Vann v. United States Department of the Interior

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2012 Decided December 14, 2012

No. 11-5322

MARILYN VANN, ET AL.,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:03-cv-01711)

Alvin Dunn argued the cause for appellants. With him on

the briefs were Jack McKay, Thomas G. Allen, Cynthia Cook

Robertson, and Jonathan Velie.

Ethan G. Shenkman, Attorney, U.S. Department of

Justice, argued the cause for Federal Appellees. On the brief

were William B. Lazarus, Aaron P. Avila, and Kurt G.

Kastorf, Attorneys.

Jonathan P. Guy argued the cause for appellees Cherokee

Nation, et al. With him on the brief were Mark S. Davies and

Christopher M. O'Connell.

2

Before: TATEL, GARLAND, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge

KAVANAUGH.

KAVANAUGH, Circuit Judge: Before the Civil War,

members of the Cherokee Nation had slaves. Those slaves

were freed in 1866 pursuant to a treaty negotiated between the

United States and the Cherokee Nation. The Treaty

guaranteed the former Cherokee slaves and their descendants

– known as the Freedmen – “all the rights of native

Cherokees” in perpetuity. See Treaty with the Cherokee, art.

9, July 19, 1866, 14 Stat. 799. Those rights included the right

to tribal membership and the right to vote in tribal elections.

At some point, the Cherokee Nation decided that the

Freedmen were no longer members of the tribe and could no

longer vote in tribal elections. A group of Freedmen

eventually sued in the U.S. District Court for the District of

Columbia, claiming that the Cherokee Nation had violated the

1866 Treaty.

Because the Cherokee Nation is a sovereign entity, it is

entitled to sovereign immunity and may not be sued without

its consent. See Oklahoma Tax Commission v. Citizen Band

Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509

(1991); Vann v. Kempthorne, 534 F.3d 741, 746 (D.C. Cir.

2008). To avoid the sovereign immunity bar, the Freedmen

plaintiffs sued not only the Cherokee Nation itself but also the

relevant executive official, the Principal Chief, in his official

capacity. Under Supreme Court precedent, that is the

standard approach by which a party may obtain declaratory or

injunctive relief with respect to a sovereign entity

notwithstanding sovereign immunity. See Ex parte Young,

3

209 U.S. 123 (1908); see also, e.g., Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682 (1949); Shields v.

Utah Idaho Central Railroad Co., 305 U.S. 177 (1938).

In opposition to the suit, the Cherokee Nation pointed out

that it was entitled to sovereign immunity, but also that it was

a required party to the suit under Federal Rule of Civil

Procedure 19 and that the Principal Chief could not

adequately represent the Cherokee Nation’s interests.1

Therefore, according to the Cherokee Nation, the suit had to

be dismissed.

The District Court agreed with the Cherokee Nation. The

District Court concluded that the Cherokee Nation was a

required party for purposes of Rule 19, that the Cherokee

Nation’s interests could not be adequately represented by the

Principal Chief, and that the case could not go forward. See

Vann v. Salazar, 2011 WL 4953030, at *3-6, 9 (D.D.C. 2011).

1

Federal Rule of Civil Procedure 19 provides in relevant part:

(a) PERSONS REQUIRED TO BE JOINED IF FEASIBLE.

(1) Required Party. A person who is subject to service of

process and whose joinder will not deprive the court of

subject-matter jurisdiction must be joined as a party if:

(A) in that person’s absence, the court cannot accord

complete relief among existing parties; or

(B) that person claims an interest relating to the

subject of the action and is so situated that disposing

of the action in the person’s absence may:

(i) as a practical matter impair or impede the

person’s ability to protect the interest; or

(ii) leave an existing party subject to a

substantial risk of incurring double, multiple, or

otherwise inconsistent obligations because of

the interest.

4

We reverse. Applying the precedents that permit suits

against government officials in their official capacities, we

conclude that this suit may proceed against the Principal

Chief in his official capacity, without the Cherokee Nation

itself as a party.

The Freedmen have sued the Principal Chief in his

official capacity under the doctrine of Ex parte Young, 209

U.S. 123. The Ex parte Young doctrine allows suits for

declaratory and injunctive relief against government officials

in their official capacities – notwithstanding the sovereign

immunity possessed by the government itself. The Ex parte

Young doctrine applies to Indian tribes as well. Cf. Oklahoma

Tax Commission, 498 U.S. at 514; see generally Larson, 337

U.S. at 689-92; RICHARD H. FALLON, JR., DANIEL J. MELTZER

& DAVID L. SHAPIRO, HART AND WECHSLER’S THE FEDERAL

COURTS AND THE FEDERAL SYSTEM 958-60 (5th ed. 2003).

