Vann v. Kempthorne

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2008 Decided July 29, 2008

No. 07-5024

MARILYN VANN, ET AL.,

APPELLEES

v.

DIRK KEMPTHORNE, SECRETARY OF THE UNITED STATES

DEPARTMENT OF THE INTERIOR, ET AL.,

APPELLEES

CHEROKEE NATION,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cv01711)

Garret G. Rasmussen argued the cause for appellant.

With him on the briefs were Raymond G. Mullady Jr., Lanny

J. Davis, and Adam W. Goldberg. Christopher M. O’Connell

entered an appearance.

Jonathan Velie argued the cause for appellees. With him

on the brief were Jack McKay, Alvin B. Dunn, Thomas G.

Allen, and Ellen C. Cohen.

2

Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: The issue on appeal is the

extent to which sovereign immunity protects a federally

recognized Indian tribe and its officers against suit. For the

reasons that follow, we hold that the suit may proceed against

the tribe’s officers but not against the tribe itself.

I.

The Cherokee Nation shares with the United States a

common stain on its history: the Cherokees owned African

slaves. At the end of the Civil War, during which the tribe

sided with the Confederacy, the Cherokee Nation and the

United States entered into a treaty reestablishing relations. See

Treaty with the Cherokee, July 19, 1866, 14 Stat. 799 (“1866

Treaty”). In the treaty, the Cherokee Nation renounced

slavery and involuntary servitude, and promised to extend “all

the rights of native Cherokees” to the former Cherokee slaves,

who came to be known as “Freedmen.” 1866 Treaty, art. IX.

In 1896, Congress directed the Dawes Commission to

create membership rolls for the so-called Five Civilized

Tribes of Oklahoma, which included the Cherokee Nation.

See Act of June 10, 1896, ch. 398, 29 Stat. 321, 339. The rolls

for the Cherokees were completed in 1907 and resulted in two

lists: a “Blood Roll” for native Cherokees, and a “Freedmen

Roll” for former slaves and their descendants. These lists

serve an important function because the tribal constitution of

1976 provides that citizenship in the Cherokee Nation must be

proven by reference to the Dawes Commission Rolls. The

citizens of the Cherokee Nation choose their tribal leaders by

popular election according to procedures approved by the

3

Secretary of the U.S. Department of the Interior (“Secretary”).

See Principal Chiefs Act of 1970, Pub. L. 91-495; see also

Letter from Neal A. McCaleb, Assistant Sec’y of Indian

Affairs, U.S. Dep’t of Interior, to Chadwick Smith, Principal

Chief, Cherokee Nation (Mar. 15, 2002) (reaffirming

continuing validity of the Principal Chiefs Act), J.A. 150–51;

Letter from Neal A. McCaleb, Assistant Sec’y of Indian

Affairs, U.S. Dep’t of Interior, to Chadwick Smith, Principal

Chief, Cherokee Nation (Apr. 23, 2002) (disavowing letter of

March 15, 2002, but reaffirming continuing validity of the

Principal Chiefs Act), J.A. 153–54.

Marilyn Vann and other descendants of persons listed on

the Freedmen Roll (collectively, “the Freedmen”) allege they

were not permitted to vote in two tribal elections because they

lack an ancestral link to the Blood Roll. In the May 24, 2003

election, voters reelected Chief Chadwick Smith, chose other

tribal officers, and amended the tribal constitution to

eliminate a provision requiring the Secretary’s approval of

amendments. The July 26, 2003 election saw further

constitutional amendments and a run-off for tribal officers.

The Freedmen, protesting their alleged disenfranchisement,

asked the Secretary to invalidate the May 24 election. The

Secretary pressed the Cherokee Nation to address the

Freedmen’s concerns and submit its election procedures for

federal review. See, e.g., Letter from Jeanette Hanna,

Regional Director, U.S. Dep’t of Interior, to Chadwick Smith,

Principal Chief, Cherokee Nation (July 25, 2003) (“The

[Principal Chiefs Act] provides . . . that the procedures for

selecting the Principal Chief of the Cherokee Nation are

subject to approval by the Secretary of the Interior. We are

aware of no evidence that the Secretary has approved the

current procedures for the election of the Principal Chief.”),

J.A. 194. Except for writing a few letters, the Cherokee

Nation appears to have done little in response. The Secretary

4

nevertheless recognized Chief Smith’s election on August 6,

2003, referring any election disputes to the tribal courts. See

Letter from Jeanette Hanna, Regional Director, U.S. Dep’t of

Interior, to Chadwick Smith, Principal Chief, Cherokee

Nation (Aug. 6, 2003) (stating that “it is inappropriate and

premature for the Department to question the validity of the

election of Tribal officials”), J.A. 199–200. The Secretary

held the May 24 constitutional amendment under review until

Chief Smith eventually withdrew the tribe’s request for

approval of that amendment in June 2006.

The Freedmen sued the Secretary under the

Administrative Procedure Act in the United States District

Court for the District of Columbia, alleging that their

exclusion from the tribal elections, along with the Secretary’s

recognition of those elections, violated the Thirteenth

Amendment, the Fifteenth Amendment, the Cherokee

constitution, the 1866 Treaty, the Principal Chiefs Act, and

the Indian Civil Rights Act. The Freedmen sought a

declaratory judgment that the Secretary had behaved

arbitrarily and capriciously. 5 U.S.C. § 706(2)(A). The

Freedmen also sought to enjoin the Secretary from

recognizing the results of the 2003 elections, or of any future

elections from which the Freedmen would be excluded.

