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9th Cir: Miwok Indians Did Not Waive Sovereign Immunity

By Jonathan R. Tung, Esq. on August 12, 2016 3:57 PM

The Ninth Circuit ruled that the Shingle Springs Band of Miwok Indians did not inadvertently waive their sovereign immunity by removing a state court matter into a federal court. This is largely because such a move did not constitute a clean and unequivocal waiver.

With or without a trial, the ruling is a landmark victory for various Native American nations' sovereignty.

Family Medical Leave Act

The tribe met trouble in court when one of its former employees sued it for allegedly violating the Family and Medical Leave Act. She claimed the tribe fired her when she attempted to take time off for health-related reasons. She also alleged violations of California's state employment laws.

Removal to Federal Court

Because the ex-employee had alleged federal question issues, the tribe was entitled to remove the case to federal court -- which it did. But in doing so, the legal issue became whether or not the tribe had waived its sovereign immunity as a recognized nation in so doing. The Ninth Circuit ruled that removal, by itself, did not constitute such a waiver.

"Not a Clear Waiver"

"Indian tribes possess immunity from suit unless expressly abrogated or waived," Judge Michelle T. Friedland wrote for the three-judge panel. "Nothing in the removal statute, 28 U.S.C. section 1441, abrogates tribes' sovereign immunity. And the absence of a dedicated removal provision for tribes says nothing about whether a tribe's decision to invoke its general removal right constitutes a clear waiver of immunity."

In Accordance with Seminole

The Ninth Circuit's decision to recognize Miwok sovereignty coincides with the the Eleventh Circuit's decision in Seminole. There, the federal appellate court also ruled that removal to federal court was not a clear and unequivocal waiver of immunity.

Those who are interested in reviewing the procedure of the case are encouraged to review the briefs of the case.

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