Vann v. Kempthorne

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2008 Decided July 29, 2008

No. 07-5024

MARILYN VANN, ET AL.,
APPELLEES

v.

DIRK KEMPTHORNE, SECRETARY OF THE UNITED STATES
DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES

CHEROKEE NATION,
APPELLANT

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.
 2
Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

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.

I.

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
 3
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
 4
nevertheless recognized Chief Smith’s election on August 6,
2003, referring any election disputes to the tribal 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

1
The words “necessary” and “indispensable” have become obsolete
in the Rule 19 context as a result of stylistic changes to the Rule
that have occurred since the proceedings in the district court. See
 5
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
(1993), and Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546 (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 Cherokee
Nation v. Babbitt, 117 F.3d 1489, 1497–98 (D.C. Cir. 1997).

Republic of Philippines v. Pimentel, No. 06-1204, slip op. at 2 (U.S.
June 12, 2008) (noting the replacement in Rule 19 of “necessary”
with “required,” and the deletion of “indispensable”).
 6

II.

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 (1832); Cherokee Nation v.
Georgia, 30 U.S. (5 Pet.) 1, 16–17 (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 (1978)). That said, Congress
may whittle away tribal sovereignty as it sees fit. See Santa
Clara Pueblo v. Martinez, 436 U.S. 49, 56 (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 (noting that
tribes are “subject to ultimate federal control”); Fisher v.
District Court, 424 U.S. 382, 390 (1976) (referring to tribes’
“quasi-sovereign status”); United States v. Kagama, 118 U.S.
375, 381 (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 v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998);
Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe,
 7
498 U.S. 505, 509 (1991); Santa Clara Pueblo, 436 U.S. at
58–59; Puyallup Tribe, Inc. v. Dep’t of Game, 433 U.S. 165,
172 (1977); United States v. U.S. Fid. & Guar. Co., 309 U.S.
506, 512 (1940); Wichita & Affiliated Tribes v. Hodel, 788
F.2d 765, 771 (D.C. Cir. 1986). This immunity flows from a
tribe’s sovereign status in much the same way as it does for
the States2 and for the federal government. See Seminole
Tribe v. Florida, 517 U.S. 44, 54 (1996) (noting the
“presupposition . . . that ‘ “[i]t is inherent in the nature of
sovereignty not to be amenable to the suit of an individual
without its consent” ’ ”) (quoting Hans v. Louisiana, 134 U.S.
1, 13 (1890) (quoting THE FEDERALIST No. 81 (Alexander
Hamilton) (Clinton Rossiter ed., 1961))). Congress’s power to
limit the scope of a tribe’s sovereignty extends to tribal
sovereign immunity. “This aspect of tribal sovereignty, like
all others, is subject to the superior and plenary control of
Congress.” Santa Clara Pueblo, 436 U.S. at 58; see also
Okla. Tax Comm’n, 498 U.S. at 510 (“Congress has always
been at liberty to dispense with such tribal immunity or to
limit it.”). But abrogation of tribal sovereign immunity
requires an explicit and unequivocal statement to that effect.
C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe,
532 U.S. 411, 418 (2001) (“To abrogate tribal immunity,
Congress must ‘unequivocally’ express that purpose.”)
(quoting Santa Clara Pueblo, 436 U.S. at 58); Cherokee
Nation, 117 F.3d at 1498 (“Any waiver of a tribe’s sovereign
immunity, whether by Congress or by the tribe itself, ‘cannot
be implied but must be unequivocally expressed.’ ”) (quoting
Santa Clara Pueblo, 436 U.S. at 58).

Has there been an abrogation of tribal sovereign
immunity in our case? The district court concluded that

2
The States also count the Eleventh Amendment as a source of
sovereign immunity. See U.S. CONST. amend. XI.
 8
“Congress clearly indicated its intent to abrogate the
Cherokee Nation’s immunity with respect to violations of the
Thirteenth Amendment as evidenced by the Treaty of 1866.”
Vann v. Kempthorne, 467 F. Supp. 2d 56, 70 (D.D.C. 2006).
The district court reasoned as follows. See id. at 66–70. The
Thirteenth Amendment, which applies to Indian tribes,
eradicates the badges and incidents of slavery. The 1866
Treaty implements similar principles for the Cherokee Nation.
See 1866 Treaty, art. IX (abolishing slavery and granting
Freedmen “all the rights of native Cherokees”); id. art. VI
(declaring that the Cherokee Nation’s laws “shall be uniform
throughout said nation”); id. art. XII (acknowledging
supremacy of federal law). Later historical developments,
including an 1888 statute forcing the Cherokee Nation to
share its assets with the Freedmen, further demonstrate
Congress’s intent to protect the Freedmen against
discrimination. “By repeatedly imposing such limitations on
the sovereignty of the Cherokee Nation in order to protect the
Freedmen, Congress has unequivocally indicated its intent to
abrogate the tribe’s immunity with regard to racial oppression
prohibited by the Thirteenth Amendment.” Vann, 467 F.
Supp. 2d at 69. Denying the Freedmen the right to vote in
tribal elections violates the Thirteenth Amendment and the
1866 Treaty, so the Cherokee Nation cannot claim tribal
sovereign immunity against a suit complaining of such a
badge and incident of slavery.

