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In re Prairie Island Dakota Sioux

United States Court of Appeals, Eighth Circuit
Apr 12, 1994
21 F.3d 302 (8th Cir. 1994)

Summary

holding that while sovereign immunity is jurisdictional, it is "not of the same character as subject matter jurisdiction"

Summary of this case from In re Venable

Opinion

Nos. 94-1051, 94-1155.

Submitted January 14, 1994.

Decided April 12, 1994.

Lawrence J. Hayes, Jr., Eagan, MN, and David J. Goldstein, Larry Levanthal and William John Hardacker, Minneapolis, MN, for petitioner.

James C. Wicka, Minneapolis, MN, for respondent.

Appeal from the United States District Court for the District of Minnesota.

Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.


Petitioners (defendants) are before this court on their simultaneous petition for writ of mandamus and notice of appeal, both stemming from the district court's decision to remand this action to the state court from which it was removed. We dismiss the appeal and deny the petition for writ of mandamus.

The Honorable Donald D. Alsop, Senior United States District Judge for the District of Minnesota.

Plaintiffs sued defendants, including a recognized Indian tribe and various tribal officers, in state court for alleged violations of Title VII, the Minnesota Human Rights Act, and Minnesota law. Pursuant to 28 U.S.C. § 1441, defendants removed the action to federal court. Realizing that an Indian tribe may not be sued under Title VII, plaintiffs moved to amend their complaint to delete the federal law claims. Defendants filed a motion to dismiss on grounds that the district court had no subject matter jurisdiction because the tribe had not waived its sovereign immunity. After granting the motion to amend the complaint, the district court found that it no longer had federal question jurisdiction. The court elected not to exercise its supplemental jurisdiction, and remanded the case based on 28 U.S.C. § 1367(c) and Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). Defendants filed a petition for writ of mandamus and a notice of appeal.

Normally, a remand order is not reviewable by appeal because it is not a final judgment. Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 352-53, 96 S.Ct. 584, 594, 46 L.Ed.2d 542 (1976); 28 U.S.C. § 1447(d). Here, the district court's remand order was based on section 1367(c). It, therefore, is not controlled by section 1447(d) and is reviewable through a petition for writ of mandamus. See Melahn v. Pennock Ins., Inc., 965 F.2d 1497, 1500-01 (8th Cir. 1992).

This court will issue a writ of mandamus, pursuant to the All Writs Act, 28 U.S.C. § 1651, when it finds that there is no other adequate means to obtain relief and that the district court's order is a clear abuse of discretion or usurpation of judicial power. In re Shalala, 996 F.2d 962, 964 (8th Cir. 1993). The district court correctly exercised its discretion to remand the remaining exclusively state law case after eliminating the federal causes of action. See Carnegie-Mellon, 484 U.S. at 350, 108 S.Ct. at 619; 28 U.S.C. § 1367(c).

Defendants, however, equate sovereign immunity and subject matter jurisdiction and argue that the district court abused its discretion in not first considering whether they were entitled to sovereign immunity. Indian tribes possess the common-law immunity traditionally enjoyed by sovereign powers. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978); Turner v. United States, 248 U.S. 354, 358, 39 S.Ct. 109, 110, 63 L.Ed. 291 (1919). In addition, sovereign immunity is jurisdictional in nature. Federal Deposit Ins. Corp. v. Meyer, ___ U.S. ___, ___, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994); Puyallup Tribe, Inc. v. Washington Dep't of Game, 433 U.S. 165, 172, 97 S.Ct. 2616, 2621, 53 L.Ed.2d 667 (1977). Sovereign immunity, however, is not of the same character as subject matter jurisdiction. See 13 Charles A. Wright et al., Federal Practice and Procedure § 3524 at 167-70 (1984 1993 Supp.). First of all, tribal sovereign immunity may be waived in certain circumstances and is subject to the plenary power of Congress. See Santa Clara Pueblo, 436 U.S. at 58-59, 98 S.Ct. at 1677. Lack of subject matter jurisdiction, on the other hand, may not be waived. Bueford v. Resolution Trust Corp., 991 F.2d 481, 485 (8th Cir. 1993); Fed.R.Civ.P. 12(h)(3). Second, sovereign immunity operates essentially as a party's possible defense to a cause of action. Weeks Const., Inc. v. Oglala Sioux Housing Auth., 797 F.2d 668, 671-72 (8th Cir. 1986). In contrast, subject matter jurisdiction is primary and an absolute stricture on the court. Leroy v. Great Western United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 2714-15, 61 L.Ed.2d 464 (1979). Finally, a waiver of sovereign immunity cannot extend a court's subject matter jurisdiction. Weeks, 797 F.2d at 672.

We find, therefore, that sovereign immunity is a jurisdictional consideration separate from subject matter jurisdiction and that the district court did not abuse its discretion in first determining it lacked federal question jurisdiction and then remanding this action. See Oklahoma Tax Comm'n v. Graham, 489 U.S. 838, 840-42, 109 S.Ct. 1519, 1521, 103 L.Ed.2d 924 (1989) (per curiam) (reversing lower court after finding lack of subject matter jurisdiction and refusing to reach tribal sovereign immunity issue); Weeks, 797 F.2d at 672 (treating sovereign immunity and subject matter jurisdiction as separate inquiries). Accordingly, mandamus will not issue and the appeal is dismissed.


Summaries of

In re Prairie Island Dakota Sioux

United States Court of Appeals, Eighth Circuit
Apr 12, 1994
21 F.3d 302 (8th Cir. 1994)

holding that while sovereign immunity is jurisdictional, it is "not of the same character as subject matter jurisdiction"

Summary of this case from In re Venable

holding that while sovereign immunity is jurisdictional, it is "not of the same character as subject matter jurisdiction"

Summary of this case from In re Mitchell

holding tribal sovereign immunity is separate from subject matter jurisdiction as it can be waived while subject matter jurisdiction cannot

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finding that tribal "sovereign immunity is a jurisdictional consideration separate from subject matter jurisdiction"

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affirming remand of removed case under § 1367(c) andCohill where the plaintiff amended complaint to delete federal-law claims

Summary of this case from Lundeen v. Canadian Pacific Railway Company

recognizing the jurisdictional nature of tribal immunity

Summary of this case from Amerind Risk Management Corp. v. Malaterre

explaining that in Weeks our court treated "sovereign immunity and subject matter jurisdiction as separate inquiries"

Summary of this case from Dillon v. Yankton Sioux Tribe

explaining that "sovereign immunity is jurisdictional in nature" but that it "is not of the same character as subject matter jurisdiction" because sovereign immunity can be waived and it operates as a defense to a cause of action

Summary of this case from Attorney's Process & Investigation Services, Inc. v. Sac & Fox Tribe
Case details for

In re Prairie Island Dakota Sioux

Case Details

Full title:IN RE PRAIRIE ISLAND DAKOTA SIOUX; FREEMAN JOHNSON, INDIVIDUALLY AND AS…

Court:United States Court of Appeals, Eighth Circuit

Date published: Apr 12, 1994

Citations

21 F.3d 302 (8th Cir. 1994)

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