The district court granted the Cherokee Nation leave to

intervene for the limited purpose of challenging the suit under

Federal Rule of Civil Procedure 19. The Cherokee Nation

then moved to dismiss on the grounds that although it was a

necessary and indispensable party, sovereign immunity barred

its joinder.1 See FED. R. CIV. P. 19(b) (“If a person who is

1

The words “necessary” and “indispensable” have become obsolete

in the Rule 19 context as a result of stylistic changes to the Rule

that have occurred since the proceedings in the district court. See

5

required to be joined if feasible [as defined in subparagraph

(a)] cannot be joined, the court must determine whether, in

equity and good conscience, the action should proceed among

the existing parties or should be dismissed.”). The Freedmen

responded with a motion for leave to file an amended

complaint naming as defendants the Cherokee Nation, Chief

Smith, and other tribal officers, all of whom were alleged to

have violated the Thirteenth Amendment and the 1866 Treaty.

After determining that the tribe was a necessary party under

Rule 19(a), the district court concluded that the tribe and its

officers could be joined because the tribe did not enjoy

sovereign immunity against the Freedmen’s suit. Accordingly,

the district court denied the motion to dismiss and granted the

motion for leave to file.

The Cherokee Nation appeals the denial of its motion to

dismiss on sovereign immunity grounds. Under 28 U.S.C.

§ 1291 and the collateral order doctrine, we may hear an

interlocutory appeal from the denial of such a motion. See

Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376

F.3d 1123, 1126 (D.C. Cir. 2004) (citing P.R. Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144

(1993), and Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541, 546 (1949)); Wisconsin v. Ho-Chunk Nation, 512 F.3d

921, 928 (7th Cir. 2008) (“A district court’s determination

that a tribe’s sovereign immunity has been waived by the tribe

or abrogated by Congress falls within the ambit of the

collateral order doctrine . . . .”). We review de novo the

district court’s conclusion that the Cherokee Nation and its

officers do not enjoy tribal sovereign immunity. See Cherokee

Nation v. Babbitt, 117 F.3d 1489, 1497–98 (D.C. Cir. 1997).

Republic of Philippines v. Pimentel, No. 06-1204, slip op. at 2 (U.S.

June 12, 2008) (noting the replacement in Rule 19 of “necessary”

with “required,” and the deletion of “indispensable”).

6

II.

Indian tribes did not relinquish their status as sovereigns

with the creation and expansion of the republic on the North

American continent. The courts of the United States have long

recognized that the tribes once were, and remain still,

independent political societies. E.g., Worcester v. Georgia, 31

U.S. (6 Pet.) 515, 556–57 (1832); Cherokee Nation v.

Georgia, 30 U.S. (5 Pet.) 1, 16–17 (1831). “Perhaps the most

basic principle of all Indian law, supported by a host of

decisions, is that those powers lawfully vested in an Indian

nation are not, in general, delegated powers granted by

express acts of Congress, but rather ‘inherent powers of a

limited sovereignty which has never been extinguished.’ ”

FELIX S. COHEN’S HANDBOOK OF FEDERAL INDIAN LAW

§ 4.01[1][a], at 206 (Nell Jessup Newton ed., 2005)

[hereinafter, COHEN’S HANDBOOK] (quoting United States v.

Wheeler, 435 U.S. 313, 322–23 (1978)). That said, Congress

may whittle away tribal sovereignty as it sees fit. See Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (noting that

“Congress has plenary authority to limit, modify or eliminate

the powers of local self-government which the tribes

otherwise possess”); Wheeler, 435 U.S. at 322 (noting that

tribes are “subject to ultimate federal control”); Fisher v.

District Court, 424 U.S. 382, 390 (1976) (referring to tribes’

“quasi-sovereign status”); United States v. Kagama, 118 U.S.

375, 381 (1886) (referring to tribes as “semi-independent”);

Cherokee Nation, 30 U.S. (5 Pet.) at 17 (referring to tribes as

“domestic dependent nations” whose “relation to the United

States resembles that of a ward to his guardian”).

As sovereigns, Indian tribes enjoy immunity against suits.

Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998);

Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe,

7

498 U.S. 505, 509 (1991); Santa Clara Pueblo, 436 U.S. at

58–59; Puyallup Tribe, Inc. v. Dep’t of Game, 433 U.S. 165,

172 (1977); United States v. U.S. Fid. & Guar. Co., 309 U.S.

506, 512 (1940); Wichita & Affiliated Tribes v. Hodel, 788

F.2d 765, 771 (D.C. Cir. 1986). This immunity flows from a

tribe’s sovereign status in much the same way as it does for

the States2 and for the federal government. See Seminole

Tribe v. Florida, 517 U.S. 44, 54 (1996) (noting the

“presupposition . . . that ‘ “[i]t is inherent in the nature of

sovereignty not to be amenable to the suit of an individual

without its consent” ’ ”) (quoting Hans v. Louisiana, 134 U.S.

1, 13 (1890) (quoting THE FEDERALIST No. 81 (Alexander

Hamilton) (Clinton Rossiter ed., 1961))). Congress’s power to

limit the scope of a tribe’s sovereignty extends to tribal

sovereign immunity. “This aspect of tribal sovereignty, like

all others, is subject to the superior and plenary control of

Congress.” Santa Clara Pueblo, 436 U.S. at 58; see also

Okla. Tax Comm’n, 498 U.S. at 510 (“Congress has always

been at liberty to dispense with such tribal immunity or to

limit it.”). But abrogation of tribal sovereign immunity

requires an explicit and unequivocal statement to that effect.