The district court is mistaken to treat every imposition
upon tribal sovereignty as an abrogation of tribal sovereign
immunity.3 Sovereignty and immunity are related, Alden v.
3
The Freedmen make a similar error in arguing that the “overriding
interest” of the United States implicitly abrogates tribal sovereign
immunity. Freedmen’s Br. at 9–15 (citing Wheeler, 435 U.S. at
323; Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209–10
(1978); Washington v. Confederated Tribes of the Colville Indian
 9
Maine, 527 U.S. 706, 715 (1999), the latter being an attribute
of the former, P.R. Aqueduct & Sewer Auth., 506 U.S. at 146.
But it is possible to cut back sovereignty in a way that leaves
sovereign immunity intact. Cf. Kiowa Tribe, 523 U.S. at 755
(“To say substantive state laws apply to off-reservation
conduct, however, is not to say that a tribe no longer enjoys
immunity from suit. . . . There is a difference between the
right to demand compliance with state laws and the means
available to enforce them.”). Congress can impose substantive
constraints upon a tribe without subjecting the tribe to suit in
federal court to enforce those constraints, as the Supreme
Court made clear in Santa Clara Pueblo. In that case, an
individual Indian sued her tribe in federal court, alleging
gender discrimination in violation of the equal protection
guarantee of the Indian Civil Rights Act (“ICRA”), 25 U.S.C.
§ 1302. Despite the ICRA’s imposition of substantive
constraints upon the tribe, the Supreme Court held the suit
barred by tribal sovereign immunity and sent the plaintiff to
pursue her claim in tribal court. See 436 U.S. at 58–59; see
also Nero v. Cherokee Nation, 892 F.2d 1457, 1461 (10th Cir.
1989) (noting the Santa Clara Pueblo distinction between a
substantive constraint and an abrogation of sovereign
immunity). Absent explicit and unequivocal language to the
contrary, the imposition of substantive constraints upon a
tribe’s sovereignty cannot be interpreted as an abrogation of
its sovereign immunity.

We must determine for ourselves whether anything in the
Thirteenth Amendment or the 1866 Treaty worked an
abrogation of the Cherokee Nation’s sovereign immunity.

Reservation, 447 U.S. 134, 153 (1980)). The cases cited speak to
implicit limitations on tribal sovereignty and have nothing to do
with tribal sovereign immunity, which is not subject to implicit
abrogation. Santa Clara Pueblo, 436 U.S. at 58.
 10
Again, we will only acknowledge such an abrogation if the
text is express and unequivocal. See Santa Clara Pueblo, 436
U.S. at 59 (holding the ICRA not to abrogate tribal sovereign
immunity because “[n]othing on the face of Title I of the
ICRA purports to subject tribes to the jurisdiction of the
federal courts in civil actions for injunctive or declaratory
relief”); Fla. Paraplegic, Ass’n v. Miccosukee Tribe, 166 F.3d
1126, 1131 (11th Cir. 1999) (holding the Americans with
Disabilities Act not to abrogate tribal sovereign immunity and
declaring, “Congress abrogates tribal immunity only where
the definitive language of the statute itself states an intent
either to abolish Indian tribes’ common law immunity or to
subject tribes to suit under the act”); Bassett v. Mashantucket
Pequot Tribe, 204 F.3d 343, 357 (2d Cir. 2000) (holding the
Copyright Act not to abrogate tribal sovereign immunity,
where nothing on the statute’s face could be so construed).4

We find no express and unequivocal abrogation of the
Cherokee Nation’s sovereign immunity in the texts upon