The Ex parte Young doctrine is based on a “fiction” –

namely, that “when a federal court commands a state official

to do nothing more than refrain from violating federal law, he

is not the State for sovereign-immunity purposes.” Virginia

Office for Protection & Advocacy v. Stewart, 131 S. Ct. 1632,

1638 (2011); see Larson, 337 U.S. 682; Davis v. Gray, 83

U.S. 203 (1872); Osborn v. Bank of United States, 22 U.S.

738 (1824); FALLON ET AL., THE FEDERAL COURTS AND THE

FEDERAL SYSTEM 958-60. The doctrine is called a fiction

because the suit in effect binds the government entity just as

would a suit against the government entity itself. In such

suits, the government in question stands behind the official

“as the real party in interest.” Davis, 83 U.S. at 220. Indeed,

an injunction entered against an officer in his official capacity

is binding on the officer’s successors. See Fed. R. Civ. P.

65(d); Acheson v. Albert, 195 F.2d 573, 576 n.9 (D.C. Cir.

1952) (“The judgment entered in the present case would no

5

doubt be res judicata on the law and facts as against the

Secretary’s successors in office.”); 11A CHARLES ALAN

WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL

PRACTICE AND PROCEDURE § 2956 (2d. ed. 1995) (“A decree

binding a public official generally is valid against that

official’s successors in office.”).

As a practical matter, therefore, the Cherokee Nation and

the Principal Chief in his official capacity are one and the

same in an Ex parte Young suit for declaratory and injunctive

relief. As a result, the Principal Chief can adequately

represent the Cherokee Nation in this suit, meaning that the

Cherokee Nation itself is not a required party for purposes of

Rule 19. By contrast, if we accepted the Cherokee Nation’s

position, official-action suits against government officials

would have to be routinely dismissed, at least absent some

statutory exception to Rule 19, because the government entity

in question would be a required party yet would be immune

from suit and so could not be joined. But that is not how the

Ex parte Young doctrine and Rule 19 case law has developed.

Nor is there any basis for distinguishing this case

involving an American Indian tribe from a run-of-the-mill Ex

parte Young action. Here, the named defendant – the

Principal Chief – is the head of the executive branch of the

Cherokee Nation. See CHEROKEE CONST., art. VII, § 1 (“The

executive power shall be vested in a Principal Chief….”); id.

art. VII, § 9 (“The Principal Chief shall cause the laws of the

Cherokee Nation to be faithfully executed, and shall conduct

in person” all “communications and business of the Cherokee

Nation.”). The claim here is that the Principal Chief – and

through him, the sovereign tribe – is violating federal law.

The defense is that the Principal Chief – and hence the

sovereign tribe – is not violating federal law. This case

presents a typical Ex parte Young scenario.

6

Our analysis is consistent, moreover, with the precedents

of other courts of appeals. In line with the basic Ex parte

Young principles, the Ninth Circuit and Tenth Circuit have

similarly concluded that a tribe is not a required party under

Rule 19 in suits naming a tribal official in his official

capacity. In Salt River Project Agricultural Improvement and

Power District v. Lee, the Ninth Circuit ruled that Navajo

officials responsible for enforcing a challenged tribal law

“adequately represent the Navajo Nation’s interests.” 672

F.3d 1176, 1180 (9th Cir. 2012). The court added that there

was “no suggestion that the officials’ attempt to enforce the

statute here is antithetical to the tribe’s interests” and “no

reason to believe the Navajo official defendants cannot or will

not make any reasonable argument that the tribe would make

if it were a party.” Id. at 1180. In Kansas v. United States,

the Tenth Circuit reached a similar conclusion, noting that

“the potential for prejudice to the Miami Tribe is largely

nonexistent due to the presence in this suit of” the “tribal

officials.” 249 F.3d 1213, 1227 (10th Cir. 2001).

In light of our disposition, we need not reach the

Freedmen’s argument that the Cherokee Nation waived its

sovereign immunity by filing a related suit in Oklahoma. We

reverse the judgment of the District Court and remand for

further proceedings consistent with this opinion.

So ordered.