Christine J. Williams v. Poarch Band of Creek Indians

Case: 15-13552 Date Filed: 10/18/2016 Page: 1 of 24

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-13552

________________________

D.C. Docket No. 1:14-cv-00594-CG-M

CHRISTINE J. WILLIAMS,

Plaintiff - Appellant,

versus

POARCH BAND OF CREEK INDIANS,

Defendant - Appellee

________________________

Appeal from the United States District Court

for the Southern District of Alabama

________________________

(October 18, 2016)

Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and SMITH,* District

Judge.

*

Honorable C. Lynwood Smith, Jr., United States District Judge for the Northern District

of Alabama, sitting by designation.

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SMITH, District Judge:

Christine J. Williams, the plaintiff below and appellant here, was employed for

more than twenty-one years as the laboratory manager and chief medical technologist

in the Health Department operated by the Poarch Band of Creek Indians (“the Poarch

Band”), a federally-recognized tribe of Native Americans.1 The Department is located

on reservation lands, and positions within it are considered to be jobs of Tribal

government.2 Plaintiff asserts that her employment was terminated because of her age

(which she described as “over 55”), and that she was replaced by a 28-year-old female

who “did not have enough experience to be a lab manager.”3 Plaintiff subsequently

filed a complaint in the United States District Court for the Southern District of

Alabama, alleging a single claim of discrimination under the Age Discrimination in

1

Additional Principal Brief for Plaintiff-Appellant, at 4. See also, e.g., 25 U.S.C. § 479a-1

(requiring that the Secretary of the U.S. Department of the Interior annually “publish in the Federal

Register a list of all Indian tribes which the Secretary recognizes to be eligible for the special

programs and services provided by the United States to Indians because of their status as Indians”);

81 Fed. Reg. 26826 (listing 567 Tribal entities that were recognized, as of May 4, 2016, as eligible

for funding and services from the Bureau of Indian Affairs by virtue of their status as Indian Tribes);

id. at 26829 (listing the Poarch Band, previously described as “the Poarch Band of Creek Indians

of Alabama”); 80 Fed. Reg. 1942-43 (notice publishing a list of 566 tribal entities that were

recognized and eligible, as of Jan. 14, 2015, for funding and services from the Bureau of Indian

Affairs by virtue of their status as Indian tribes); id. at 1945 (listing the Poarch Band, previously

described as “the Poarch Band of Creek Indians of Alabama”). See also, e.g.,

http://www.poarchcreekindians.org/westminster/index.html (last visited Sept. 26, 2016).

2

Tr. doc. no. 11-1 (Declaration of Tribal Administrator Edie Jackson), at 2.

3

Tr. doc. no. 5 (Executed Complaint), at 1. Note: The pro se complaint filed by plaintiff

on Dec. 22, 2014 (Tr. doc. no. 1) was not signed, and the Magistrate Judge to whom the case

originally was assigned ordered her to file an executed copy in accordance with Fed. R. Civ. P.

11(a). That pleading was filed on January 6, 2015.

2

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Employment Act of 1967, 29 U.S.C. §§ 621-634 (“ADEA”). The Poarch Band moved

to dismiss the suit, arguing that the doctrine of tribal sovereign immunity deprived the

court of subject matter jurisdiction. The Magistrate Judge to whom the action

originally was assigned entered a report recommending that the motion be granted.4

Plaintiff’s objections were overruled by the District Court Judge, who adopted the

Magistrate’s Report and Recommendation and dismissed the case.5 This appeal

followed. Following review and with the benefit of oral arguments, we affirm.

I. STANDARD OF REVIEW

We review the legal conclusions underlying a district court’s dismissal of

claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction de novo,6 and its findings of jurisdictional facts for clear error. See, e.g.,

Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013). “The

burden for establishing federal subject matter jurisdiction rests with the party bringing

the claim.” Sweet Pea Marine Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th

Cir. 2005) (citation omitted). If the plaintiff fails to shoulder that burden, the case

must be dismissed. E.g., In re Trusted Net Media Holdings, LLC, 550 F.3d 1035,

4

Tr. doc. no. 25 (Report and Recommendation), at 18.

5

See Tr. doc. no. 26 (Plaintiff’s Objections to Magistrate’s Report and Recommendation);

Tr. doc. no. 28 (Order of U.S. District Judge Callie V.S. Granade, adopting Magistrate Judge’s

Report and Recommendation); Tr. doc. no. 29 (July 8, 2015 Judgment in Favor of the Poarch Band).