4
For examples of statutes that satisfy the abrogation standard, see
COHEN’S HANDBOOK, § 7.05[1][b] (citing, inter alia, the Indian
Depredation Act, 26 Stat. 851 (1891) (conferring jurisdiction upon
Court of Claims to adjudicate “All claims for property of citizens of
the United States taken or destroyed by Indians belonging to any
band, tribe, or nation, in amity with the United States, without just
cause or provocation on the part of the owner or agent in charge,
and not returned or paid for”); the ICRA’s habeas corpus provision,
25 U.S.C. § 1303 (“The privilege of the writ of habeas corpus shall
be available to any person, in a court of the United States, to test the
legality of his detention by order of an Indian tribe.”); and the
Indian Gaming Regulatory Act, 25 U.S.C. § 2710(d)(7)(A)(ii)
(“The United States district courts shall have jurisdiction over . . .
any cause of action initiated by a State or Indian tribe to enjoin a
class III gaming activity located on Indian lands and conducted in
violation of any Tribal-State compact . . . .”)).
 11
which the Freedmen rely. Nothing in § 1 of the Thirteenth
Amendment so much as hints at a federal court suit by a
private party to enforce the prohibition against badges and
incidents of slavery against Indian tribes. U.S. CONST. amend.
XIII, § 1 (“Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party shall have been
duly convicted, shall exist within the United States, or any
place subject to their jurisdiction.”). Although § 2 of the
Thirteenth Amendment gives Congress the power to generate
express and unequivocal language abrogating tribal sovereign
immunity to allow for such suits, that promise remains
unfulfilled absent some further legislative enactment. Id. § 2
(“Congress shall have power to enforce this article by
appropriate legislation.”). The 1866 Treaty similarly lacks any
clear abrogation of tribal sovereign immunity, as the Tenth
Circuit correctly concluded in Nero, 892 F.2d at 1461. The
Freedmen point to articles VI, IX, and XII of the 1866 Treaty,
but these say nothing about federal court suits against the
Cherokee Nation.

The Freedmen argue that our search for intent to abrogate
is misguided because the Thirteenth Amendment and the 1866
Treaty predate the doctrine of tribal sovereign immunity, such
that the drafters of those texts could not have foreseen the
interpretive rule requiring express and unequivocal
abrogation. Freedmen’s Br. at 15–20. This argument
misapprehends the nature of tribal sovereign immunity, which
is not the product of any enactment but an inherent attribute
of a tribe’s sovereignty. Tribal sovereign immunity existed at
the Founding, as surely as did tribal sovereignty, and our only
concern is whether the Thirteenth Amendment or the 1866
Treaty later abrogated that immunity. The unequivocal-
abrogation rule reflects the belief, as true in the nineteenth
century as it is today, that lawmakers do not lightly discard
 12
sovereign immunity. We see no reason to depart from the
established interpretive rule based on the vintage of the texts.

Because nothing in the Thirteenth Amendment or the
1866 Treaty amounts to an express and unequivocal
abrogation of tribal sovereign immunity, the Cherokee Nation
cannot be joined in the Freedmen’s federal court suit without
the tribe’s consent. We reverse the district court’s
determination to the contrary.

III.

Having found the tribe’s sovereign immunity intact, we
must now assess whether tribal officers enjoy the same
immunity from suit as does the tribe itself. We do not
approach this question from scratch, for Ex parte Young, 209
U.S. 123 (1908), and related cases have come to apply to
questions of tribal sovereign immunity. See Santa Clara
Pueblo, 436 U.S. at 59 (citing Ex parte Young); Bassett, 204
F.3d at 358 (citing Ex parte Young); Tenneco Oil Co. v. Sac &
Fox Tribe of Indians, 725 F.2d 572, 574 (10th Cir. 1984)
(citing Larson v. Domestic & Foreign Commerce Corp., 337
U.S. 682 (1949)); cf. Recent Case, 79 HARV. L. REV. 851, 852
(1966) (suggesting extension of Ex parte Young to tribal
sovereign immunity context).

