Bodi v. Shingle Springs Band of Miwok Indians

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BETH A. BODI, No. 14-16121

Plaintiff-Appellee,

D.C. No.

v. 2:13-cv-01044-

LKK-CKD

SHINGLE SPRINGS BAND OF

MIWOK INDIANS; SHINGLE

SPRINGS TRIBAL HEALTH; OPINION

TIMOTHY ADAMS, as current

Chairperson of the Shingle

Springs Tribal Health Board,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, Senior District Judge, Presiding

Argued and Submitted May 12, 2016

San Francisco, California

Filed August 8, 2016

2 BODI V. SHINGLE SPRINGS BAND OF MIWOK

Before: M. Margaret McKeown, Robert D. Sack *,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Friedland

SUMMARY **

Indian Law

The panel reversed the district court’s denial of a motion

to dismiss claims under the Family and Medical Leave Act

and California law on the ground of tribal sovereign

immunity.

Following the Eleventh Circuit, the panel held that a

federally recognized Indian tribe does not waive its

sovereign immunity from suit by exercising its right to

remove to federal court a case filed against it in state court.

The panel concluded that the act of removal does not express

the clear and unequivocal waiver that is required for a tribe

to relinquish its immunity.

The panel remanded the case, leaving it to the district

court to address on remand any remaining immunity issues.

*

The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.

Court of Appeals for the Second Circuit, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BODI V. SHINGLE SPRINGS BAND OF MIWOK 3

COUNSEL

Christopher F. Wohl (argued), Palmer Kazanjian Wohl

Hodson LLP, Sacramento, California; Paula Yost, Sandra R.

McCandless and Ian Barker, Dentons US LLP, San

Francisco, California; for Defendants-Appellants.

David Nied (argued) and Wendy L. Hillger, Ad Astra Law

Group, LLP, San Francisco, California, for Plaintiff-

Appellee.

Richard D. Monkman, Harry R. Sachse and Peng Wu;

Sonosky, Chambers, Sachse, Miller & Munson, LLP,

Juneau, Alaska; for Amici Curiae Arctic Slope Native

Association, LTD and Puyallup Tribe.

OPINION

FRIEDLAND, Circuit Judge:

This appeal requires us to decide whether a federally

recognized Indian tribe waives its sovereign immunity from

suit by exercising its right to remove to federal court a case

filed against it in state court. This question has divided the

district courts, and it has been reached by only one of our

sister circuits, which held that removal does not, standing

alone, waive tribal immunity. See Contour Spa at the Hard

Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200, 1206–

08 (11th Cir. 2012). We now follow the lead of the Eleventh

Circuit and hold that the act of removal does not express the

clear and unequivocal waiver that is required for a tribe to

relinquish its immunity from suit. Because the district court

held otherwise, we reverse.

4 BODI V. SHINGLE SPRINGS BAND OF MIWOK

I.

The Shingle Springs Band of Miwok Indians (the

“Tribe”) is a federally-recognized Indian tribe located on the

Shingle Springs Rancheria in California. 1 Since about 1995,

the Tribe has owned and operated a full-service health clinic.

The clinic operates under the name Shingle Springs Tribal

Health Program (the “Health Program”) and is run by the

Shingle Springs Tribal Health Board (the “Health Board”),

whose nine directors are all members of the Tribe. Among

its duties, the Health Board is responsible for the hiring and

termination of the clinic Executive Director.

Plaintiff-Appellee Beth A. Bodi is a member of the

Tribe. Bodi began working at the clinic in 1997 and became

its Executive Director in November 2001. In August 2012,

after she attempted to take job-protected leave under the

Family Medical Leave Act (the “FMLA”), 29 U.S.C.

§§ 2601–2654, on account of successive severe health

conditions, the Health Board terminated Bodi’s employment

by way of a letter from its Chairperson. The Tribe later

rehired Bodi as Executive Assistant to the Tribal Chairman,

but she was terminated from that position in April 2013 after

sending a communication to tribal officials complaining

about her earlier termination and noting her willingness to

seek redress in state court.

1

The district court decided Defendants’ motion to dismiss with respect

to the waiver-by-removal issue based solely on the pleadings, and we

therefore “take as true the allegations of the complaint” for purposes of

appeal. Tobar v. United States, 639 F.3d 1191, 1194 (9th Cir. 2011).

The facts presented here are taken from the operative complaint or are

otherwise uncontested.

BODI V. SHINGLE SPRINGS BAND OF MIWOK 5

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 United States District

Court for the Eastern District of California on the basis of

that court’s federal question jurisdiction over the FMLA

claim and supplemental jurisdiction over the state law

claims. One week later, the Tribe moved to dismiss the

lawsuit under Federal Rule of Civil Procedure 12(b)(1) for

lack of subject matter jurisdiction, arguing that the Tribe’s

sovereign immunity protected it from suit. In lieu of a

response, Bodi amended her complaint, adding the Health

Program, the Health Board, and the Health Board’s

Chairperson 2 as defendants.

