Tribal sovereignty grants Native American nations the right to govern themselves and their lands, thereby protecting, honoring, and preserving their communities and culture.1 Despite these guarantees, tribal sovereignty is often illusory in practice and has been systemically eroded by courts, state governments, and Congress alike, leading Native nations and tribal members to turn to litigation to preserve their rights.2 Today, various federal court doctrines continue to complicate the path to litigation for tribal members.3 These complications are particularly divisive when they clash with state assertions of sovereign immunity.4 Recently, in Silva v. Farrish,5 the Second Circuit rejected the applicability of several such doctrines and allowed a lawsuit from Shinnecock Nation tribal members to proceed to the merits.6 In so doing, the panel narrowed increasingly inapposite Supreme Court precedent, offering clarity and strengthening Native nations’ opportunity to assert and litigate their rights in federal courts.
Cases implicating tribal rights often embroil the machinations and fictions of state sovereign immunity. The constitutional basis of state sovereign immunity sits principally within the Eleventh Amendment, which disallows states from being sued in federal court without the state’s consent.7 State sovereign immunity bars a plaintiff from naming, for instance, New York State as a defendant. Nevertheless, in Ex parte Young,8 the Court held that a plaintiff may sue state officers to enjoin the enforcement of an unconstitutional or federally illegal state law because the state “has no power to impart” to its officers “any immunity from responsibility” for unlawful deeds.9 Known as the Ex parte Young fiction10 — the fiction that a state officer is no longer an agent of the state when engaged in unlawful acts11 — this doctrine allows a plaintiff to sue, say, the Attorney General of New York.
In the context of tribal suits against state officials, the Ex parte Young fiction is further complicated and diluted by Idaho v. Coeur d’Alene Tribe.12 In a fractured decision, the Court in Coeur d’Alene Tribe disallowed any suit under Ex parte Young that is the “functional equivalent of a quiet title action,” because such a claim implicates “special sovereignty interests.”13 Namely, such claims seek “a determination that the lands in question are not even within the regulatory jurisdiction of the State.”14 In the decades following Coeur d’Alene Tribe, circuit courts have grappled with the scope and applicability of the Coeur d’Alene Tribe exception to the Ex parte Young fiction.15 Silva is the most recent example of a circuit court grappling with such questions.
The Shinnecock Nation (the Nation) is a self-governing, federally recognized Native nation on Long Island.16 For centuries before the arrival of European colonizers, the Nation relied heavily on fishing and whaling in the surrounding waters.17 Preconstitutional treaties and deeds signed between the Nation and European colonizers reflect these traditional practices and preserve the Nation’s rights to fish, hunt, and gather on familiar aboriginal lands and waters.18 As the plaintiffs alleged in Silva, these treaties remain enforceable under state and federal law and the plaintiffs’ right to fish in aboriginal territories is protected under the Supremacy Clause.19 Nevertheless, many state fishing and hunting regulations have sidestepped the Nation’s tribal sovereignty and existing contracts in an effort to promote wide-reaching enforcement of these regulations.20
In New York State, the Department of Environmental Conservation (DEC) and its officers execute enforcement conservation regulations.21 Despite the DEC’s promises of operating with a “spirit of Peace and Friendship” with Native nations,22 members of the Nation, including David Taobi Silva, alleged regular and repeated targeting by DEC officials.23 Silva, along with two other tribal members, sued the DEC and several DEC officials.24 Their complaint alleged, first, that the officials’ “repeated interference, seizures, and prosecution . . . violate[d] [tribal] fishing rights protected under the Supremacy Clause”; and, second, that the officials’ actions “constitute[d] a continuing pattern and practice of purposeful acts of discrimination based on [the tribal members’] race as Native Americans.”25
The Eastern District of New York granted summary judgment in favor of the DEC officials.26 Magistrate Judge Locke recommended that summary judgment be granted on two bases: first, that the plaintiffs’ claims were barred by sovereign immunity, and second, that the plaintiffs lacked standing to seek prospective relief.27 The district court adopted the magistrate’s recommendation.28