C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe,

532 U.S. 411, 418 (2001) (“To abrogate tribal immunity,

Congress must ‘unequivocally’ express that purpose.”)

(quoting Santa Clara Pueblo, 436 U.S. at 58); Cherokee

Nation, 117 F.3d at 1498 (“Any waiver of a tribe’s sovereign

immunity, whether by Congress or by the tribe itself, ‘cannot

be implied but must be unequivocally expressed.’ ”) (quoting

Santa Clara Pueblo, 436 U.S. at 58).

Has there been an abrogation of tribal sovereign

immunity in our case? The district court concluded that

2

The States also count the Eleventh Amendment as a source of

sovereign immunity. See U.S. CONST. amend. XI.

8

“Congress clearly indicated its intent to abrogate the

Cherokee Nation’s immunity with respect to violations of the

Thirteenth Amendment as evidenced by the Treaty of 1866.”

Vann v. Kempthorne, 467 F. Supp. 2d 56, 70 (D.D.C. 2006).

The district court reasoned as follows. See id. at 66–70. The

Thirteenth Amendment, which applies to Indian tribes,

eradicates the badges and incidents of slavery. The 1866

Treaty implements similar principles for the Cherokee Nation.

See 1866 Treaty, art. IX (abolishing slavery and granting

Freedmen “all the rights of native Cherokees”); id. art. VI

(declaring that the Cherokee Nation’s laws “shall be uniform

throughout said nation”); id. art. XII (acknowledging

supremacy of federal law). Later historical developments,

including an 1888 statute forcing the Cherokee Nation to

share its assets with the Freedmen, further demonstrate

Congress’s intent to protect the Freedmen against

discrimination. “By repeatedly imposing such limitations on

the sovereignty of the Cherokee Nation in order to protect the

Freedmen, Congress has unequivocally indicated its intent to

abrogate the tribe’s immunity with regard to racial oppression

prohibited by the Thirteenth Amendment.” Vann, 467 F.

Supp. 2d at 69. Denying the Freedmen the right to vote in

tribal elections violates the Thirteenth Amendment and the

1866 Treaty, so the Cherokee Nation cannot claim tribal

sovereign immunity against a suit complaining of such a

badge and incident of slavery.

The district court is mistaken to treat every imposition

upon tribal sovereignty as an abrogation of tribal sovereign

immunity.3 Sovereignty and immunity are related, Alden v.

3

The Freedmen make a similar error in arguing that the “overriding

interest” of the United States implicitly abrogates tribal sovereign

immunity. Freedmen’s Br. at 9–15 (citing Wheeler, 435 U.S. at

323; Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209–10

(1978); Washington v. Confederated Tribes of the Colville Indian

9

Maine, 527 U.S. 706, 715 (1999), the latter being an attribute

of the former, P.R. Aqueduct & Sewer Auth., 506 U.S. at 146.

But it is possible to cut back sovereignty in a way that leaves

sovereign immunity intact. Cf. Kiowa Tribe, 523 U.S. at 755

(“To say substantive state laws apply to off-reservation

conduct, however, is not to say that a tribe no longer enjoys

immunity from suit. . . . There is a difference between the

right to demand compliance with state laws and the means

available to enforce them.”). Congress can impose substantive

constraints upon a tribe without subjecting the tribe to suit in

federal court to enforce those constraints, as the Supreme

Court made clear in Santa Clara Pueblo. In that case, an

individual Indian sued her tribe in federal court, alleging

gender discrimination in violation of the equal protection

guarantee of the Indian Civil Rights Act (“ICRA”), 25 U.S.C.

§ 1302. Despite the ICRA’s imposition of substantive

constraints upon the tribe, the Supreme Court held the suit

barred by tribal sovereign immunity and sent the plaintiff to

pursue her claim in tribal court. See 436 U.S. at 58–59; see

also Nero v. Cherokee Nation, 892 F.2d 1457, 1461 (10th Cir.

1989) (noting the Santa Clara Pueblo distinction between a

substantive constraint and an abrogation of sovereign

immunity). Absent explicit and unequivocal language to the

contrary, the imposition of substantive constraints upon a

tribe’s sovereignty cannot be interpreted as an abrogation of

its sovereign immunity.

We must determine for ourselves whether anything in the

Thirteenth Amendment or the 1866 Treaty worked an

abrogation of the Cherokee Nation’s sovereign immunity.

Reservation, 447 U.S. 134, 153 (1980)). The cases cited speak to

implicit limitations on tribal sovereignty and have nothing to do

with tribal sovereign immunity, which is not subject to implicit

abrogation. Santa Clara Pueblo, 436 U.S. at 58.

