In December 2012, the United States Court of Appeals for the D.C. Circuit rendered an opinion in Vann v. Dept. of Interior which threatens to eviscerate a central principal of Indian law – that Indian tribes enjoy sovereign immunity from suit – with a holding that, under the Ex parte Young doctrine, a plaintiff may proceed against Cherokee tribal officials without the consent of the Cherokee Nation. The opinion further allows suits against the United States affecting Indian tribal interests, which are traditionally barred by the tribe’s status as an indispensable but sovereign immune party, to proceed without the consent of the tribe simply by naming tribal officials.

The underlying issue in the Cherokee litigation recalls the fascinating history of the “Five Civilized Tribes” (Cherokee, Choctaw, Creek, Chickasaw, and Seminole), all of which owned African-American slaves in the southeastern United States. When these tribes were removed to Indian Territory (which became the state of Oklahoma), they brought their slaves with them. The Cherokee Nation sided with the Confederacy during the Civil War (although Cherokee members fought on both sides), and at the war’s conclusion, the United States forced that Nation to make a new treaty in 1866. The new treaty emancipated Cherokee slaves and made them “full citizens” of the Cherokee Nation known as “Freedmen”.

The current dispute traces to actions of the Cherokee Nation, which recently prevented Freedmen from voting in tribal elections and amended the Cherokee Constitution to disenroll the Freedmen altogether.

The Freedmen sought injunctive relief against the United States and the Secretary of the Interior in federal court hoping to invalidate election results pursuant to the Administrative Procedure Act. In 2008, a panel of the D.C. Circuit granted the Cherokee Nation’s motion to dismiss the suit on the basis that the Tribe was an indispensable party whose joinder was barred by sovereign immunity, but also held that under the Ex parte Young doctrine, tribal sovereign immunity did not bar the suit against tribal officers.

The Freedmen then filed a new suit against the United States also naming S. Joe Crittenden in his official capacity as Principal Chief of the Cherokee Nation. The Cherokee Nation again argued that it was an indispensable party whose interests could not be adequately represented by tribal officials, and the D.C. District Court agreed. Last month, the D.C. Circuit reversed the District Court, stating that the Freedmen could proceed against the United States by naming the Principal Chief in his official capacity without joining the Tribe.

The D.C. Circuit panel opinion concluded that the 1866 Treaty, and even the 13^th Amendment, did not abrogate the Tribe’s sovereign immunity. Despite its own narrative describing Congress’s declination to do so, the panel used the judge-made Ex parte Young doctrine to create a private right of action and effect a forfeiture of tribal sovereign immunity.

Many people are sympathetic to the plaintiffs’ civil rights arguments in the Cherokee suit. However, it is contrary to Indian law principles to apply Ex parte Young to reach these issues. The United States Congress has plenary power over Indian affairs under the Indian Commerce Clause of the Constitution, and that power leaves Congress to balance the sometimes competing interests of tribal sovereignty with the rights of tribal members.

The D.C. Circuit panel’s announcement of a drastic diminishment in tribal sovereignty departs from well-established Indian law and injects unwelcome uncertainty into political and business relationships with Indian tribes. When it comes to Indian law, experience has shown us that it is better for the courts to “tread lightly”. 

To read more about the D.C. Circuit’s decision, check out the latest edition ofGaming Legal News.