8th Circuit Holds Indian Tribe Cannot Use Anticipated Tribal Immunity Defense as Basis for Invoking Federal Jurisdiciton over State Law Action

Per Oglala Sioux Tribe v. C & W Enterprises, Inc., 487 F.3d 1129 (8th Cir.(S.D.) Jun 11, 2007) (NO. 06-3480):

We will normally consider a claim to have arisen under federal law if a federal cause of action appears on the face a well-pleaded complaint. Oklahoma Tax Commission v. Graham, 489 U.S. 838, 840-41, 109 S.Ct. 1519, 103 L.Ed.2d 924(1989). Under the well-pleaded complaint rule, the existence of a federal cause of action depends upon the plaintiff's claim rather than any defense that may be asserted by the defendant. Id. The existence of a tribal immunity defense, for example, will not convert a claim based on state law into a federal cause of action, even though tribal immunity is a matter of federal common law and even if it might potentially resolve the case. Id. at 841, 109 S.Ct. 1519. As the Supreme Court held in Graham, which also involved tribal immunity, "it has long been settled that the existence of a federal immunity to the claims asserted does not convert a suit otherwise arising under state law into one which, in the statutory sense, arises under federal law." Id. (citing Gully v. First Nat'l Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936)).

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Examining the realistic position of the parties, we conclude that the tribe is essentially seeking to interpose a federal defense against C & W's claims.