10

Again, we will only acknowledge such an abrogation if the

text is express and unequivocal. See Santa Clara Pueblo, 436

U.S. at 59 (holding the ICRA not to abrogate tribal sovereign

immunity because “[n]othing on the face of Title I of the

ICRA purports to subject tribes to the jurisdiction of the

federal courts in civil actions for injunctive or declaratory

relief”); Fla. Paraplegic, Ass’n v. Miccosukee Tribe, 166 F.3d

1126, 1131 (11th Cir. 1999) (holding the Americans with

Disabilities Act not to abrogate tribal sovereign immunity and

declaring, “Congress abrogates tribal immunity only where

the definitive language of the statute itself states an intent

either to abolish Indian tribes’ common law immunity or to

subject tribes to suit under the act”); Bassett v. Mashantucket

Pequot Tribe, 204 F.3d 343, 357 (2d Cir. 2000) (holding the

Copyright Act not to abrogate tribal sovereign immunity,

where nothing on the statute’s face could be so construed).4

We find no express and unequivocal abrogation of the

Cherokee Nation’s sovereign immunity in the texts upon

4

For examples of statutes that satisfy the abrogation standard, see

COHEN’S HANDBOOK, § 7.05[1][b] (citing, inter alia, the Indian

Depredation Act, 26 Stat. 851 (1891) (conferring jurisdiction upon

Court of Claims to adjudicate “All claims for property of citizens of

the United States taken or destroyed by Indians belonging to any

band, tribe, or nation, in amity with the United States, without just

cause or provocation on the part of the owner or agent in charge,

and not returned or paid for”); the ICRA’s habeas corpus provision,

25 U.S.C. § 1303 (“The privilege of the writ of habeas corpus shall

be available to any person, in a court of the United States, to test the

legality of his detention by order of an Indian tribe.”); and the

Indian Gaming Regulatory Act, 25 U.S.C. § 2710(d)(7)(A)(ii)

(“The United States district courts shall have jurisdiction over . . .

any cause of action initiated by a State or Indian tribe to enjoin a

class III gaming activity located on Indian lands and conducted in

violation of any Tribal-State compact . . . .”)).

11

which the Freedmen rely. Nothing in § 1 of the Thirteenth

Amendment so much as hints at a federal court suit by a

private party to enforce the prohibition against badges and

incidents of slavery against Indian tribes. U.S. CONST. amend.

XIII, § 1 (“Neither slavery nor involuntary servitude, except

as a punishment for crime whereof the party shall have been

duly convicted, shall exist within the United States, or any

place subject to their jurisdiction.”). Although § 2 of the

Thirteenth Amendment gives Congress the power to generate

express and unequivocal language abrogating tribal sovereign

immunity to allow for such suits, that promise remains

unfulfilled absent some further legislative enactment. Id. § 2

(“Congress shall have power to enforce this article by

appropriate legislation.”). The 1866 Treaty similarly lacks any

clear abrogation of tribal sovereign immunity, as the Tenth

Circuit correctly concluded in Nero, 892 F.2d at 1461. The

Freedmen point to articles VI, IX, and XII of the 1866 Treaty,

but these say nothing about federal court suits against the

Cherokee Nation.

The Freedmen argue that our search for intent to abrogate

is misguided because the Thirteenth Amendment and the 1866

Treaty predate the doctrine of tribal sovereign immunity, such

that the drafters of those texts could not have foreseen the

interpretive rule requiring express and unequivocal

abrogation. Freedmen’s Br. at 15–20. This argument

misapprehends the nature of tribal sovereign immunity, which

is not the product of any enactment but an inherent attribute

of a tribe’s sovereignty. Tribal sovereign immunity existed at

the Founding, as surely as did tribal sovereignty, and our only

concern is whether the Thirteenth Amendment or the 1866

Treaty later abrogated that immunity. The unequivocal-

abrogation rule reflects the belief, as true in the nineteenth

century as it is today, that lawmakers do not lightly discard

12

sovereign immunity. We see no reason to depart from the

established interpretive rule based on the vintage of the texts.

Because nothing in the Thirteenth Amendment or the

1866 Treaty amounts to an express and unequivocal

abrogation of tribal sovereign immunity, the Cherokee Nation

cannot be joined in the Freedmen’s federal court suit without

the tribe’s consent. We reverse the district court’s

determination to the contrary.

III.

Having found the tribe’s sovereign immunity intact, we

must now assess whether tribal officers enjoy the same

immunity from suit as does the tribe itself. We do not

approach this question from scratch, for Ex parte Young, 209

U.S. 123 (1908), and related cases have come to apply to

questions of tribal sovereign immunity. See Santa Clara

Pueblo, 436 U.S. at 59 (citing Ex parte Young); Bassett, 204

F.3d at 358 (citing Ex parte Young); Tenneco Oil Co. v. Sac &

Fox Tribe of Indians, 725 F.2d 572, 574 (10th Cir. 1984)

(citing Larson v. Domestic & Foreign Commerce Corp., 337

U.S. 682 (1949)); cf. Recent Case, 79 HARV. L. REV. 851, 852

(1966) (suggesting extension of Ex parte Young to tribal

sovereign immunity context).

“The basic doctrine of Ex parte Young can be simply

stated. A federal court is not barred by the Eleventh

Amendment from enjoining state officers from acting

unconstitutionally, either because their action is alleged to

violate the Constitution directly or because it is contrary to a

federal statute or regulation that is the supreme law of the

land.” 17A CHARLES ALAN WRIGHT ET AL., FEDERAL

PRACTICE AND PROCEDURE § 4232 (3d ed. 2007) [hereinafter

WRIGHT & MILLER] (citations omitted). In Ex parte Young, a

13

private party was allowed to pursue an injunction in federal

court against Minnesota’s attorney general to prohibit his

enforcement of a state statute alleged to violate the Fourteenth

Amendment. This result rested upon the fiction that the suit

went against the officer and not the State, thereby avoiding

sovereign immunity’s bar. Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 114 n.25 (1984) (noting the fiction);

Kenneth Culp Davis, Suing the Government by Falsely

Pretending to Sue an Officer, 29 U. CHI. L. REV. 435 (1962)

(same). The officer, so the reasoning goes, cannot take refuge

in the State’s immunity if he contravenes federal law, and is

“stripped of his official or representative character and . . .

subjected in his person to the consequences of his individual

conduct.” Ex parte Young, 209 U.S. at 159–60. The Supreme

Court recently confirmed the ease with which this stripping

rationale can be applied. “In determining whether the doctrine

of Ex parte Young avoids an Eleventh Amendment bar to suit,

a court need only conduct a straightforward inquiry into

whether [the] complaint alleges an ongoing violation of

federal law and seeks relief properly characterized as

prospective.” Verizon Md. Inc. v. Pub. Serv. Comm’n, 535

U.S. 635, 645 (2002) (citation and quotation marks omitted).

