Federal Court Seeks Briefing on Whether Tribe Waived Immunity by Removing FMLA Claim against Tribe to Federal Court

Here are the materials in Bodi v. Shingle Springs Band of Miwok Indians (E.D. Cal.):

19 Shingle Springs Motion to Dismiss

31 Bodi Opposition

37 Shingle Springs Reply

40 DCT Order

From the order:

The court is concerned by a predicate question: whether the Tribe waived sovereign immunity by removing the action to federal court.

The issue is an open one in the Ninth Circuit. District courts to have considered it focus their analysis on whether tribal immunity is more analogous to states’ immunity to suit under the Eleventh Amendment, or to foreign nations’ immunity under the Foreign Sovereign Immunities Act of 1976, 27 U.S.C. § 1602 et seq. Courts taking the former position have found removal to constitute waiver, see, e.g., State Eng’r v. S. Fork Band of the Te–Moak Tribe of W. Shoshone Indians, 66 F. Supp. 2d 1163 (D. Nev. 1999), while  courts taking the latter position have not, see, e.g., Ingrassia v. Chicken Ranch Bingo and  Casino, 676 F. Supp. 2d 953 (E.D. Cal. 2009).