6

Fed. R. Civ. P. 12(b)(1) provides that: “Every defense to a claim for relief in any pleading

must be asserted in the responsive pleading if one is required. But a party may assert the following

defenses by motion: (1) lack of subject-matter jurisdiction . . . .”

3

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1042 (11th Cir. 2008) (“[I]f the court determines that subject matter jurisdiction is

lacking, it must dismiss the entire case.”) (alteration supplied).

II. DISCUSSION

The principle that American Indian tribes possess “sovereignty” — that they are

a group of people bound together by ties of common heritage, exercising dominion

over a defined geographical area, and possessing the fundamental right of self-

government through the enactment and enforcement of substantive laws within that

territory — is a precept that preceded the creation of the United States government.7

That belief is reflected in statements made by Alexander McGillivray, the principal

chief of the “Upper Creek” confederation from 1782 until his death in 1793.8

McGillivray pushed to centralize Creek authority in the present states of Alabama and

7

See, e.g., Andrea M. Seielstad, The Recognition and Evolution of Tribal Sovereign

Immunity Under Federal Law: Legal, Historical, and Normative Reflections on a Fundamental

Aspect of American Indian Sovereignty, 37 TULSA L. REV. 661 (2002); Theresa R. Wilson, Nations

Within a Nation: The Evolution of Tribal Immunity, 24 AMER. INDIAN L. REV. 99 (1999). The

principle of tribal sovereignty is implicit in the term chosen by those European governments that

established colonies in the “New World” to describe agreements reached between the European

settlers and the indigenous people on the North American continent: i.e., “treaties,” a term

universally used to describe understandings that are “formally signed, ratified, or adhered to between

two nations or sovereigns.” BLACK’S LAW DICTIONARY 1640 (9th ed. 2009).

8

McGillivray was born about 1750 in the Creek (Muscogee) town (talwa) of Little Tallassee,

located near present-day Montgomery. His birth name was either Hippo Ilk Meco (“the Good Child

King”) or Hoboi Hili Miko (“Great Beloved Man”). Virginia Pounds Brown & Linda McNair

Cohen, DRAWING BY STEALTH: JOHN TRUMBULL AND THE CREEK INDIANS 33-35 (Montgomery:

New South Books 2016); see also id. at ix (observing that the variant spellings of Creek Indian

names of people and places “reflect the wrenching of Muskogean sounds into archaic French,

Spanish, and English spellings over several centuries and thus into the research materials that

scholars on the subject have left us”).

4

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Georgia.9 Following the 1783 Treaty of Paris that formally ended the American

Revolution, he authored a letter on behalf of the Creek, Chickasaw, and Cherokee

Indian nations that angrily protested the nascent American government’s assertion of

title to — as well as the English Monarchy’s cession of — “our lands”:

We Cheifs and Warriors of the Creek Chickesaw and Cherokee Nations,

do hereby in the most solemn manner protest against any title claim or

demand the American Congress may set up for or against our lands,

Settlements, and hunting Grounds in Consequence of the Said treaty of

peace between the King of Great Brittain and the States of America

declaring that as we were not partys, so we are determined to pay no

attention to the Manner in which the British Negotiators has drawn out

the Lines of the Lands in question Ceded to the States of America — it

being a Notorious fact known to the Americans, known to every person

who is in any ways conversant in, or acquainted with American affairs,

that his Brittannick Majesty was never possessed either by session

purchase or by right of Conquest of our Territorys and which the Said

treaty gives away. On the contrary it is well known that from the first

Settlement of the English colonys of Carolina and Georgia up to the date

of the Said treaty no title has ever been or pretended to be made by his

Brittanic Majesty to our lands except what was obtained by free Gift or

by purchase for good and valuable Considerations.

John Walton Caughey, McGillivray of the Creeks 91 (Norman: University of

Oklahoma Press 1938) (1959 Reprint) (misspellings in original, emphasis supplied).

9

See Edwin C. Bridges, Alabama: The Making of an American State 24 (Tuscaloosa: Univ.

of Ala. Press 2016) (Map depicting the principal Indian towns and trading paths in the Southeast just

before the American Revolution, with state boundary lines superimposed, and showing that Creeks

claimed most of present-day Alabama and Georgia); id. at 24-36 (discussing the Creeks in the land

that became the State of Alabama).