Applying the principle of Ex parte Young in the matter

before us, we think it clear that tribal sovereign immunity

does not bar the suit against tribal officers. Santa Clara

Pueblo, which relied on Ex parte Young to hold a tribal

officer “not protected by the tribe’s immunity from suit,”

dictates this result. See 436 U.S. at 59. The Freedmen allege

that the Cherokee Nation’s officers are in violation of the

Thirteenth Amendment and the 1866 Treaty, and seek an

injunction preventing Chief Smith “from holding further

elections without a vote of all citizens, including the

Freedmen.” Pls.’ Second Am. Compl. ¶ 74, J.A. 138. Faced

with allegations of ongoing constitutional and treaty

14

violations, and a prospective request for injunctive relief,

officers of the Cherokee Nation cannot seek shelter in the

tribe’s sovereign immunity.

In an attempt to avoid the straightforward application of

Ex parte Young, the Cherokee Nation raises three arguments,

which we consider in turn. Finding none of them persuasive,

we conclude that sovereign immunity is no bar to the

Freedmen’s suit against the tribe’s officers, and therefore

affirm the district court’s determination to the same effect.

A.

Invoking Larson v. Domestic & Foreign Commerce

Corp., 337 U.S. 682 (1949), the Cherokee Nation argues that

tribal sovereign immunity bars the suit against its officers

because the requested relief really runs against the tribe itself.

This is reminiscent of the losing argument in Ex parte Young.

See 209 U.S. at 142, 149 (rejecting state officer’s “objection

. . . that the suit is, in effect, one against the State of

Minnesota”). The argument is no more persuasive a century

later. Due to an unfortunate footnote in the Larson opinion,

however, we must explain our reasoning at some length.

Larson involved a contract dispute between the federal

War Assets Administration and a private party to whom it had

sold surplus coal, the Domestic & Foreign Commerce

Corporation. The War Assets Administration understood the

contract of sale to require payment in advance of delivery of

the coal. When the Corporation insisted instead on depositing

the funds upon receipt, the War Assets Administration

considered the contract breached and sold the coal to a third

party. The Corporation sued in federal court for declaratory

and injunctive relief to prevent the federal Administrator from

15

delivering the coal to the third party, claiming entitlement to

the coal under the original contract of sale.

The Supreme Court considered whether the sovereign

immunity of the United States barred the suit against a federal

officer. The Court acknowledged Ex parte Young’s stripping

rationale, albeit with no direct citation to that case.

There may be, of course, suits for specific relief

against officers of the sovereign which are not suits

against the sovereign. . . . [W]here the officer’s

powers are limited by statute, his actions beyond those

limitations are considered individual and not sovereign

actions. . . . His actions are ultra vires his authority

and therefore may be made the object of specific

relief. . . . A second type of case is that in which the

statute or order conferring power upon the officer to

take action in the sovereign’s name is claimed to be

unconstitutional. . . . Here, too, the conduct against

which specific relief is sought is beyond the officer’s

powers and is, therefore, not the conduct of the

sovereign. . . . These two types have frequently been

recognized by this Court as the only ones in which a

restraint may be obtained against the conduct of

Government officials.

Larson, 337 U.S. at 689–90 (citing Phila. Co. v. Stimson, 223

U.S. 605, 620 (1912) (citing Ex parte Young)); see also id. at

704 (“Under our constitutional system, certain rights are

protected against governmental action and, if such rights are

infringed by the actions of officers of the Government, it is

proper that the courts have the power to grant relief against

those actions.”). The stripping rationale did not apply to the

Administrator because the Corporation’s breach-of-contract

claim did not show him to have acted outside his authority.

16

See id. at 691–92. Accordingly, the Court held the suit barred

by federal sovereign immunity, concluding that the suit was

actually against the United States and not its officer. Id. at

687–88.

Given the obvious distinction between our own case and

the one just described, the Cherokee Nation’s reliance on

Larson seems curious. Unlike the federal officer in Larson,

who was only alleged to have breached a contract, the tribal

officers in our case are said to have violated the Thirteenth

Amendment and the 1866 Treaty. These allegations bring our

case within the stripping rationale set forth in Ex parte Young

and described in Larson, such that tribal sovereign immunity

should not bar the Freedmen’s suit against the officers of the

Cherokee Nation.

Undeterred, the Cherokee Nation pins its hopes to

footnote 11 of the Larson opinion, which provides:

Of course, a suit may fail, as one against the

sovereign, even if it is claimed that the officer being

sued has acted unconstitutionally or beyond his

statutory powers, if the relief requested can not be

granted by merely ordering the cessation of the

conduct complained of but will require affirmative

action by the sovereign or the disposition of

unquestionably sovereign property. North Carolina v.

Temple, 134 U.S. 22 (1890).

Larson, 337 U.S. at 691 n.11. The Cherokee Nation claims

that the Freedmen improperly seek “affirmative action” on the

part of tribal officers. The Second Amended Complaint

requests an injunction preventing Chief Smith “from holding

further elections without a vote of all citizens, including the

Freedmen.” Pls.’ Second Am. Compl. ¶ 74, J.A. 138.