The Second Circuit affirmed in part, vacated in part, and remanded in part.29 Writing for the court, Judge Menashi30 focused first on the applicability of the Ex parte Young fiction to the defense of sovereign immunity.31 The court explained that Ex parte Young functions as an exception, allowing plaintiffs to sue government officials in their individual capacities when the “complaint (1) ‘alleges an ongoing violation of federal law’ and (2) ‘seeks relief properly characterized as prospective.’”32 The court found that the Ex parte Young fiction applied only to the claims against the DEC officials and “ha[d] no application to the DEC itself.”33
The court then rejected the defendants’ assertion that Coeur d’Alene Tribe foreclosed the plaintiffs’ action under Ex parte Young.34 The Second Circuit explained that it read Coeur d’Alene Tribe to apply only to claims asserting an “exclusive” use of land, which was not the case here.35 Instead, looking to the Sixth Circuit’s decision in Hamilton v. Myers,36 the court held that the relief requested “would not divest the state of its ownership of the land or waters” and therefore the suit was not “one against the state.”37 Next, the court found that the plaintiffs had Article III standing because they credibly alleged a threat of future enforcement of fishing laws,38 which amounted to an imminent injury in fact.39 Lastly, the court found that the abstention doctrine from Younger v. Harris40 did not bar the plaintiffs’ claim for injunctive relief.41 The Younger doctrine mandates that federal courts abstain from cases that are also pending in state proceedings.42 Because Silva’s appeal of his state-level prosecution was dismissed, the court found that Younger did not apply.43
Having addressed justiciability, the court then turned to the merits of the plaintiffs’ discrimination claims.44 The court explained that to state a prima facie claim under §§ 1981 and 1982,45 a plaintiff must prove that “(1) they are members of a racial minority; (2) [there was] an intent to discriminate on the basis of their race by [the] defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute.”46 The court focused on the second element — an intent to discriminate — and affirmed the judgment of the district court after finding no evidence of racial animus.47
Beneath the surface of the substantive debate raised over the Nation’s fishing rights is a delicate and technical procedural question: when and how can a Native nation and its tribal members sue to protect their rights? To answer this question, the Second Circuit grappled with the applicability and scope of Coeur d’Alene Tribe. Ultimately, the Second Circuit’s decision in Silva narrowed the applicability of Coeur d’Alene Tribe by defining “exclusion” using the full scope of property rights, rather than any one right.48 By cabining the state’s sovereign immunity in this way, the court’s holding expands and preserves tribal rights to future litigation and aligns with other circuits’ decisions, which have taken similar stances on the scope of Coeur d’Alene Tribe.
Since the Supreme Court first handed down Coeur d’Alene Tribe in 1997, the case has raised more questions than answers.49 Writing for the Court, Justice Kennedy found that a suit against an officer in their individual capacity can amount to an attempted suit against the state if the claim is “the functional equivalent of a quiet title action.”50 He distinguished these land-claim cases from others where “state officials . . . were acting beyond the authority conferred upon them by the State.”51 Ultimately, the Court concluded that when land was at issue, there was no such differentiation between a claim against state officials and a claim against the state itself.52
But Justice Kennedy’s opinion struggled to define “functional equivalent.”53 The Court pointed to a number of factors to clarify the state’s historical control over the land — including the ability of government agents to exercise police power in the disputed territory and the extent of the plaintiffs’ potential property rights — while ignoring the historical control of the Coeur d’Alene Tribe (the Tribe) prior to the existence of Idaho’s state government.54 Despite the blurry scope of the prohibition on “functional” quiet title claims, the Justices demonstrated a desire to sidestep the Tribe’s assertion of rights, elucidating the “conception [that] a state’s pain threshold is much lower than the Court’s previous conception.”55 The question from Coeur d’Alene Tribe, then, was whether a suit asserts an “entitlement to the exclusive use and occupancy and the right to quiet enjoyment of . . . [contested] lands.”56