5

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McGillivray’s mixed-race heritage and experiences10 molded him into “a literate

and erudite bicultural Creek”11 — a man whose superior negotiation skills earned him

the title of “the Talleyrand of Alabama”12 after leading a delegation of thirty powerful

Creek chiefs and warriors to New York City, the first capitol of George Washington’s

fledgling government, during July of 1790. There he negotiated with Secretary of

War Henry Knox the first treaty ratified under the new Constitution. McGillivray

insisted that “sovereignty was one of the Indian nations’ ‘natural rights . . . which

belong[ed] to our ancestors and hath descended from them to us Since the beginning

of time.’”13 The resulting “Treaty of New York,” as it became known to history,

optimistically established “perpetual peace and friendship” between

America and the entire Creek nation and settled the boundary between

the state of Georgia and the Creeks, with the Creeks agreeing to give up

10

McGillivray’s mother, Sehoy, belonged to the powerful Creek “Wind Clan” (Hutalgalgi),

and his father, Lachlan McGillivray, was a Scot trader. Creek society was matrilineal, which meant

that Alexander’s heritage was traced through his mother’s family line rather than his father’s, and

he was considered ethnically to be a Creek. See, e.g., Gregory A. Waselkov, A CONQUERING SPIRIT:

FORT MIMS AND THE REDSTICK WAR OF 1813-1814, at 13-14 (Tuscaloosa: Univ. of Ala. Press

2006). He spent the first six years of his life immersed in Creek society, under the guidance of his

mother and members of her clan. His father later moved him into colonial society in Augusta,

Georgia, where he learned firsthand the language, manners, and “many of the details of plantation

life. . . . In 1773, Alexander moved to Charleston, South Carolina, where he studied under his

cousin Reverend Farquhar McGillivray and then briefly took an apprenticeship at the countinghouse

of Samuel Elbert in Savannah, Georgia.” Andrew K. Frank, Alexander McGillivray, ENCYCLOPEDIA

OF ALABAMA, http://www.encyclopediaofalabama.org/article/h-2313 (ellipsis supplied) (last visited

Oct. 4, 2016).

11

Kathryn H. Braund, The Creeks Take New York, 122 ALABAMA HERITAGE 10, Fall 2016.

12

Brown and Cohen, supra note 8, at 31.

13

Christina Snyder, SLAVERY IN INDIAN COUNTRY: THE CHANGING FACE OF CAPTIVITY IN

EARLY AMERICA 163 (Cambridge: Harvard Univ. Press 2010) (ellipsis and alteration in original,

footnote omitted).

6

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roughly two-thirds of the land Georgia had claimed under the previous

treaties. The Creeks also promised to return prisoners taken during the

border conflicts of the 1780s. In exchange for the territory, the Creeks

received a perpetual annuity of $1,500 as well as a gift of trade goods

and other items. The nation-to-nation relationship and respect for tribal

sovereignty was a continuation of British policy established in the

eighteenth century, which took Indian affairs out of the hands of the

colonies and centralized them in the hands of an imperial “Indian

department.” The exclusive right of the United States to treat with

Indian tribes (as opposed to individual states) was embedded in the

Constitution.

Kathryn H. Braund, The Creeks Take New York, 122 Alabama Heritage 19, Fall 2016

(emphasis supplied).14

McGillivray’s insistence that the federal government acknowledge the existence

of Native American sovereignty has been reflected in numerous decisions of the

United States Supreme Court. See, e.g., Oklahoma Tax Commission v. Citizen Band

Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509 (1991) (“Indian tribes are

‘domestic dependent nations’ that exercise inherent sovereign authority over their

members and territories.”) (quoting Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1,

17 (1831)); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978) (stating that

14

Braund’s statement that the “exclusive right of the United States to treat with Indian tribes

(as opposed to individual states) was embedded in the Constitution” is a shorthand reference to

Article I’s Commerce Clause, which provides that “Congress shall have Power . . . To regulate

Commerce with foreign Nations, and among the several States, and with the Indian tribes . . .” U.S.

Const. art. I, § 8, cl. 3 (1788). That is the only mention of Indian tribes in the Constitution.

Individual Indians are referenced in art. I, § 2, cl. 3, which addresses the apportionment of elected

representatives and direct taxes among the several states “according to their respective Numbers,

which shall be determined by adding to the whole Number of free Persons, including those bound

to service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

7

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Indian tribes “have power to make their own substantive law in internal matters, and

to enforce that law in their own forums”) (citations omitted); United States v. Mazurie,

419 U.S. 544, 557 (1975) (“Indian tribes are unique aggregations possessing attributes

of sovereignty over both their members and their territory.”); United States v.