“The basic doctrine of Ex parte Young can be simply
stated. A federal court is not barred by the Eleventh
Amendment from enjoining state officers from acting
unconstitutionally, either because their action is alleged to
violate the Constitution directly or because it is contrary to a
federal statute or regulation that is the supreme law of the
land.” 17A CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 4232 (3d ed. 2007) [hereinafter
WRIGHT & MILLER] (citations omitted). In Ex parte Young, a
 13
private party was allowed to pursue an injunction in federal
court against Minnesota’s attorney general to prohibit his
enforcement of a state statute alleged to violate the Fourteenth
Amendment. This result rested upon the fiction that the suit
went against the officer and not the State, thereby avoiding
sovereign immunity’s bar. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 114 n.25 (1984) (noting the fiction);
Kenneth Culp Davis, Suing the Government by Falsely
Pretending to Sue an Officer, 29 U. CHI. L. REV. 435 (1962)
(same). The officer, so the reasoning goes, cannot take refuge
in the State’s immunity if he contravenes federal law, and is
“stripped of his official or representative character and . . .
subjected in his person to the consequences of his individual
conduct.” Ex parte Young, 209 U.S. at 159–60. The Supreme
Court recently confirmed the ease with which this stripping
rationale can be applied. “In determining whether the doctrine
of Ex parte Young avoids an Eleventh Amendment bar to suit,
a court need only conduct a straightforward inquiry into
whether [the] complaint alleges an ongoing violation of
federal law and seeks relief properly characterized as
prospective.” Verizon Md. Inc. v. Pub. Serv. Comm’n, 535
U.S. 635, 645 (2002) (citation and quotation marks omitted).

Applying the principle of Ex parte Young in the matter
before us, we think it clear that tribal sovereign immunity
does not bar the suit against tribal officers. Santa Clara
Pueblo, which relied on Ex parte Young to hold a tribal
officer “not protected by the tribe’s immunity from suit,”
dictates this result. See 436 U.S. at 59. The Freedmen allege
that the Cherokee Nation’s officers are in violation of the
Thirteenth Amendment and the 1866 Treaty, and seek an
injunction preventing Chief Smith “from holding further
elections without a vote of all citizens, including the
Freedmen.” Pls.’ Second Am. Compl. ¶ 74, J.A. 138. Faced
with allegations of ongoing constitutional and treaty
 14
violations, and a prospective request for injunctive relief,
officers of the Cherokee Nation cannot seek shelter in the
tribe’s sovereign immunity.

In an attempt to avoid the straightforward application of
Ex parte Young, the Cherokee Nation raises three arguments,
which we consider in turn. Finding none of them persuasive,
we conclude that sovereign immunity is no bar to the
Freedmen’s suit against the tribe’s officers, and therefore
affirm the district court’s determination to the same effect.

A.

Invoking Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682 (1949), the Cherokee Nation argues that
tribal sovereign immunity bars the suit against its officers
because the requested relief really runs against the tribe itself.
This is reminiscent of the losing argument in Ex parte Young.
See 209 U.S. at 142, 149 (rejecting state officer’s “objection
. . . that the suit is, in effect, one against the State of
Minnesota”). The argument is no more persuasive a century
later. Due to an unfortunate footnote in the Larson opinion,
however, we must explain our reasoning at some length.

Larson involved a contract dispute between the federal
War Assets Administration and a private party to whom it had
sold surplus coal, the Domestic & Foreign Commerce
Corporation. The War Assets Administration understood the
contract of sale to require payment in advance of delivery of
the coal. When the Corporation insisted instead on depositing
the funds upon receipt, the War Assets Administration
considered the contract breached and sold the coal to a third
party. The Corporation sued in federal court for declaratory
and injunctive relief to prevent the federal Administrator from
 15
delivering the coal to the third party, claiming entitlement to
the coal under the original contract of sale.

The Supreme Court considered whether the sovereign
immunity of the United States barred the suit against a federal
officer. The Court acknowledged Ex parte Young’s stripping
rationale, albeit with no direct citation to that case.

There may be, of course, suits for specific relief
against officers of the sovereign which are not suits
against the sovereign. . . . [W]here the officer’s
powers are limited by statute, his actions beyond those
limitations are considered individual and not sovereign
actions. . . . His actions are ultra vires his authority
and therefore may be made the object of specific
relief. . . . A second type of case is that in which the
statute or order conferring power upon the officer to
take action in the sovereign’s name is claimed to be
unconstitutional. . . . Here, too, the conduct against
which specific relief is sought is beyond the officer’s
powers and is, therefore, not the conduct of the
sovereign. . . . These two types have frequently been
recognized by this Court as the only ones in which a
restraint may be obtained against the conduct of
Government officials.

Larson, 337 U.S. at 689–90 (citing Phila. Co. v. Stimson, 223
U.S. 605, 620 (1912) (citing Ex parte Young)); see also id. at
704 (“Under our constitutional system, certain rights are
protected against governmental action and, if such rights are
infringed by the actions of officers of the Government, it is
proper that the courts have the power to grant relief against
those actions.”). The stripping rationale did not apply to the
Administrator because the Corporation’s breach-of-contract
claim did not show him to have acted outside his authority.
 16
See id. at 691–92. Accordingly, the Court held the suit barred
by federal sovereign immunity, concluding that the suit was
actually against the United States and not its officer. Id. at
687–88.