Defendants filed a renewed motion to dismiss based on

tribal immunity. 3 The district court denied Defendants’

motion on the ground that the Tribe had unequivocally

waived its immunity by removing the action to federal court.

Because it found waiver based on removal, the court did not

reach additional grounds for loss of tribal immunity pressed

by Bodi, including that Congress abrogated tribal immunity

through the FMLA and that the Tribe had waived its

immunity through Tribal Council resolutions to obtain

federal funding to build the health clinic. The court also

declined to reach Defendants’ additional defense that the

2

The operative complaint makes clear that the Chairperson is sued in

an official capacity only.

3

The parties use terms such as “tribal immunity,” “tribal sovereign

immunity,” and “the Tribe’s sovereign immunity” interchangeably in

their briefing, as do we herein.

6 BODI V. SHINGLE SPRINGS BAND OF MIWOK

Tribe’s exclusive right of self-governance barred Bodi’s

claims for injunctive relief under the FMLA. 4

Acknowledging that district courts in this circuit were

split on the waiver-by-removal question, 5 the district court

expressed its hope that Defendants would “appeal [its] ruling

so that a higher court may definitively resolve the issue.”

See Bodi v. Shingle Springs Band of Miwok Indians, 19 F.

Supp. 3d 978, 987 (E.D. Cal. 2014). Defendants did so, and

because the “denial of a claim of tribal sovereign immunity

is immediately appealable” even absent a final judgment,

Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085,

1091 (9th Cir. 2007), that issue is now squarely before us.

II.

We review de novo a district court’s decision on a

motion to dismiss for lack of subject matter jurisdiction. See

Miller v. Wright, 705 F.3d 919, 923 (9th Cir. 2013). We

4

The district court did, however, dismiss all claims against the Health

Program because Bodi failed to controvert evidence that the entity had

no legal existence independent of the Tribe and the Health Board. That

ruling has not been appealed.

5

Compare Ingrassia v. Chicken Ranch Bingo & Casino, 676 F. Supp.

2d 953, 961 (E.D. Cal. 2009) (holding that “removal to federal court does

not waive tribal sovereign immunity”), and Sonoma Falls Developers,

LLC v. Dry Creek Rancheria Band of Pomo Indians of Cal., No. C-01-

4125 VRW, 2002 WL 34727095, at *6–7 (N.D. Cal. Dec. 26, 2002)

(same), with State Eng’r of the State of Nev. v. S. Fork Band of Te-Moak

Tribe of W. Shoshone Indians of Nev., 66 F. Supp. 2d 1163, 1173 (D.

Nev. 1999) (holding that the tribal defendant’s removal of the case

“amount[ed] to a clear and unequivocal waiver of immunity” in federal

court), vacated on reconsideration on other grounds, 114 F. Supp. 2d

1046 (D. Nev. 2000).

BODI V. SHINGLE SPRINGS BAND OF MIWOK 7

likewise review de novo whether an Indian tribe has waived

its immunity from suit. See id.; Demontiney v. United States

ex rel. Dep’t of Interior, Bureau of Indian Affairs, 255 F.3d

801, 805 (9th Cir. 2001).

III.

The gravamen of this appeal is the question whether a

tribe’s removal of a case from state to federal court

constitutes, in and of itself, a valid waiver of its immunity

from suit. 6 The Eleventh Circuit, the only one of our sister

circuits to have reached this issue, held that it does not.

Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla.,

692 F.3d 1200, 1206–08 (11th Cir. 2012). Application of

settled tribal immunity principles and consideration of the

fairness and administrative concerns at stake lead us to the

same conclusion reached by the Eleventh Circuit: that a

tribe’s exercise of its right to remove a case to federal court,

standing alone, does not effect a waiver of its immunity from

suit.

A.

The doctrine of tribal sovereign immunity derives from

the status of Indian tribes as “separate sovereigns pre-

existing the Constitution.” Michigan v. Bay Mills Indian

Cmty., 134 S. Ct. 2024, 2030 (2014) (quoting Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 56 (1978)); see also Santa

Clara Pueblo, 436 U.S. at 55 (“Indian tribes are ‘distinct,

independent political communities, retaining their original

natural rights’ in matters of local self-government.” (quoting

6

The parties agree that the immunity defenses of the Health Board and

its Chairperson are derivative of the Tribe’s immunity so that, if the Tribe

waived its immunity, they must be found to have waived theirs as well.