Kagama, 118 U.S. 375, 381-82 (1886) (observing that Indian tribes are “a separate

people, with the power of regulating their internal and social relations”); Worchester

v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832) (holding that Indian tribes are “distinct,

independent political communities, retaining their original natural rights” in matters

of self-government).

For such reasons, Indian tribes benefit from the same “common-law immunity

from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo, 436 U.S.

at 58 (citations omitted). Even so, that immunity is not absolute, but subject to the

plenary power of Congress to limit, modify, or eliminate altogether. See, e.g.,

Oklahoma Tax Commission, 498 U.S. at 510 (“Congress has always been at liberty to

dispense with such tribal immunity or to limit it.”); Talton v. Mayes, 163 U.S. 376,

384 (1896) (“Indian tribes are subject to the dominant authority of congress.”).

Thus, suits such as this one are barred by the doctrine of tribal sovereign

immunity, unless the plaintiff shows either a clear waiver of that immunity by the

tribe, or an express abrogation of the doctrine by Congress. See, e.g., Oklahoma Tax

8

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Commission, 498 U.S. at 509 (citing Santa Clara Pueblo, 436 U.S. at 58); Kiowa

Tribe v. Manufacturing Technologies, Inc., 523 U.S. 751, 754 (1998) (holding that “an

Indian tribe is subject to suit only where Congress has authorized the suit or the tribe

has waived its immunity”).

There is no evidence that the Poarch Band waived its immunity, either generally

or in the present suit.15 Therefore, the Tribe retains its common law exemption from

suit, unless plaintiff demonstrates that Congress abrogated the doctrine of tribal

sovereign immunity when enacting the ADEA.

A. Plaintiff’s Comparison of the Definitions of the Term “Employer” Found

in the ADEA and Title VII, in Conjunction With the Supreme Court’s

Opinion in Fitzpatrick v. Bitzer

The Poarch Band contends that the text of the ADEA “contains no mention of

tribal immunity at all, much less an express and unequivocal abrogation of tribal

immunity from private lawsuits.”16 In response, plaintiff argues that a comparison of

the definition of the term “employer” found in Title VII of the Civil Rights Act of

15

For example, § 1-1-1 of the Tribal Code states that the “sovereign immunity of the [Poarch

Band] is not waived by any section, part, word, or phrase contained in this Tribal Code or

amendments thereto.” Tr. doc. no. 11 (Poarch Band’s Brief in Support of Motion to Dismiss), at 10

(alteration supplied). Moreover, § 33-8-9 of the Tribal Employment Rights Code states that:

“Nothing contained in this Title shall be construed as a waiver by the [Poarch Band] of sovereign

immunity from uncontested lawsuits or as consent by the [Poarch Band] to the bringing of any

action against the [Poarch Band], its officers, agents, employees, departments or business entities

or enterprises.” Tr. doc. no. 11 (Poarch Band’s Brief in Support of Motion to Dismiss), at 11

(alterations supplied).

16

Brief of Defendant-Appellee Poarch Band (submitted in response to the brief drafted by

Appellant’s appointed counsel), at 11.

9

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1964 with the ADEA’s definition of that same term demonstrates that Congress

intended to abrogate tribal immunity when enacting the ADEA.17

Title VII was enacted on July 2, 1964. The pertinent part of the Act’s original

definition of the term “employer” read as follows:

(b) The term “employer” means a person engaged in an

industry affecting commerce who has fifteen or more employees for each

working day in each of twenty or more calendar weeks in the current or

preceding calendar year, and any agent of such a person, but such term

does not include (1) the United States, a corporation wholly owned by

the Government of the United States, an Indian tribe, or a State or

political subdivision thereof, (2) a bona fide private membership club

(other than a labor organization) which is exempt from taxation under

section 501(c) of the Internal Revenue Code of 1954: . . .

Pub. L. No. 88-352, § 701(b), 78 Stat. 253-54 (1964) (emphasis and ellipsis

supplied).18

17

See Additional Principal Brief for Plaintiff-Appellant, at 6-10.