Given the obvious distinction between our own case and
the one just described, the Cherokee Nation’s reliance on
Larson seems curious. Unlike the federal officer in Larson,
who was only alleged to have breached a contract, the tribal
officers in our case are said to have violated the Thirteenth
Amendment and the 1866 Treaty. These allegations bring our
case within the stripping rationale set forth in Ex parte Young
and described in Larson, such that tribal sovereign immunity
should not bar the Freedmen’s suit against the officers of the
Cherokee Nation.

Undeterred, the Cherokee Nation pins its hopes to
footnote 11 of the Larson opinion, which provides:

Of course, a suit may fail, as one against the
sovereign, even if it is claimed that the officer being
sued has acted unconstitutionally or beyond his
statutory powers, if the relief requested can not be
granted by merely ordering the cessation of the
conduct complained of but will require affirmative
action by the sovereign or the disposition of
unquestionably sovereign property. North Carolina v.
Temple, 134 U.S. 22 (1890).

Larson, 337 U.S. at 691 n.11. The Cherokee Nation claims
that the Freedmen improperly seek “affirmative action” on the
part of tribal officers. The Second Amended Complaint
requests an injunction preventing Chief Smith “from holding
further elections without a vote of all citizens, including the
Freedmen.” Pls.’ Second Am. Compl. ¶ 74, J.A. 138.
 17
According to the tribe, this injunction “would restrain the
Nation from holding its elections and require the Nation to
take action to amend its constitution and voting laws to
include Plaintiffs as citizens with voting rights.” Cherokee
Nation’s Br. at 50. At oral argument, counsel for the tribe said
further, “what the relief would do is, it would paralyze the
Nation, it would stop the Nation from having any elections,
unless the Nation took affirmative steps to amend its
constitution.” Oral Arg. Recording at 8:27–8:37. Citing
decisions of our sister circuits, Fletcher v. United States, 116
F.3d 1315, 1324 (10th Cir. 1997); Shermoen v. United States,
982 F.2d 1312, 1320 (9th Cir. 1992), the tribe tells us that
“[t]he Ex parte Young fiction simply does not survive
Plaintiffs’ requested relief.” Cherokee Nation’s Br. at 50.

Whatever the Larson Court meant when it referred to
“affirmative action,” we conclude that this dicta does not limit
the force of Ex parte Young in the case at hand. We begin
with an examination of footnote 11, a Delphic pronouncement
that has been the subject of great judicial and scholarly
attention. See, e.g., Knight v. New York, 443 F.2d 415, 420
(2d Cir. 1971) (Friendly, J.) (“The Larson footnote has
become the subject of microscopic scholarly scrutiny.”);
David P. Currie, Sovereign Immunity and Suits Against
Government Officers, 1984 SUP. CT. REV. 149, 158 (“There
was a grain of truth in this wholly gratuitous dictum, but its
principal effect was to sow confusion.”); David L. Shapiro,
Wrong Turns: The Eleventh Amendment and the Pennhurst
Case, 98 HARV. L. REV. 61, 74 n.80 (1984) (referring to “the
Larson Court’s troublesome footnote 11”); Antonin Scalia,
Sovereign Immunity and Nonstatutory Review of Federal
Administrative Action: Some Conclusions from the Public-
Lands Cases, 68 MICH. L. REV. 867, 875 n.32 (1970) (noting
the possible significance of the Supreme Court’s failure to
cite footnote 11 in Malone v. Bowdoin, 369 U.S. 643 (1962),
 18
which otherwise relied heavily on Larson). We then consider
whether the supposed prohibition against “affirmative action”
in footnote 11 reaches the Freedmen’s suit.

Before going any further, however, we note that the
continuing force of Larson’s footnote 11 is not free from
doubt. The Supreme Court did not mention the supposed
prohibition against “affirmative action” in its recent treatment
of the Ex parte Young doctrine in Verizon, 535 U.S. at 645–
48, its discussion of tribal sovereign immunity in Santa Clara
Pueblo, 436 U.S. at 58–59, or its decisions allowing
affirmative injunctions against state officers under Ex parte
Young, e.g., Milliken v. Bradley, 433 U.S. 267 (1977). Ill-
positioned as we are to issue retractions for the highest court
in the land, we will assume arguendo that footnote 11 is not a
dead letter circa 2008. But our discussion should not be
mistaken for an endorsement of its continuing vitality, and
any court that would rely on footnote 11 to bar an Ex parte
Young suit would have to grapple with the issue of its possible
obsolescence.