8 BODI V. SHINGLE SPRINGS BAND OF MIWOK

Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832),

abrogation on other grounds recognized by Nevada v. Hicks,

533 U.S. 353, 361–62 (2001))). “Among the core aspects of

sovereignty that tribes possess . . . is the ‘common-law

immunity from suit traditionally enjoyed by sovereign

powers.’” Bay Mills, 134 S. Ct. at 2030 (quoting Santa

Clara Pueblo, 436 U.S. at 58). The Supreme Court has

characterized that immunity as “a necessary corollary to

Indian sovereignty and self-governance,” id. (quoting Three

Affiliated Tribes of Fort Berthold Reservation v. World

Eng’g, P.C., 476 U.S. 877, 890 (1986)), and we employ a

“strong presumption against [its] waiver,” Demontiney,

255 F.3d at 811.

There are only two ways in which a tribe may lose its

immunity from suit. Congress may abrogate tribal

immunity, because, “[a]s dependents, the tribes are subject

to plenary control by Congress.” Bay Mills, 134 S. Ct. at

2030. Or, of relevance to this appeal, a tribe may itself waive

immunity. Okla. Tax Comm’n v. Citizen Band Potawatomi

Indian Tribe (Potawatomi), 498 U.S. 505, 509 (1991). It is

well settled that “a waiver of [tribal] sovereign immunity

‘cannot be implied but must be unequivocally expressed.’”

Santa Clara Pueblo, 436 U.S. at 58 (quoting United States

v. Testan, 424 U.S. 392, 399 (1976)). 7 That expression must

7

Although Santa Clara Pueblo was addressing congressional

abrogation of immunity, see 436 U.S. at 58–59, we have made clear that

its proscription of waiver-by-implication also applies to expressions by

the tribes themselves, see, e.g., Allen v. Gold Country Casino, 464 F.3d

1044, 1047 (9th Cir. 2006) (reasoning that a tribe’s statements in an

employment application “[a]t most . . . might imply a willingness to

submit to federal lawsuits, but waivers of tribal sovereign immunity may

not be implied”).

BODI V. SHINGLE SPRINGS BAND OF MIWOK 9

also manifest the tribe’s intent to surrender immunity in

“clear” and unmistakable terms. C & L Enters., Inc. v.

Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 418

(2001) (quoting Potawatomi, 498 U.S. at 509). 8 Thus,

absent a clear and unequivocally expressed waiver by a tribe

or congressional abrogation, “[s]uits against Indian tribes are

. . . barred.” Potawatomi, 498 U.S. at 509; see also Bay

Mills, 134 S. Ct. at 2030–31 (“[W]e have time and again

treated the ‘doctrine of tribal immunity [as] settled law’ and

dismissed any suit against a tribe absent congressional

authorization (or a waiver).” (second alteration in original)

(quoting Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S.

751, 756 (1998))).

B.

The question here is thus whether, by removing this case

from state to federal court, the Tribe clearly and

unequivocally expressed its intent to waive its immunity

from suit. We hold that it did not.

1.

8

C & L Enterprises’s clarification that a tribe need not use any

particular words to effect a clear waiver did not alter the settled principle

that the waiver must be explicit and cannot be implied. See 532 U.S. at

420 (rejecting the view that a waiver of tribal immunity “is implicit rather

than explicit only if [the] waiver . . . use[s] the words ‘sovereign

immunity’” (quoting Sokaogon Gaming Enter. Corp. v. Tushie-

Montgomery Assocs., Inc., 86 F.3d 656, 659–60 (7th Cir. 1996))); see

also Demontiney, 255 F.3d at 812–13 & n.5 (holding that provisions in

a contract “establish[ed] only the Tribe’s willingness to face suit in tribal

court and not an explicit waiver of tribal immunity” like that in C & L

Enterprises (emphasis added) (internal quotation marks omitted)).

10 BODI V. SHINGLE SPRINGS BAND OF MIWOK

It is undisputed that the Tribe did not expressly state its

intent to waive its immunity when it removed the case; to the

contrary, it asserted its immunity defense promptly upon

removal to federal court and neither it, nor any Defendant,

ever voiced an intent to litigate on the merits. 9 The only way

in which removal can constitute a waiver, then, is if the

voluntary act of removal is tantamount to an express waiver

of tribal immunity. Bodi urges us to hold that it is, but we

are not persuaded.

By filing a lawsuit, a tribe may of course “consent[] to

the court’s jurisdiction to determine the claims brought” and

thereby agree to be bound by the court’s decision on those

claims. Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1245

(8th Cir. 1995) (quoting F. Cohen, Handbook of Federal

Indian Law 324 (1982)); see also McClendon v. United

States, 885 F.2d 627, 630 (9th Cir. 1989) (“Initiation of a

lawsuit necessarily establishes consent to the court’s

adjudication of the merits of that particular controversy.”).

By consenting to the court’s jurisdiction to determine its own

claims, however, a tribe does not automatically waive its

immunity as to claims that could be asserted against it, even

as to “related matters . . . aris[ing] from the same set of

underlying facts.” McClendon, 885 F.2d at 630. The

Supreme Court has thus emphasized that a tribe’s initiation

of a lawsuit for injunctive relief does not waive its immunity

9

Bodi has not argued that any language in the Notice of Removal

clearly expresses an intent to waive immunity, and we find no such

language. The Notice of Removal merely expressed that the Tribe had a

right to remove under 28 U.S.C. § 1441 and intended to exercise it. If

the Notice had included a clear and unequivocal statement that the Tribe

was waiving its immunity, such a statement may well have been

dispositive of our analysis. Because the Notice in this case contained no

such statement, Bodi argues that it is instead the act of removal that

clearly expresses the Tribe’s intent to waive its immunity.

