GM 13-003

Court Rules Ex parte Young Doctrine May Overcome Tribal Sovereign Immunity

On December 14, 2012, the U.S. Court of Appeals for the District of Columbia Circuit ruled that a suit against elected officials of the Cherokee Nation in federal court could proceed despite the Tribe’s sovereign immunity. Vann v. U.S. Dept. of the Interior (No. 11-5322). The court relied on the doctrine of Ex parte Young which is a case that authorizes suits against government officials where the plaintiffs allege continuing unlawful conduct, and seek only to stop the unlawful conduct, and do not seek money damages.

The Vann case revolves around the attempt of descendants of former slaves known as Freedmen, to secure membership in the Cherokee Nation. In lower court proceedings, the court ruled that the Tribe could not be sued because of its sovereign immunity. The lower court further ruled that the Tribe was an indispensable party under Federal Rule of Civil Procedure 19 and that the Tribe’s Chief could not adequately represent the Tribe’s interests. Thus, the case had to be dismissed.

The Court of Appeals reversed. The court agreed that the Tribe was entitled to sovereign immunity and could not be sued without its consent. But the court ruled that the Tribe’s Chief could represent the Tribe’s interest. The court wrote that “the Cherokee Nation and the Principal Chief in his official capacity are one and the same in an Ex parte Young suit … . 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.”

The court noted that the result follows a number of precedents in other courts, including the recent Tenth Circuit decision in Crowe & Dunlevy v. Stidham, 640 F.3d 1140 (10th Cir. 2011) which affirmed an injunction against a tribal court judge under an Ex parte Young theory in favor of a law firm ordered to return fees received in a case it brought before that tribal court. (See our General Memorandum 11-072 of June 10, 2011.) The Doctrine of Ex parte Young is being increasingly used to pursue non-monetary claims against tribal officials in which the plaintiffs allege those officials are either acting outside the scope of their official capacities or are acting in violation of federal law.

We will continue to monitor developments in this case.