Taking a cue from Professor Jaffe, we begin by noting
the Court’s use of may — as in, “a suit may fail . . . if the
relief requested . . . will require affirmative action by the
sovereign,” Larson, 337 U.S. at 691 n.11 (emphasis added) —
rather than more commanding alternatives like must or will or
shall. Louis L. Jaffe, Suits Against Governments and Officers:
Sovereign Immunity, 77 HARV. L. REV. 1, 34 (1963) (noting
that if “may is read as may and not as must, it is
unobjectionable,” but that a contrary reading would place
footnote 11 at odds with “well-established doctrines”). Only
by embracing this equivocation can we read footnote 11 in
harmony with prior pronouncements. Consider the following
statement from Ex parte Young: “There is no doubt that the
court cannot control the exercise of the discretion of an
 19
officer. It can only direct affirmative action where the officer
having some duty to perform not involving discretion, but
merely ministerial in its nature, refuses or neglects to take
such action. In that case the court can direct the defendant to
perform this merely ministerial duty.” 209 U.S. at 158
(emphasis added) (citing Bd. of Liquidation v. McComb, 92
U.S. 531, 541 (1875)). This language suggests that
“affirmative action” is not universally condemned in suits
against officers, and that some “affirmative action” is
permissible. Footnote 11 is not to the contrary, provided we
read may to mean what it says.

What, then, of that type of “affirmative action” that
Larson purports to forbid? Footnote 11 cites a single case,
North Carolina v. Temple, 134 U.S. 22 (1890), which
concerned a private bondholder’s suit to compel a state
auditor to levy a tax, the proceeds of which would be used to
pay interest to holders of state bonds. In a half-page opinion,
the Supreme Court dismissed the suit on sovereign immunity
grounds. Id. at 30 (“We think it perfectly clear that the suit
against the auditor in this case was virtually a suit against the
State of North Carolina. In this regard it comes within the
principle of the cases of [Jumel], [Cunningham], [Hagood],
and [In re Ayers].”). Temple, in turn, cited four cases
involving bondholders. See Louisiana v. Jumel, 107 U.S. 711,
720–23 (1883) (holding that sovereign immunity prevents
mandamus action to compel state officers to levy a tax to pay
bondholders); Cunningham v. Macon & Brunswick R.R. Co.,
109 U.S. 446, 450–57 (1883) (holding that sovereign
immunity prevents bondholders’ foreclosure suit); Hagood v.
Southern, 117 U.S. 52, 65–71 (1886) (holding that sovereign
immunity prevents suit to compel state comptroller general to
levy a tax to fund redemption of revenue bond scrip); In re
Ayers, 123 U.S. 443, 497–98, 502–03 (1887) (holding that
sovereign immunity prevents suit to enjoin state officer from
 20
bringing tax collection suits against persons who had paid
taxes with bond coupons, where such collection was alleged
to breach bondholder’s contract, and where specific
performance of acceptance of coupons was requested).

These cases, from whence came Larson’s prohibition
against “affirmative action,” reflect a familiar limitation on
judicial power. A private party cannot by judicial decree force
a state officer to levy a tax because to do so would “require,
by affirmative official action on the part of the defendants, the
performance of an obligation which belongs to the State in its
political capacity.” Hagood, 117 U.S. at 70. In compelling an
officer to levy a tax, the court would “assum[e] the control of
the administration of the fiscal affairs of the State to the
extent that may be necessary to accomplish the end in view.”
Jumel, 107 U.S. at 722. Such an attempt to control an officer
would place the court on the wrong side of the line thought to
divide “discretionary” from “ministerial” functions. See
Hagood, 117 U.S. at 69 (“ ‘[A] court cannot substitute its own
discretion for that of executive officers in matters belonging
to the proper jurisdiction of the latter.’ ”) (quoting Bd. of
Liquidation, 92 U.S. at 542).