BODI V. SHINGLE SPRINGS BAND OF MIWOK 11

to counterclaims, including compulsory ones. Potawatomi,

498 U.S. at 509; see also United States v. U.S. Fid. & Guar.

Co., 309 U.S. 506, 513 (1940) (“Possessing [] immunity

from direct suit, we are of the opinion [that a tribe] possesses

a similar immunity from cross-suits.”); McClendon,

885 F.2d at 630 (“[W]e consistently have held that a tribe’s

participation in litigation does not constitute consent to

counterclaims asserted by the defendants in those actions.”).

And we have held that a tribe’s voluntary participation in

administrative proceedings does not waive its immunity in a

subsequent court action filed by another party seeking

review of the agency proceedings. See Kescoli v. Babbitt,

101 F.3d 1304, 1310 (9th Cir. 1996) (holding that tribes “did

not waive their immunity by intervening

in . . . administrative proceedings” because “[a]ny waiver

must be unequivocal and may not be implied”); Quileute

Indian Tribe v. Babbitt, 18 F.3d 1456, 1460 (9th Cir. 1994)

(holding that tribe’s “voluntary participation” in

administrative proceedings “is not the express and

unequivocal waiver of tribal immunity that we require in this

circuit”).

Like filing a complaint, which invites the court to resolve

a specific issue but does not waive immunity as to other

issues, the Tribe’s removal and immediate assertion of

immunity invoked the court’s jurisdiction for the limited

purpose of resolving the Tribe’s “quasi-jurisdictional”

immunity defense. Pistor v. Garcia, 791 F.3d 1104, 1110

(9th Cir. 2015) (alteration omitted) (quoting Pan Am. Co. v.

Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir.

1989)). The Tribe’s action is in this way analogous to a civil

litigant’s filing a motion to dismiss for lack of subject matter

jurisdiction. The litigant thereby invites the court to exercise

that jurisdiction required to determine its own jurisdiction.

See United States v. Ruiz, 536 U.S. 622, 628 (2002) (“[I]t is

12 BODI V. SHINGLE SPRINGS BAND OF MIWOK

familiar law that a federal court always has jurisdiction to

determine its own jurisdiction.”). It would defy logic to

suggest that, in doing so, the Tribe clearly manifested its

intent to waive the very immunity defense that it asserts.

If anything is to be inferred from the Tribe’s removal and

immediate assertion of immunity, it is that the Tribe

preferred to have its immunity defense heard in a federal

forum, not that it intended to waive its immunity and to have

the claims filed against it decided on their merits. But even

if it were possible to read into the act of removal some intent

by the Tribe to relinquish its immunity to suit, we could not

uphold a waiver on that basis because “waivers of tribal

sovereign immunity may not be implied.” Allen, 464 F.3d

at 1047.

2.

To resist this result, Bodi urges us to extend the Supreme

Court’s decision in Lapides v. Board of Regents of the

University System of Georgia, 535 U.S. 613 (2002), in which

the Court held that the defendant State waived its Eleventh

Amendment immunity through the “affirmative litigation

conduct” of “remov[ing] a case to federal court,” id. at 616–

17. The Eleventh Circuit in Contour Spa rejected a similar

attempt to extend Lapides from the Eleventh Amendment

context to the tribal immunity context, 692 F.3d at 1204–08,

and we do as well.

In Lapides, a professor brought suit in Georgia state

court against his employer, the Georgia state university

system, and various university officials, alleging violations

of state and federal law based on the placement of allegations

of sexual harassment in his personnel files. 535 U.S. at 616.

The Georgia legislature had passed a statute expressly

waiving the State’s sovereign immunity to state law claims

BODI V. SHINGLE SPRINGS BAND OF MIWOK 13

filed in state court. See id.; Ga. Code Ann. § 50-21-23.

Georgia removed the case to federal court based on the

federal claim, then promptly moved to dismiss the entire suit

on the basis of its Eleventh Amendment immunity. Lapides,

535 U.S. at 616.

At the outset, the Supreme Court determined that the sole

federal claim, which sought monetary damages under

42 U.S.C. § 1983, was invalid because the State was “not a

‘person’ against whom a § 1983 claim for money damages

might be asserted.” Id. at 617. As a consequence, the

Supreme Court began its opinion by carefully “limit[ing]”

its decision to the peculiar procedural circumstances of that

case—that is, “to the context of state-law claims, in respect

to which the State has explicitly waived immunity from

state-court proceedings.” Id.; see also id. at 617–18

(emphasizing that the Court did not “need [to] address the

scope of waiver by removal in a situation where the State’s

underlying sovereign immunity from suit has not been

waived or abrogated in state court”).