17

According to the tribe, this injunction “would restrain the

Nation from holding its elections and require the Nation to

take action to amend its constitution and voting laws to

include Plaintiffs as citizens with voting rights.” Cherokee

Nation’s Br. at 50. At oral argument, counsel for the tribe said

further, “what the relief would do is, it would paralyze the

Nation, it would stop the Nation from having any elections,

unless the Nation took affirmative steps to amend its

constitution.” Oral Arg. Recording at 8:27–8:37. Citing

decisions of our sister circuits, Fletcher v. United States, 116

F.3d 1315, 1324 (10th Cir. 1997); Shermoen v. United States,

982 F.2d 1312, 1320 (9th Cir. 1992), the tribe tells us that

“[t]he Ex parte Young fiction simply does not survive

Plaintiffs’ requested relief.” Cherokee Nation’s Br. at 50.

Whatever the Larson Court meant when it referred to

“affirmative action,” we conclude that this dicta does not limit

the force of Ex parte Young in the case at hand. We begin

with an examination of footnote 11, a Delphic pronouncement

that has been the subject of great judicial and scholarly

attention. See, e.g., Knight v. New York, 443 F.2d 415, 420

(2d Cir. 1971) (Friendly, J.) (“The Larson footnote has

become the subject of microscopic scholarly scrutiny.”);

David P. Currie, Sovereign Immunity and Suits Against

Government Officers, 1984 SUP. CT. REV. 149, 158 (“There

was a grain of truth in this wholly gratuitous dictum, but its

principal effect was to sow confusion.”); David L. Shapiro,

Wrong Turns: The Eleventh Amendment and the Pennhurst

Case, 98 HARV. L. REV. 61, 74 n.80 (1984) (referring to “the

Larson Court’s troublesome footnote 11”); Antonin Scalia,

Sovereign Immunity and Nonstatutory Review of Federal

Administrative Action: Some Conclusions from the Public-

Lands Cases, 68 MICH. L. REV. 867, 875 n.32 (1970) (noting

the possible significance of the Supreme Court’s failure to

cite footnote 11 in Malone v. Bowdoin, 369 U.S. 643 (1962),

18

which otherwise relied heavily on Larson). We then consider

whether the supposed prohibition against “affirmative action”

in footnote 11 reaches the Freedmen’s suit.

Before going any further, however, we note that the

continuing force of Larson’s footnote 11 is not free from

doubt. The Supreme Court did not mention the supposed

prohibition against “affirmative action” in its recent treatment

of the Ex parte Young doctrine in Verizon, 535 U.S. at 645–

48, its discussion of tribal sovereign immunity in Santa Clara

Pueblo, 436 U.S. at 58–59, or its decisions allowing

affirmative injunctions against state officers under Ex parte

Young, e.g., Milliken v. Bradley, 433 U.S. 267 (1977). Ill-

positioned as we are to issue retractions for the highest court

in the land, we will assume arguendo that footnote 11 is not a

dead letter circa 2008. But our discussion should not be

mistaken for an endorsement of its continuing vitality, and

any court that would rely on footnote 11 to bar an Ex parte

Young suit would have to grapple with the issue of its possible

obsolescence.

Taking a cue from Professor Jaffe, we begin by noting

the Court’s use of may — as in, “a suit may fail . . . if the

relief requested . . . will require affirmative action by the

sovereign,” Larson, 337 U.S. at 691 n.11 (emphasis added) —

rather than more commanding alternatives like must or will or

shall. Louis L. Jaffe, Suits Against Governments and Officers:

Sovereign Immunity, 77 HARV. L. REV. 1, 34 (1963) (noting

that if “may is read as may and not as must, it is

unobjectionable,” but that a contrary reading would place

footnote 11 at odds with “well-established doctrines”). Only

by embracing this equivocation can we read footnote 11 in

harmony with prior pronouncements. Consider the following

statement from Ex parte Young: “There is no doubt that the

court cannot control the exercise of the discretion of an

19

officer. It can only direct affirmative action where the officer

having some duty to perform not involving discretion, but

merely ministerial in its nature, refuses or neglects to take

such action. In that case the court can direct the defendant to

perform this merely ministerial duty.” 209 U.S. at 158

(emphasis added) (citing Bd. of Liquidation v. McComb, 92

U.S. 531, 541 (1875)). This language suggests that

“affirmative action” is not universally condemned in suits

against officers, and that some “affirmative action” is

permissible. Footnote 11 is not to the contrary, provided we

read may to mean what it says.

What, then, of that type of “affirmative action” that

Larson purports to forbid? Footnote 11 cites a single case,

North Carolina v. Temple, 134 U.S. 22 (1890), which

concerned a private bondholder’s suit to compel a state

auditor to levy a tax, the proceeds of which would be used to

pay interest to holders of state bonds. In a half-page opinion,

the Supreme Court dismissed the suit on sovereign immunity

grounds. Id. at 30 (“We think it perfectly clear that the suit

against the auditor in this case was virtually a suit against the

State of North Carolina. In this regard it comes within the

principle of the cases of [Jumel], [Cunningham], [Hagood],

and [In re Ayers].”). Temple, in turn, cited four cases

involving bondholders. See Louisiana v. Jumel, 107 U.S. 711,

720–23 (1883) (holding that sovereign immunity prevents

mandamus action to compel state officers to levy a tax to pay

bondholders); Cunningham v. Macon & Brunswick R.R. Co.,

109 U.S. 446, 450–57 (1883) (holding that sovereign

immunity prevents bondholders’ foreclosure suit); Hagood v.