18

Title VII has been amended several times since its enactment, and the current definition

of the term “employer” reads as follows:

(b) The term “employer” means a person engaged in an industry affecting

commerce who has fifteen or more employees for each working day in each of

twenty or more calendar weeks in the current or preceding calendar year, and any

agent of such a person, but such term does not include (1) the United States, a

corporation wholly owned by the Government of the United States, an Indian tribe,

or any department or agency of the District of Columbia subject by statute to

procedures of the competitive service (as defined in section 2102 of Title 5), or (2)

a bona fide private membership club (other than a labor organization) which is

exempt from taxation under section 501(c) of Title 26, except that during the first

year after March 24, 1972, persons having fewer than twenty-five employees (and

their agents) shall not be considered employers.

42 U.S.C. § 2000e(b) (emphasis supplied).

10

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The ADEA was enacted three years later, on December 15, 1967, and Congress

appears to have patterned that Act’s definition of the term “employer” upon Title

VII’s formulation. Thus, the pertinent part of the ADEA provision provides that:

The term “employer” means a person engaged in an industry

affecting commerce who has twenty-five or more employees for each

working day in each of twenty or more calendar weeks in the current or

preceding calendar year: . . . The term also means any agent of such

person, but such term does not include the United States, a corporation

wholly owned by the Government of the United States, or a State or

political subdivision thereof.

Pub. L. No. 90-202, § 11(b), 81 Stat. 605 (1967) (emphasis and ellipsis supplied).

Plaintiff focuses upon Congress’s failure to include the phrase “an Indian tribe” in the

list of those entities excluded from the definition of an “employer” for purposes of the

ADEA, and argues that the omission indicates a congressional intent to abrogate tribal

sovereign immunity as a bar to suit under the Act.19 Plaintiff relies upon the Supreme

19

See, e.g., Additional Principal Brief for Plaintiff-Appellant, at 7 (“an affirmative act”).

Notably, only two of the federal statutes prohibiting workplace discrimination on the basis of an

employee’s protected characteristic expressly exclude Indian tribes from their definition of the term

“employer”: i.e., as discussed infra, Title VII of the Civil Rights Act of 1964; and, Title I of the

Americans with Disabilities Act of 1990, which defines the term “employer” as follows:

(A) In general. The term “employer” means a person engaged in an

industry affecting commerce who has 15 or more employees for each working day

in each of 20 or more calendar weeks in the current or preceding calendar year, and

any agent of such person, except that, for two years following the effective date of

this subchapter, an employer means a person engaged in an industry affecting

commerce who has 25 or more employees for each working day in each of 20 or

more calendar weeks in the current or preceding year, and any agent of such person.

(B) Exceptions. The term “employer” does not include — (i) The

United States, a corporation wholly owned by the government of the United States,

or an Indian tribe; or (ii) a bona fide private membership club (other than a labor

11

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Court’s opinion in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), to support her argument.

As will be seen, however, that case does not assist her.

The plaintiffs in Fitzpatrick were a group of retired male employees of the State

of Connecticut who claimed that certain provisions in that State’s statutory retirement

benefit plan discriminated against them because of their sex and, therefore, violated

Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e–2(a)(1) (making it

unlawful for an “employer” to discriminate against “any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin”). As previously noted,

however, when Title VII was enacted on July 2, 1964, it expressly exempted “a State

or political subdivision thereof” from the definition of those “employers” required to

comply with the Act.20 Moreover, Title VII then defined the term “employee” as

meaning simply “an individual employed by an employer.” Pub. L. No. 88-352, §

701(f), 78 Stat. 253-54 (1964). As a consequence of the juxtaposition of those two

organization) that is exempt from taxation under section 501(c) of Title 26.

42 U.S.C. § 12111(5) (boldface emphasis in original, italicized emphasis supplied). All other

federal employment discrimination statutes are silent on the question of whether Indian tribes are

included within the definition of the term “employer” (and, therefore, whether the statutes apply to

tribal employers).

20

See the textual quotation preceding note 16, supra (Pub. L. No. 88-352, § 701(b), 78 Stat.

253-54 (1964) (stating that “[t]he term ‘employer’ . . . does not include . . . a State or political

subdivision thereof”) (ellipses supplied)).

12

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definitions, the Fitzpatrick plaintiffs would not have been eligible to sue the State of

Connecticut under the terms of Title VII as originally enacted.

