's governor in the suit, but the Court dismissed the action for lack of jurisdiction over the Tribe.

The court concluded that a waiver of sovereign immunity must be "unequivocally expressed." This conclusion does not lend support to the idea that the judge-made law of Ex parte Young may pierce tribal sovereign immunity without an unequivocally expressed waiver. In fact, the Court expressly held that Congress has the power to allow suits against tribal officials, but had not done so, writing "[a]lthough Congress clearly has power to authorize civil actions against tribal officers, and has done so with respect to habeas corpus relief in [ICRA], a proper respect both for tribal sovereignty itself and for the plenary authority of Congress in this area cautions that we tread lightly in the absence of clear indications of legislative intent."

Conclusion

Many people are sympathetic to the plaintiffs' civil rights arguments in the Cherokee suit. However, it is contrary to Indian law principles to apply Ex parte Young to reach these issues. The United States Congress has plenary power over Indian affairs under the Indian Commerce Clause of the Constitution, and that power leaves Congress to balance the sometimes competing interests of tribal sovereignty with the rights of tribal members. The Santa Clara Pueblo Court recognized Congress's intention that tribal courts are the appropriate forums for vindicating civil rights against Indian tribes.

The D.C. Circuit panel's announcement of a drastic diminishment in tribal sovereignty departs from well-established Indian law and injects unwelcome uncertainty into political and business relationships with Indian tribes. When it comes to Indian law, experience has shown us that it is better for the courts to "tread lightly."

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