Southern, 117 U.S. 52, 65–71 (1886) (holding that sovereign

immunity prevents suit to compel state comptroller general to

levy a tax to fund redemption of revenue bond scrip); In re

Ayers, 123 U.S. 443, 497–98, 502–03 (1887) (holding that

sovereign immunity prevents suit to enjoin state officer from

20

bringing tax collection suits against persons who had paid

taxes with bond coupons, where such collection was alleged

to breach bondholder’s contract, and where specific

performance of acceptance of coupons was requested).

These cases, from whence came Larson’s prohibition

against “affirmative action,” reflect a familiar limitation on

judicial power. A private party cannot by judicial decree force

a state officer to levy a tax because to do so would “require,

by affirmative official action on the part of the defendants, the

performance of an obligation which belongs to the State in its

political capacity.” Hagood, 117 U.S. at 70. In compelling an

officer to levy a tax, the court would “assum[e] the control of

the administration of the fiscal affairs of the State to the

extent that may be necessary to accomplish the end in view.”

Jumel, 107 U.S. at 722. Such an attempt to control an officer

would place the court on the wrong side of the line thought to

divide “discretionary” from “ministerial” functions. See

Hagood, 117 U.S. at 69 (“ ‘[A] court cannot substitute its own

discretion for that of executive officers in matters belonging

to the proper jurisdiction of the latter.’ ”) (quoting Bd. of

Liquidation, 92 U.S. at 542).

Hawaii v. Gordon, 373 U.S. 57 (1963) (per curiam), a

case upon which counsel for the Cherokee Nation relied at

oral argument, shows the principle at work. In Gordon, the

federal Director of the Bureau of the Budget had advised

federal agencies that the United States was not obliged by the

Hawaii Statehood Act to convey certain federal land to that

State. Hawaii sued the Director, “seeking to obtain an order

requiring him to withdraw this advice to the federal agencies,

determine whether a certain 203 acres of land in Hawaii . . .

was land or properties ‘needed by the United States’ and, if

not needed, to convey this land to Hawaii.” Id. at 58 (quoting

the statute). The Supreme Court dismissed the suit on

21

sovereign immunity grounds. Id. In addition to condemning

the impropriety of using judicial processes to wrest land from

the United States, the Court also noted with disapproval that

“the order requested would require the Director’s official

affirmative action.” Id. This disposition echoed the Solicitor

General’s argument that Hawaii was requesting prohibited

“affirmative action” because the Director, acting in his

personal capacity, lacked the authority to cancel an official

report concerning sovereign property and issue a new one. See

Brief in Opposition to Motion for Leave to File Complaint

20–23, 1962 WL 107667 (June 18, 1962) (citing, inter alia,

Larson’s footnote 11).

Whatever the precise meaning of “affirmative action,” we

think it clear that the Freedmen’s suit against the Cherokee

Nation does not run afoul of the prohibition as used in

footnote 11. The Second Amended Complaint contains a

single request for relief against an officer: an injunction

preventing Chief Smith “from holding further elections

without a vote of all citizens, including the Freedmen.” Pls.’

Second Am. Compl. ¶ 74, J.A. 138. This relief, if granted,

would not oblige the tribe’s officer to use his discretionary

authority to comply with the injunction. To the contrary, it

would prevent the officer from exercising any such authority

in violation of the Thirteenth Amendment or the 1866 Treaty.

The Cherokee Nation complains that the requested relief will

require amendments to the tribe’s constitution and voting

laws, but the Freedmen do not call for any such changes on

the part of the tribe’s officers in their Second Amended

Complaint. That the tribe might ultimately amend its

constitution to bring its elections into conformance with

federal law is irrelevant to our sovereign immunity analysis,

because any such change would not be the direct result of

judicial compulsion. If the tribe pursues these changes, its

discretion will not be steered by the judicial hand. The

22

Freedmen’s suit falls squarely within the principle of Ex parte

Young. See 209 U.S. at 159 (“The general discretion regarding

the enforcement of the laws when and as he deems

appropriate is not interfered with by an injunction which

restrains the state officer from taking any steps towards the

enforcement of an unconstitutional enactment to the injury of

complainant. In such case no affirmative action of any nature

is directed, and the officer is simply prohibited from doing an

act which he had no legal right to do. An injunction to prevent

him from doing that which he has no legal right to do is not an

interference with the discretion of an officer.”).

At bottom, the Cherokee Nation’s reliance on footnote 11

and similar pronouncements reflects wishful thinking.5 The

tribe imagines a world where Ex parte Young suits cannot

proceed if they will have any effect on a sovereign. But that is

what Ex parte Young suits have always done. See, e.g.,

Milliken, 433 U.S. at 288–90 (relying on Ex parte Young in

suit to desegregate public schools); Griffin v. County Sch. Bd.,

377 U.S. 218, 228 (1964) (same); Orleans Parish Sch. Bd. v.

5

The tribe quotes two cases with similar language. See Gordon,

373 U.S. at 58 (“The general rule is that relief sought nominally

against an officer is in fact against the sovereign if the decree would

operate against the latter. Here the order requested would require

the [federal officer’s] official affirmative action, affect the public

administration of government agencies and cause as well the

disposition of property admittedly belonging to the United States.

The complaint is therefore dismissed.”) (citations omitted);

Pennhurst State Sch. & Hosp., 465 U.S. at 101 n.11 (“The general

rule is that a suit is against the sovereign if ‘the judgment sought

would expend itself on the public treasury or domain, or interfere

with the public administration,’ or if the effect of the judgment

would be ‘to restrain the Government from acting, or to compel it

to act.’ ”) (quoting Dugan v. Rank, 372 U.S. 609, 620 (1963)

(internal quotation marks omitted)).