By the date on which the Fitzpatrick suit was commenced, however, both of the

foregoing definitions had been significantly amended by the Equal Employment

Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103-113 (1972). For example,

the 1972 Amendments deleted the phrase “a State or political subdivision thereof”

from Title VII’s definition of the term “employer.” Id., § 2(2).21 In addition, the 1972

Amendments expanded the definition of “employee” to include persons “subject to

the civil service laws of a State government, governmental agency or political

subdivision.” Pub. L. No. 92-261, § 2(5), 86 Stat. 103 (1972).22 As a result of those

21

The amended provision, which now is codified at 42 U.S.C. § 2000e(b), reads as follows:

The term “employer” means a person engaged in an industry affecting

commerce who has fifteen or more employees for each working day in each of

twenty or more calendar weeks in the current or preceding calendar year, and any

agent of such a person, but such term does not include (1) the United States, a

corporation wholly owned by the Government of the United States, an Indian tribe,

or any department or agency of the District of Columbia subject by statute to

procedures of the competitive service (as defined in section 2102 of Title 5), or (2)

a bona fide private membership club (other than a labor organization) which is

exempt from taxation under section 501(c) of Title 26, except that during the first

year after March 24, 1972, persons having fewer than twenty-five employees (and

their agents) shall not be considered employers. [Emphasis supplied.]

22

The amended definition of the term “employee,” as now codified at 42 U.S.C. § 2000e(f),

reads as follows:

(f) The term “employee” means an individual employed by an employer,

except that the term “employee” shall not include any person elected to public office

in any State or political subdivision of any State by the qualified voters thereof, or

any person chosen by such officer to be on such officer’s personal staff, or an

appointee on the policy making level or an immediate adviser with respect to the

13

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two amendments — together with a change to Title VII’s definition of the term

“person”23 — the Fitzpatrick plaintiffs became statutorily entitled to sue the State of

Connecticut for alleged violations of Title VII.

The gravamen of plaintiff’s argument in the present case can be succinctly

stated as follows: Because the Supreme Court’s opinion in Fitzpatrick considered the

1972 Amendment of Title VII that deleted the phrase “a State or political subdivision

thereof” from the Act’s definition of “employer” sufficient to bring states within the

purview of that Act, Congress’s failure to include the phrase “an Indian tribe” in the

list of entities excluded from the ADEA’s definition of “employers” demonstrated a

congressional intent to abrogate tribal sovereign immunity as a bar to suit under the

Act. Specifically, plaintiff argues that

Congress can express its will by actions which delete words as

much as adding them. Its decision to delete the word “Indian tribe” from

exercise of the constitutional or legal powers of the office. The exemption set forth

in the preceding sentence shall not include employees subject to the civil service

laws of a State government, governmental agency or political subdivision. With

respect to employment in a foreign country, such term includes an individual who

is a citizen of the United States. [Emphasis supplied.]

23

The Equal Employment Opportunity Act of 1972 expanded Title VII’s original definition

of the term “person” — i.e., “The term ‘person’ includes one or more individuals, labor unions,

partnerships, associations, corporations, legal representatives, mutual companies, joint-stock

companies, trusts, unincorporated organizations, trustees, trustees in bankruptcies, or receivers”

(Pub. L. No. 88-352, § 701(a), 78 Stat. 253 (1964)) — to include “governments, governmental

agencies, [and] political subdivisions.” Pub. L. No. 92-261, § 2(1), 86 Stat. 103-113 (1972)

(alteration supplied). The amended definition now reads as follows: “The term “person” includes

one or more individuals, governments, governmental agencies, political subdivisions, labor unions,

partnerships, associations, corporations, legal representatives, mutual companies, joint-stock

companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11, or

receivers. 42 U.S.C. § 2000e(a) (emphasis supplied).

14

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the definition of “employer” that it borrowed from Title VII was no

different from the equivalent deletion of state governments from that

same definition which the Supreme Court held to be sufficient to

abrogate the state’s immunity from Title VII claims in Fitzpatrick v.

Bitzer, 417 U.S. 445, 452 (1976). There was no explicit declaration of

abrogation in that instance other than the deletion of the following

words: “The term ‘employer’ . . . does not include . . . a state or political

subdivision.” Congress used that same means of abrogating tribal

immunity in the ADEA by deleting the following words from the

definition of “employer” it adopted from Title VII: “The term ‘employer

. . . does not include . . . an Indian tribe.” 42 U.S.C. § 2000e(b). By

deciding to include those words in Title VII in 1964 but to delete them

three years later when it enacted the ADEA on the basis of Title VII,

Congress expressed its clear and unmistakable intent to abrogate tribal

immunity from suits for age discrimination. That was a deliberate choice

by Congress.