Hawaii v. Gordon, 373 U.S. 57 (1963) (per curiam), a
case upon which counsel for the Cherokee Nation relied at
oral argument, shows the principle at work. In Gordon, the
federal Director of the Bureau of the Budget had advised
federal agencies that the United States was not obliged by the
Hawaii Statehood Act to convey certain federal land to that
State. Hawaii sued the Director, “seeking to obtain an order
requiring him to withdraw this advice to the federal agencies,
determine whether a certain 203 acres of land in Hawaii . . .
was land or properties ‘needed by the United States’ and, if
not needed, to convey this land to Hawaii.” Id. at 58 (quoting
the statute). The Supreme Court dismissed the suit on
 21
sovereign immunity grounds. Id. In addition to condemning
the impropriety of using judicial processes to wrest land from
the United States, the Court also noted with disapproval that
“the order requested would require the Director’s official
affirmative action.” Id. This disposition echoed the Solicitor
General’s argument that Hawaii was requesting prohibited
“affirmative action” because the Director, acting in his
personal capacity, lacked the authority to cancel an official
report concerning sovereign property and issue a new one. See
Brief in Opposition to Motion for Leave to File Complaint
20–23, 1962 WL 107667 (June 18, 1962) (citing, inter alia,
Larson’s footnote 11).

Whatever the precise meaning of “affirmative action,” we
think it clear that the Freedmen’s suit against the Cherokee
Nation does not run afoul of the prohibition as used in
footnote 11. The Second Amended Complaint contains a
single request for relief against an officer: an injunction
preventing Chief Smith “from holding further elections
without a vote of all citizens, including the Freedmen.” Pls.’
Second Am. Compl. ¶ 74, J.A. 138. This relief, if granted,
would not oblige the tribe’s officer to use his discretionary
authority to comply with the injunction. To the contrary, it
would prevent the officer from exercising any such authority
in violation of the Thirteenth Amendment or the 1866 Treaty.
The Cherokee Nation complains that the requested relief will
require amendments to the tribe’s constitution and voting
laws, but the Freedmen do not call for any such changes on
the part of the tribe’s officers in their Second Amended
Complaint. That the tribe might ultimately amend its
constitution to bring its elections into conformance with
federal law is irrelevant to our sovereign immunity analysis,
because any such change would not be the direct result of
judicial compulsion. If the tribe pursues these changes, its
discretion will not be steered by the judicial hand. The
 22
Freedmen’s suit falls squarely within the principle of Ex parte
Young. See 209 U.S. at 159 (“The general discretion regarding
the enforcement of the laws when and as he deems
appropriate is not interfered with by an injunction which
restrains the state officer from taking any steps towards the
enforcement of an unconstitutional enactment to the injury of
complainant. In such case no affirmative action of any nature
is directed, and the officer is simply prohibited from doing an
act which he had no legal right to do. An injunction to prevent
him from doing that which he has no legal right to do is not an
interference with the discretion of an officer.”).

At bottom, the Cherokee Nation’s reliance on footnote 11
and similar pronouncements reflects wishful thinking.5 The
tribe imagines a world where Ex parte Young suits cannot
proceed if they will have any effect on a sovereign. But that is
what Ex parte Young suits have always done. See, e.g.,
Milliken, 433 U.S. at 288–90 (relying on Ex parte Young in
suit to desegregate public schools); Griffin v. County Sch. Bd.,
377 U.S. 218, 228 (1964) (same); Orleans Parish Sch. Bd. v.

5
The tribe quotes two cases with similar language. See Gordon,
373 U.S. at 58 (“The general rule is that relief sought nominally
against an officer is in fact against the sovereign if the decree would
operate against the latter. Here the order requested would require
the [federal officer’s] official affirmative action, affect the public
administration of government agencies and cause as well the
disposition of property admittedly belonging to the United States.
The complaint is therefore dismissed.”) (citations omitted);
Pennhurst State Sch. & Hosp., 465 U.S. at 101 n.11 (“The general
rule is that a suit is against the sovereign if ‘the judgment sought
would expend itself on the public treasury or domain, or interfere
with the public administration,’ or if the effect of the judgment
would be ‘to restrain the Government from acting, or to compel it
to act.’ ”) (quoting Dugan v. Rank, 372 U.S. 609, 620 (1963)
(internal quotation marks omitted)).
 23
Bush, 242 F.2d 156, 160–61 (5th Cir. 1957) (same); Sch. Bd.
v. Allen, 240 F.2d 59, 62–63 (4th Cir. 1956) (same). To credit
the tribe’s position would be to conclude that Larson
overruled Ex parte Young in dicta, in a footnote, without even
citing the case. We doubt whether a case of such monumental
importance could have come to rest in such a shallow grave.
See 17A WRIGHT & MILLER, supra, § 4231 (“Indeed it is not
extravagant to argue that Ex parte Young is one of the three
most important decisions the Supreme Court of the United
States has ever handed down.”). The Supreme Court
mentioned no such change when it recently “confirmed that
the core of the Young doctrine is still alive and well.”
RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER’S THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 1028 (5th ed.
2003) (citing Verizon, 535 U.S. 635). We therefore reject the
Cherokee Nation’s argument.