After expressing this limitation, the Court used some

more general language in discussing the consequences of the

State’s decision to remove the case. The Court reasoned that

“[i]t would seem anomalous or inconsistent for a State both

(1) to invoke federal jurisdiction, thereby contending that the

‘Judicial power of the United States’ extends to the case at

hand, and (2) to claim Eleventh Amendment immunity,

thereby denying that the ‘Judicial Power of the United

States’ extends to the case at hand.” Id. at 619. Observing

that it had previously held that a “State’s voluntary

appearance in federal court amounted to a waiver of its

Eleventh Amendment immunity,” id. (citing Clark v.

Barnard, 108 U.S. 436, 447 (1883)), the Court reasoned that

a State similarly expresses its intent to “voluntarily invoke[]

14 BODI V. SHINGLE SPRINGS BAND OF MIWOK

the federal court’s jurisdiction” by “voluntarily agree[ing] to

remove the case to federal court.” Id. at 620. Unable to

discern “something special about removal or about this

case,” the Court concluded that the “general legal principle

requiring waiver” when a State voluntarily invokes judicial

authority “ought to apply.” 10 Id.

As a result of the tension between Lapides’s express

limitations on its own holding and this general language,

courts are divided on whether Lapides indicates that a State

defendant’s removal to federal court waives its Eleventh

Amendment immunity if the State has not waived its

immunity to suit in state court. See Contour Spa, 692 F.3d

at 1205–06 (citing cases). 11 Here, the Tribe—unlike the

10

The Supreme Court rejected the State’s argument that the rule was

changed by Eleventh Amendment cases that “have required a clear

indication of the State’s intent to waive its immunity” because the State’s

“act—removal—is clear.” Lapides, 535 U.S. at 620 (citation omitted).

11

Some circuits have opted for a narrow construction, “tak[ing] the

Supreme Court at its word and regard[ing] the holding in Lapides as

limited to the ‘context of state-law claims, in respect to which the State

has explicitly waived immunity from state-court proceedings.’”

Bergemann v. R.I. Dep’t of Envtl. Mgmt., 665 F.3d 336, 341 (1st Cir.

2011) (quoting Lapides, 535 U.S. at 617). Others have read Lapides to

“state a more general rule.” Bd. of Regents of Univ. of Wis. Sys. v. Phx.

Int’l Software, Inc., 653 F.3d 448, 460–71 (7th Cir. 2011) (relying

largely on Lapides to hold that the State plaintiff waived its immunity to

counterclaims filed against it in federal court); see also Meyers ex rel.

Benzing v. Texas, 410 F.3d 236, 242 (5th Cir. 2005) (discerning “no

evident basis in law or judicial administration for severely limiting

[Lapides’s] general principles . . . to a small sub-set of federal cases[,]

including only state-law claims in respect to which a state has waived

immunity therefrom in state court”); Estes v. Wyo. Dep’t of Transp.,

302 F.3d 1200, 1205 n.1, 1206 (10th Cir. 2002) (holding that State

defendant waived Eleventh Amendment immunity to a federal claim by

removing to federal court). Still others have held that, by removing a

BODI V. SHINGLE SPRINGS BAND OF MIWOK 15

State of Georgia in Lapides—asserts that it retains its

immunity from suit in state court as well as federal court. 12

As the Eleventh Circuit observed in Contour Spa, we

need not resolve here the question how broadly to read

Lapides with respect to a State defendant’s removal of a suit

to federal court, because we hold that Lapides’s waiver-

through-removal reasoning does not apply at all in the

context of tribal immunity. Cf. Contour Spa, 692 F.3d at

case, a State defendant does not waive its general common law immunity

from suit, regardless of whether it would thereby waive its Eleventh

Amendment immunity under Lapides. See, e.g., Beaulieu v. Vermont,

807 F.3d 478, 483–89 (2d Cir. 2015).

In Embury v. King, 361 F.3d 562 (9th Cir. 2004), we extended

Lapides in a limited fashion to hold that a State defendant’s removal

waived its immunity to federal as well as state law claims, including

those claims pled in an amended complaint after removal, id. at 564–65.

Although, in Embury, we characterized Lapides broadly as setting forth

a “straightforward, easy-to-administer rule” that “[r]emoval waives

Eleventh Amendment immunity,” id. at 566, we did not explicitly

consider whether it applied when a State defendant retained its immunity

from suit in state court, as it appears the State defendants there had not

done. See id. at 564 (noting that the State defendants had “concede[d]

that, under Lapides, they [were] stuck with federal jurisdiction over the

state law claims”); see also Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-

Jolly, 572 F.3d 644, 662–63 (9th Cir. 2009) (“Under Embury, the

Director, having waived state court immunity, also waived federal court

sovereign immunity by voluntarily removing the action.”), vacated on

other grounds sub. nom Douglas v. Indep. Living Ctr. of S. Cal., Inc.,

132 S. Ct. 1204 (2012). We have since observed that the question

whether Lapides’s rule applies when a State defendant has not consented

to suit in its own courts remains unresolved in this circuit. See Indep.