23

Bush, 242 F.2d 156, 160–61 (5th Cir. 1957) (same); Sch. Bd.

v. Allen, 240 F.2d 59, 62–63 (4th Cir. 1956) (same). To credit

the tribe’s position would be to conclude that Larson

overruled Ex parte Young in dicta, in a footnote, without even

citing the case. We doubt whether a case of such monumental

importance could have come to rest in such a shallow grave.

See 17A WRIGHT & MILLER, supra, § 4231 (“Indeed it is not

extravagant to argue that Ex parte Young is one of the three

most important decisions the Supreme Court of the United

States has ever handed down.”). The Supreme Court

mentioned no such change when it recently “confirmed that

the core of the Young doctrine is still alive and well.”

RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER’S THE

FEDERAL COURTS AND THE FEDERAL SYSTEM 1028 (5th ed.

2003) (citing Verizon, 535 U.S. 635). We therefore reject the

Cherokee Nation’s argument.

B.

The Cherokee Nation’s next attempt to fend off Ex parte

Young relies on Seminole Tribe v. Florida, 517 U.S. at 73–76.

In that case, a tribe sued a State and its officers under a

provision of the Indian Gaming Regulatory Act (“IGRA”)

purporting to abrogate state sovereign immunity. After

concluding that Congress lacked power under Article I so to

abrogate, id. at 57–73, the Seminole Tribe Court considered

the tribe’s contention that the suit could proceed against state

officers under Ex parte Young. The Court rejected this

argument because the IGRA provided for a remedial scheme

against the States that was more limited in scope than would

have been a suit under Ex parte Young. See Seminole Tribe,

517 U.S. at 74 (“[W]here Congress has prescribed a detailed

remedial scheme for the enforcement against a State of a

statutorily created right, a court should hesitate before casting

24

aside those limitations and permitting an action against a state

officer based upon Ex parte Young.”).

This Seminole Tribe exception applies if we can discern

an intent to displace Ex parte Young suits through the

establishment of a more limited remedial regime. See Verizon,

535 U.S. at 647–48. The Cherokee Nation argues that article

VII of the 1866 Treaty provides such a remedial scheme

against the tribe, thereby foreclosing suits against the tribe’s

officers. But the treaty provision in question, which opens the

federal courts to suits between “inhabitant[s]” of two different

districts within the tribe’s territory, does not by its terms

provide for any type of suit against the tribe itself. As the

Cherokee Nation itself argues elsewhere in its briefs, the tribe

is not an “inhabitant” of its own territory. Cherokee Nation’s

Br. at 26. The 1866 Treaty does not provide for any remedial

scheme against the Cherokee Nation, much less a “detailed

remedial scheme,” so the Seminole Tribe argument fails.

C.

Finally, the Cherokee Nation argues that the Freedmen

cannot pursue their claims under Ex parte Young because the

requested relief “implicates special sovereignty interests.”

Idaho v. Couer d’Alene Tribe, 521 U.S. 261, 281 (1997). In

Couer d’Alene, the Supreme Court held that Ex parte Young

did not allow a tribe to sue state officers for infringing upon

tribal property rights in violation of federal law, reasoning

that control of submerged lands was a core sovereign interest

of the State. The Cherokee Nation contends that its special

interests in controlling internal governance and defining tribal

membership call for a similar result. We reject this argument.

The Cherokee Nation has no interest in protecting a

sovereignty concern that has been taken away by the United

25

States. As the district court went to great lengths to explain,

Vann, 467 F. Supp. 2d at 66–70, the Thirteenth Amendment

and the 1866 Treaty whittled away the tribe’s sovereignty

with regard to slavery and left it powerless to discriminate

against the Freedmen on the basis of their status as former

slaves. The tribe does not just lack a “special sovereignty

interest” in discriminatory elections — it lacks any sovereign

interest in such behavior.

In addition, we cannot extend Couer d’Alene beyond its

“particular and special circumstances,” 521 U.S. at 287,

which involved the protection of a State’s land. In this regard,

Couer d’Alene closely aligns with earlier decisions holding

that Ex parte Young cannot be used to gain access to the

State’s treasury. See, e.g., Edelman v. Jordan, 415 U.S. 651,

663 (1974) (“[A] suit by private parties seeking to impose a

liability which must be paid from public funds in the state

treasury is barred by the Eleventh Amendment.”) (citing Ford

Motor Co. v. Dep’t of Treasury, 323 U.S. 459 (1945)).

Compared to the interests at stake in Couer d’Alene, whose

historical pedigree is carefully set forth in that opinion, 521

U.S. at 283–87 (citing, inter alia, Magna Carta and the

Institutes of Justinian), the Cherokee Nation’s relatively

newfangled interest in controlling its tribal elections strikes us

as less compelling. We leave it for the Supreme Court to

decide whether to add additional sovereign interests to the

core concerns discussed in Couer d’Alene.

IV.

The district court determined that the Cherokee Nation

was a required party under Federal Rule of Civil Procedure

26

19(a).6 Having concluded that the district court erred in

holding that the Cherokee Nation was amenable to suit, we

reverse the judgment in part. On remand, the district court

must determine whether “in equity and good conscience” the

suit can proceed with the Cherokee Nation’s officers but

without the Cherokee Nation itself. See FED. R. CIV. P. 19(b).

So ordered.

6

We do not review the district court’s Rule 19(a) determination

because the parties have not raised the issue on appeal.