B.

The Cherokee Nation’s next attempt to fend off Ex parte
Young relies on Seminole Tribe v. Florida, 517 U.S. at 73–76.
In that case, a tribe sued a State and its officers under a
provision of the Indian Gaming Regulatory Act (“IGRA”)
purporting to abrogate state sovereign immunity. After
concluding that Congress lacked power under Article I so to
abrogate, id. at 57–73, the Seminole Tribe Court considered
the tribe’s contention that the suit could proceed against state
officers under Ex parte Young. The Court rejected this
argument because the IGRA provided for a remedial scheme
against the States that was more limited in scope than would
have been a suit under Ex parte Young. See Seminole Tribe,
517 U.S. at 74 (“[W]here Congress has prescribed a detailed
remedial scheme for the enforcement against a State of a
statutorily created right, a court should hesitate before casting
 24
aside those limitations and permitting an action against a state
officer based upon Ex parte Young.”).

This Seminole Tribe exception applies if we can discern
an intent to displace Ex parte Young suits through the
establishment of a more limited remedial regime. See Verizon,
535 U.S. at 647–48. The Cherokee Nation argues that article
VII of the 1866 Treaty provides such a remedial scheme
against the tribe, thereby foreclosing suits against the tribe’s
officers. But the treaty provision in question, which opens the
federal courts to suits between “inhabitant[s]” of two different
districts within the tribe’s territory, does not by its terms
provide for any type of suit against the tribe itself. As the
Cherokee Nation itself argues elsewhere in its briefs, the tribe
is not an “inhabitant” of its own territory. Cherokee Nation’s
Br. at 26. The 1866 Treaty does not provide for any remedial
scheme against the Cherokee Nation, much less a “detailed
remedial scheme,” so the Seminole Tribe argument fails.

C.

Finally, the Cherokee Nation argues that the Freedmen
cannot pursue their claims under Ex parte Young because the
requested relief “implicates special sovereignty interests.”
Idaho v. Couer d’Alene Tribe, 521 U.S. 261, 281 (1997). In
Couer d’Alene, the Supreme Court held that Ex parte Young
did not allow a tribe to sue state officers for infringing upon
tribal property rights in violation of federal law, reasoning
that control of submerged lands was a core sovereign interest
of the State. The Cherokee Nation contends that its special
interests in controlling internal governance and defining tribal
membership call for a similar result. We reject this argument.

The Cherokee Nation has no interest in protecting a
sovereignty concern that has been taken away by the United
 25
States. As the district court went to great lengths to explain,
Vann, 467 F. Supp. 2d at 66–70, the Thirteenth Amendment
and the 1866 Treaty whittled away the tribe’s sovereignty
with regard to slavery and left it powerless to discriminate
against the Freedmen on the basis of their status as former
slaves. The tribe does not just lack a “special sovereignty
interest” in discriminatory elections — it lacks any sovereign
interest in such behavior.

In addition, we cannot extend Couer d’Alene beyond its
“particular and special circumstances,” 521 U.S. at 287,
which involved the protection of a State’s land. In this regard,
Couer d’Alene closely aligns with earlier decisions holding
that Ex parte Young cannot be used to gain access to the
State’s treasury. See, e.g., Edelman v. Jordan, 415 U.S. 651,
663 (1974) (“[A] suit by private parties seeking to impose a
liability which must be paid from public funds in the state
treasury is barred by the Eleventh Amendment.”) (citing Ford
Motor Co. v. Dep’t of Treasury, 323 U.S. 459 (1945)).
Compared to the interests at stake in Couer d’Alene, whose
historical pedigree is carefully set forth in that opinion, 521
U.S. at 283–87 (citing, inter alia, Magna Carta and the
Institutes of Justinian), the Cherokee Nation’s relatively
newfangled interest in controlling its tribal elections strikes us
as less compelling. We leave it for the Supreme Court to
decide whether to add additional sovereign interests to the
core concerns discussed in Couer d’Alene.

IV.

The district court determined that the Cherokee Nation
was a required party under Federal Rule of Civil Procedure
 26
19(a).6 Having concluded that the district court erred in
holding that the Cherokee Nation was amenable to suit, we
reverse the judgment in part. On remand, the district court
must determine whether “in equity and good conscience” the
suit can proceed with the Cherokee Nation’s officers but
without the Cherokee Nation itself. See FED. R. CIV. P. 19(b).

So ordered.

6
We do not review the district court’s Rule 19(a) determination
because the parties have not raised the issue on appeal.