Living Ctr., 572 F.3d at 662 n.20.

12

As discussed below, the Tribe conceded at oral argument that it has

waived its immunity from suit in relevant respects in its own tribal court,

but Bodi chose not to file suit in that forum.

16 BODI V. SHINGLE SPRINGS BAND OF MIWOK

1206 (declining to “enter into this conflict . . . over how best

to read Lapides with respect to a state’s removal of a case”

because “an Indian tribe’s sovereign immunity is not the

same thing as a state’s Eleventh Amendment immunity, and

Lapides in no way addressed tribal sovereign immunity”).

Tribal immunity is not synonymous with a State’s

Eleventh Amendment immunity, and parallels between the

two are of limited utility. See, e.g., Three Affiliated Tribes,

476 U.S. at 890 (“Of course, because of the peculiar ‘quasi-

sovereign’ status of the Indian tribes, the Tribe’s immunity

is not congruent with that which the Federal Government, or

the States, enjoy.”). Importantly, States can waive their

Eleventh Amendment immunity through litigation conduct

that would not effect a waiver of tribal sovereign immunity.

For example, a State’s filing of a claim may waive its

Eleventh Amendment immunity to counterclaims that arise

from the same transaction or occurrence, at least in the

bankruptcy context. See In re Lazar, 237 F.3d 967, 978 (9th

Cir. 2001) (holding that “when a state . . . files a proof of

claim in a bankruptcy proceeding, the state waives its

Eleventh Amendment immunity with regard to the

bankruptcy estate’s claims that arise from the same

transaction or occurrence as the state’s claim”). A tribe, in

contrast, does not waive its immunity to a compulsory

counterclaim by voluntarily filing suit. Potawatomi,

498 U.S. at 509–10. In addition, while waiver cannot be

implied with respect to tribal immunity, it can be implied

under certain circumstances with respect to States’ Eleventh

Amendment immunity. See Aholelei v. Dep’t of Pub. Safety,

488 F.3d 1144, 1147 (9th Cir. 2007) (“Express waiver is not

required; a state ‘waive[s] its Eleventh Amendment

immunity by conduct that is incompatible with an intent to

preserve that immunity.’” (first quoting In re Bliemeister,

BODI V. SHINGLE SPRINGS BAND OF MIWOK 17

296 F.3d 858, 861 (9th Cir. 2002); then quoting Hill v. Blind

Indus. & Servs. of Md., 179 F.3d 754, 758 (9th Cir. 1999))).

Indeed, recognizing the important distinctions between

the two forms of immunity, Lapides itself suggested that its

holding was specific to the Eleventh Amendment context.

The Supreme Court explained of cases about federal

immunity and tribal immunity that

[t]hose cases . . . do not involve the Eleventh

Amendment—a specific text with a history

that focuses upon the State’s sovereignty vis-

á-vis the Federal Government. And each

[such] case involves special circumstances

not at issue here, for example, an effort by a

sovereign (i.e., the United States) to seek the

protection of its own courts (i.e., the federal

courts), or an effort to protect an Indian tribe.

Lapides, 535 U.S. at 623. These comments from the

Supreme Court indicate that “waiver rules applicable to

states may not apply in the same way to Indian tribes.”

Contour Spa, 692 F.3d at 1208. Like the Eleventh Circuit,

we decline to interpret Lapides as extending beyond States’

Eleventh Amendment immunity.

Comparisons to foreign sovereign immunity also do not

help Bodi. Bodi argues that the differences between tribal

immunity and the immunity enjoyed by foreign nations

suggest that a tribe waives its immunity by removing to

federal court. In refusing to extend Lapides to the tribal

immunity context, the Eleventh Circuit in Contour Spa

reasoned in part that tribal sovereign immunity is instead

“more analogous to foreign sovereign immunity,” and that

“[t]he significance of the comparison inheres in the fact that

foreign sovereigns do not waive their sovereign immunity by

18 BODI V. SHINGLE SPRINGS BAND OF MIWOK

removing a case to federal court.” Id. at 1206 (citing

28 U.S.C. § 1441(d), Russell Corp. v. Am. Home Assurance

Co., 264 F.3d 1040, 1047 n.4 (11th Cir. 2001), and

Rodriguez v. Transnave Inc., 8 F.3d 284, 289 (5th Cir. 1993)

(holding that removal “by a foreign sovereign is explicitly

authorized by 28 U.S.C. 1441(d) and clearly cannot

constitute waiver”)). Bodi asserts that this comparison

should cut the other way because Congress provided foreign

states an absolute statutory right of removal through the

Foreign Sovereign Immunities Act of 1976, 28 U.S.C.

