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Marilyn Vann, et al v. United States Department of the Interior

December 14, 2012

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)

The opinion of the court was delivered by: Kavanaugh, Circuit Judge:

Argued October 18, 2012

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

Opinion for the Court filed by Circuit Judge

KAVANAUGH.

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, 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.*fn1 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).

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


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