In assessing the applicability of Coeur d’Alene Tribe, both the panel and the defendants in Silva focused on the concept of “exclusivity,” but each came to different conclusions. Start with the defendants. Given the fractured and unclear scope of the decision in Coeur d’Alene Tribe, the defendants plausibly asserted that the plaintiffs’ claims sufficiently paralleled those of the Tribe.57 In the DEC’s memoranda, the defendants argued that the plaintiffs’ claims were “fundamentally inconsistent with the State of New York’s exercise of fee title over the contested areas,”58 and were thereby impermissible under Coeur d’Alene Tribe.59 The defendants pointed to the exclusive nature of the Nation’s asserted rights over the ecosystem of Shinnecock Bay, which they claimed would tie the hands of the state’s “ability to regulate and protect its wildlife.”60 Indeed, DEC regulations have prevented decimation of wildlife that occurs due to overfishing and pollution in the Bay.61
Similarly focused on the meaning of “exclusion,” the Second Circuit adopted a narrower interpretation than the defendants’. The panel in Silva considered exclusion through a more limited and multifactorial test, examining the claimed fishing rights,62 potential prohibitions of entry,63 and the state’s control over the area.64 While the plaintiffs’ requested relief might impinge on certain aspects of the state’s right to exclude, such as its power to regulate the capture and removal of animals from the Bay, the court ultimately determined that Coeur d’Alene Tribe’s prohibition on quiet title claims against states was not triggered.65 Thus, the plaintiffs’ assertion of their rights to aboriginal waters was proper under Ex parte Young. Instead of wholly prohibiting state use of the land, the action would “at most” require the state “to tailor its regulatory scheme to respect [tribal] fishing rights.”66
In arriving at its conclusion, the Second Circuit appeared to add another limitation to Coeur d’Alene Tribe’s reach: that any exclusion must be “substantial” for the Ex parte Young fiction not to apply.67 In its analogy to Coeur d’Alene Tribe, the court noted that there, “the suit [was] effectively one against the state [because] ‘substantially all benefits of ownership and control would shift from the State to the Tribe.’”68 But in Silva, the court observed that “relief . . . would not transfer ownership and control of the Shinnecock Bay from the state to an Indian tribe. Nor would it allow the plaintiffs to prevent others from fishing in the Shinnecock Bay.”69 Therefore, the Second Circuit moved closer toward a rejection — or at least a tight cabining — of Coeur d’Alene Tribe by interpreting exclusion to require broad and substantial enjoyment of “all benefits of ownership.”70 In so doing, the court expanded the Ex parte Young fiction for future plaintiffs.
And the Second Circuit is not alone. By rejecting a broad application of Coeur d’Alene Tribe, the Second Circuit joined a larger trend in the judiciary of cabining the scope of claims that are deemed to be the “functional equivalent” of quiet title claims.71 This cabining is occurring in light of fears that Coeur d’Alene Tribe would undermine large swaths of Native American hunting, fishing, and water-use claims that could be broadly interpreted as quiet title claims.72 Arising from the Court’s lack of clarity — and Justice Kennedy’s suggestions that the Court pursue a “fundamental shift” in the Ex parte Young fiction73 — there was a possibility for inconsistent application in the courts of appeals, and a concern that states might argue that Ex parte Young actions constitute unconstitutional invasions of state sovereignty.74
But these concerns have not been borne out in practice. Recognizing the potential for broad applications of Coeur d’Alene Tribe, the Tenth Circuit doubted that the Court intended for its holding to extend to “every situation where a state property interest is at issue” and instead found that Coeur d’Alene Tribe “reflects the extreme and unusual case.”75 The Sixth Circuit similarly constrained Coeur d’Alene Tribe, finding that fishing rights asserted by plaintiffs did not constitute an illegal divestment of state sovereignty.76 Other circuits followed suit,77 and now the Second Circuit has followed the trend of cabining the Court’s holding to be only a narrow carve-out to the Ex parte Young fiction.
In Silva, the Second Circuit joined an ongoing judicial pattern rejecting a broad reading of Coeur d’Alene Tribe. To do so, the court focused on the meaning of “exclusion” and suggested that its definition in relation to a functional quiet title action may be multifactored.78 This approach may prove particularly important to protecting tribal fishing and hunting rights in the future, as it creates flexibility in understanding a plaintiff’s claims and requested relief. By clarifying the meaning of “exclusion” in Coeur d’Alene Tribe, the Second Circuit cabined the decision and rejected the state’s assertion that any abridgment of the DEC’s enforcement in order to protect tribal sovereignty and fishing rights is exclusionary, and therefore unconstitutional. In a modern judiciary where the “guarantees” of tribal sovereignty are anything but guaranteed, Silva provides a small but important foothold for future tribal litigants in their efforts to protect their rights.