§ 1441(d), but Congress created no such express removal

right for tribes. Specifically, Bodi points out that foreign

states have a statutory right to remove “[a]ny civil action”

brought against them to federal court, id., while tribes only

have the same right afforded to all other litigants to remove

a case filed against them to federal court based on diversity

or federal question jurisdiction, id. § 1441(a).

This distinction misconceives tribal immunity

principles. Congress, of course, need not affirmatively

preserve tribal immunity; rather “[a]s separate sovereigns

pre-existing the Constitution,” Indian tribes possess

immunity from suit unless expressly abrogated or waived.

Santa Clara Pueblo, 436 U.S. at 56–58. 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. Indeed, the

dedicated removal provision for foreign states, 28 U.S.C.

§ 1441(d), like the general removal provision for all other

parties, 28 U.S.C. § 1441(a), says nothing explicit about loss

or preservation of immunity. Our circuit has not yet reached

the question whether foreign states waive their sovereign

immunity through removal and what, if any, bearing the

BODI V. SHINGLE SPRINGS BAND OF MIWOK 19

dedicated removal provision has on that question, so Bodi’s

analogies to foreign sovereign questions get her nowhere. 13

We are unable to discern any unequivocal expression of

the Tribe’s intent to waive its immunity in its assertion of its

statutory removal right. Ultimately, the absence of such an

expression is dispositive of the tribal waiver-by-removal

question.

C.

We are further persuaded that this result is correct

because of the likely unfairness and administrative

challenges that a contrary holding would entail. In

concluding that the State of Georgia had waived its

immunity by removal, Lapides was motivated by the desire

13

The dedicated removal provision was enacted as part of the Foreign

Sovereign Immunities Act, Pub. L. No. 94-583, 90 Stat. 2891 (1976),

through which Congress also narrowed foreign sovereign immunity by

providing for waiver by implication, see 28 U.S.C. § 1605(a)(1)

(providing that a foreign state is not immune to federal or state court

jurisdiction if it “has waived its immunity either explicitly or by

implication”); see also Corporacion Mexicana de Servicios Maritimios,

S.A. de C.V. v. M/T Respect, 89 F.3d 650, 655 (9th Cir. 1996) (explaining

that this “waiver exception is narrowly construed”). Those of our sister

circuits that have addressed waiver-by-removal for foreign sovereigns

were tasked with determining whether a foreign state waives its

immunity by implication when it exercises its removal right. See

Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279,

1291 n.24 (11th Cir. 1999) (stating that the foreign state defendant’s

“participation in the litigation, such as removing the case to federal court,

. . . did not constitute an implicit waiver”); Rodriguez, 8 F.3d at 287

(explaining that the plaintiff “ha[d] chosen to rely solely on the implied

waiver exception”). Tribes, as we have explained, do not waive their

immunity by implication, so the foreign sovereign removal analogy is

inapposite.

20 BODI V. SHINGLE SPRINGS BAND OF MIWOK

to avoid “inconsistency, anomaly, and unfairness” and to

prevent the “selective use of ‘immunity’ to achieve litigation

advantages.” 535 U.S. at 620. As Contour Spa recognized,

these concerns cut the other way in the tribal immunity

context. 692 F.3d at 1207–08.

First, we join the Eleventh Circuit in its concern that it

would be unfair to put tribes to a choice between asserting

their right to remove to federal court federal claims filed

against them and asserting their tribal immunity defense.

See Contour Spa, 692 F.3d at 1207. If a tribe had to litigate

its immunity defense in state court to avoid waiver through

removal, and that immunity defense proved to be completely

or partially unsuccessful, the tribe would almost certainly

have missed the statutory 30-day deadline to remove the case

to federal court. See 28 U.S.C. § 1446(b). 14 As a result, a

tribe sued in state court on a federal claim to which it

possesses a colorable immunity defense

would face a Morton’s Fork: remove the

federal claim to federal court and waive

immunity or litigate the federal claim in state

court regardless of its federal nature. Either

way, the [tribe] would be compelled to

relinquish a right: either its right to assert

14

We express no opinion on whether a tribe would waive its removal

right by first moving to dismiss on the basis of sovereign immunity in

state court. Resolution Tr. Corp. v. Bayside Developers, 43 F.3d 1230,

1240 (9th Cir. 1995) (“A party, generally the defendant, may waive the

right to remove to federal court where, after it is apparent that the case is

removable, the defendant takes actions in state court that manifest his or

her intent to have the matter adjudicated there, and to abandon his or her

right to a federal forum.”).

BODI V. SHINGLE SPRINGS BAND OF MIWOK 21

immunity from suit or its “right to a federal

forum.” 15

Bergemann, 665 F.3d at 342 (quoting Martin v. Franklin

Capital Corp., 546 U.S. 132, 140 (2005)). The Eleventh

Circuit could find “no sound basis in law or logic for forcing

an Indian tribe to make this choice” between asserting its

removal right and its sovereign immunity defense, Contour

Spa, 692 F.3d at 1207, and we cannot either.

