The Springs Band of Miwok Indians operates the Springs Band of Miwok Indians in Placeville, California. Photo from SSHWC
The Shingle Springs Band of Miwok Indians did not waive its immunity by seeking to have a lawsuit heard in federal court, the 9th Circuit Court of Appeals ruled on Monday. The tribe was sued by a former employee who alleged she was fired in violation of the Family and Medical Leave Act after she tried to take time off for health-related reasons. She also said the tribe violated state employment laws. The tribe had the case removed to federal court in order to raise issues under federal law. But that act, in and of itself, did not constitute a waiver of sovereign immunity, the 9th Circuit ruled. "Indian tribes possess immunity from suit unless expressly abrogated or waived," Judge Michelle T. Friedland wrote in the unanimous decision. "Nothing in the removal statute, 28 U.S.C. § 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."
Indianz.Com SoundCloud: 9th Circuit Court of Appeals Oral Arguments in Beth Bodi v. Shingle Springs Band of Miwok Indians May 12, 2016
At the same time, the court did not express a view on whether the Family and Medical Leave Act abrogated the tribe's immunity. That issue could be considered when the case returns to a federal judge. "We leave it to the district court to address on remand any remaining immunity issues in this case, such as whether Congress abrogated tribal immunity through the FMLA, whether the tribe explicitly waived its immunity through some means other than removal, and whether the Tribe’s immunity, if intact, protects the health board and the health board’s chairperson," Friedland wrote. In addition to the tribe, the former employee named the tribe's health board and the health board chair as defendants because she used to work at the tribe's clinic. The 9th Circuit's decision follows a similar one from the 11th Circuit Court of Appeals in holding that tribes do not waive immunity when they follow the federal removal statute. That ruling came in a case involving the Seminole Tribe of Florida. The U.S. Supreme Court declined to review the matter in January 2013. Turtle Talk has posted briefs from the case, Bodi v. Shingle Springs Band of Miwok Indians. 9th Circuit Court of Appeals Decision:
Bodi v. Shingle Springs Band of Miwok Indians (August 8, 2016) 11th Circuit Court of Appeals Decision:
Contour Spa at the Hard Rock v. Seminole Tribe (August 30, 2012)
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