534 F.3d 741 (D.C. Cir. 2008), 07-5024, Vann v. Kempthorne

Docket Nº:07-5024.
Citation:534 F.3d 741
Party Name:Marilyn VANN, et al., Appellees v. Dirk KEMPTHORNE, Secretary of the United States Department of the Interior, et al., Appellees Cherokee Nation, Appellant.
Case Date:July 29, 2008
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 741

534 F.3d 741 (D.C. Cir. 2008)

Marilyn VANN, et al., Appellees


Dirk KEMPTHORNE, Secretary of the United States Department of the Interior, et al., Appellees

Cherokee Nation, Appellant.

No. 07-5024.

United States Court of Appeals, District of Columbia Circuit.

July 29, 2008

Argued May 6, 2008.

Page 742

[Copyrighted Material Omitted]

Page 743

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.

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


Page 744

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.


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 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 nevertheless recognized Chief Smith's election on August 6, 2003, referring any election disputes to the tribal

Page 745

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 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, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993), and Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (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

Page 746

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


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, 8 L.Ed. 483 (1832); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16-17, 8 L.Ed. 25 (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, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978)). That said, Congress may whittle away tribal sovereignty as it sees fit. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 98 S.Ct. 1670, 56 L.Ed.2d 106 (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, 98 S.Ct. 1079 (noting that tribes are “subject to ultimate federal control" ); Fisher v. District Court, 424 U.S. 382, 390, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976) (referring to tribes' “quasi-sovereign status" ); United States v. Kagama, 118 U.S. 375, 381, 6 S.Ct. 1109, 30 L.Ed. 228 (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...

To continue reading