Also problematic is the race to the courthouse that Bodi’s

position on tribal waiver-by-removal would likely inspire.

There are reasons why a tribe may prefer to litigate in federal

court. “[T]ribal immunity ‘is a matter of federal law,” Bay

Mills, 134 S. Ct. at 2031 (quoting Kiowa Tribe, 523 U.S. at

756), and, as such, tribes may wish to avail themselves, when

possible, 16 of the “experience, solicitude, and hope of

uniformity that a federal forum offers on [such] federal

issues,” Grable & Sons Metal Prods., Inc. v. Darue Eng’g &

Mfg., 545 U.S. 308, 312 (2005) (discussing removability of

claims “implicat[ing] significant federal issues”); see

Contour Spa, 692 F.3d at 1207 (recognizing that tribes “have

15

This concern did not exist in Lapides because the State had already

waived its immunity in state court. The Second Circuit in Beaulieu and

the First Circuit in Bergemann refused to extend Lapides to situations in

which the State defendants remained immune in state court, in part

because of the unfairness of forcing States to choose between asserting

their removal right and asserting their immunity defense. See Beaulieu,

807 F.3d at 486–87; Bergemann, 665 F.3d at 342–43.

16

A tribal immunity defense does not provide an independent basis for

federal jurisdiction. See Okla. Tax Comm’n v. Graham, 489 U.S. 838,

841 (1989) (per curiam). The Tribe in this case was instead able to

access a federal forum to litigate its immunity defense because Bodi’s

FMLA claim provided for original federal jurisdiction.

22 BODI V. SHINGLE SPRINGS BAND OF MIWOK

an interest in a uniform body of federal law in [the] area” of

tribal immunity). In addition, state courts have long been at

least perceived as “inhospitable to Indian rights.” Arizona v.

San Carlos Apache Tribe, 463 U.S. 545, 566 (1983).

Faced with losing the opportunity to have their immunity

defenses to federal claims heard in federal court if they were

sued in state court, tribes would be strongly incentivized to

file an affirmative suit for declaratory or injunctive relief in

federal court in order to preserve their ability to assert their

federal immunity defense in that forum to any counterclaim

for damages. This is because, as indicated above, a tribe

does not waive its immunity to related—and even

compulsory—counterclaims by filing a suit for injunctive or

declaratory relief. See Potawatomi, 498 U.S. at 509. Thus,

for instance, in this case, once Bodi threatened to sue,

Defendants would have been incentivized to rush to the

federal courthouse doors to file a suit for declaratory relief

that the FMLA does not apply to the instant dispute, so that

the Tribe could then assert in that forum its federal immunity

defense to any counterclaim for damages filed by Bodi. In

resolving a different jurisdictional dispute involving tribal

rights, the Supreme Court was swayed by the overriding

need to avoid such “wasteful” litigation and an “unseemly

and destructive race to see which forum can resolve the same

issues first.” San Carlos Apache Tribe, 463 U.S. at 567.

That concern militates against recognizing waiver-by-

removal here.

Finally, we note that our holding does not leave plaintiffs

like Bodi without a forum for redress. Defendants conceded

at oral argument that, like the State of Georgia in Lapides,

the Tribe would likely have been amenable to Bodi’s suit in

BODI V. SHINGLE SPRINGS BAND OF MIWOK 23

its own court system—here, Shingle Springs Tribal Court.17

Cf. Shingle Springs Tribal Court Ordinance, art. II, ch. 4,

§ 1(b) (2013) (setting forth the Tribe’s express waiver of

sovereign immunity in tribal court for various purposes,

including labor relations); William Wood, It Wasn’t an

Accident: The Tribal Sovereign Immunity Story, 62 Am. U.

L. Rev. 1587, 1666 (2013) (recognizing that “many (though

not all) Indian tribes make tribal court remedies available for

claims against their governments”); Catherine T. Struve,

Tribal Immunity and Tribal Courts, 36 Ariz. St. L.J. 137,

137, 155–61 (2004) (concluding based on “a survey [of]

caselaw and constitutional and statutory provisions from

selected tribes . . . that many Indian nations currently provide

significant remedies, in tribal court, for claims alleging

misconduct by tribal governments”).

IV.

We join the Eleventh Circuit in holding that an Indian

tribe’s removal of a case from state to federal court does not,

in and of itself, effect a waiver of its tribal immunity. We

therefore reverse the district court’s contrary holding. 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. If the tribal immunity defense is not

dispositive as to all Defendants, the district court also should

17

Defendants expressed no position on whether Bodi could still bring

her claims in tribal court or whether statute-of-limitations hurdles may

now exist, and we do not either.

24 BODI V. SHINGLE SPRINGS BAND OF MIWOK

address on its merits Defendants’ separate defense that the

FMLA is not applicable to the dispute at hand.

REVERSED and REMANDED.