Additional Principal Brief for Plaintiff-Appellant, at 8-9 (ellipses in original, footnotes

omitted, emphasis supplied). Plaintiff’s argument is not persuasive, for at least three

reasons.

First, plaintiff’s repeated use of such terms as “delete,” “deletion,” and

“deleting” is improper, because the phrase “an Indian tribe” was never included in the

list of entities excluded from the ADEA’s definition of those “employers” required to

comply with the Act. Hence, the phrase could not have been “deleted.” It would have

been more correct for plaintiff to say that Congress “omitted,” or “failed to include,”

that phrase when defining the term “employer” for purposes of the ADEA.

Second, and related to the first point, the silence of the statutory text of the

ADEA and its legislative history on the issue of whether Congress intended the Act

15

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to apply to Indian tribes is ambiguous. It certainly is not the “clarion call of clarity”

required by our decision in Freemanville Water Systems v. Poarch Band of Creek

Indians, 563 F.3d 1205 (11th Cir. 2009): i.e., “Indian tribes have sovereign immunity

from lawsuits unless Congress has abrogated it in the statute creating the right of

action that is asserted against the tribe. To be effective the expression of

Congressional intent must be a clarion call of clarity. Ambiguity is the enemy of

abrogation.” Id. at 1206 (emphasis supplied); see also Florida Paraplegic

Association, Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126, 1131

(11th Cir. 1999) (observing that the Supreme Court “has held that Congress may

abrogate a sovereign’s immunity ‘only by making its intention unmistakably clear in

the language of the statute’; legislative history and ‘inferences from general statutory

language’ are insufficient”) (quoting Atascadero State Hospital v. Scanlon, 473 U.S.

234, 242 (1985)). Indeed, one could just as easily conclude from the omission of any

reference to Indian tribes in the text of the ADEA, related committee reports, or the

floor statements of legislators during consideration of the Act that Congress never

considered the ADEA’s impact upon Indian tribes.

Fundamentally, however, plaintiff’s argument misconstrues the central issue

addressed in Fitzpatrick. That case turned upon the question of whether Congress

possessed the power to abrogate the sovereign immunity enjoyed by the states under

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the Eleventh Amendment,24 and to expose them to suit under Title VII. The Court

held that the Fourteenth Amendment was enacted specifically to limit the power of the

states and, thereby, that it fundamentally altered the balance of state and federal power

struck by the Constitution. As a consequence, Section 5 of the Fourteenth

Amendment, the so-called “Enforcement Clause,”25 vested Congress with the power

to pierce the shield of sovereign immunity afforded the states by the Eleventh

Amendment, and to enter an award against Connecticut for retroactive retirement

benefits as compensation for losses caused by the State’s alleged discrimination on the

basis of the plaintiffs’ sex. See Fitzpatrick, 427 U.S. at 448. The 1972 Amendment’s

deletion of the phrase “a State or political subdivision thereof” from the list of entities

excluded from Title VII’s definition of “employer” was not, standing alone,

considered by the Supreme Court to be a clear indication of congressional intent to

abrogate the states’ Eleventh Amendment sovereign immunity for purposes of Title

VII actions. Therefore, Fitzpatrick cannot be said to dictate a finding that Congress

24

The Eleventh Amendment provides that: “The Judicial Power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

Const. amend. XI (1795). See also, e.g., Hans v. Louisiana, 134 U.S. 1, 13-15 (1890) (holding that

the Eleventh Amendment not only repudiated the Supreme Court’s decision in Chisholm v. Georgia,

2 U.S. (2 Dall.) 419 (1793), but restored the original understanding of the persons who drafted the

Constitution — in Hamilton’s phrase, “the plan of the convention” — that a state could not be sued

without its consent); The Federalist, No. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed.,

1963) (2003 reprint).

25

“The Congress shall have power to enforce, by appropriate legislation, the provisions of

this article.” U.S. Const. amend. XIV, § 5 (1868).

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intended to abrogate tribal sovereign immunity under the ADEA by failing to exclude

“an Indian tribe” from the definition of those “employers” that were required to

comply with the ADEA.

B. Statutes of General Applicability

Plaintiff also attempts to avoid the doctrine of tribal sovereign immunity by

emphasizing that the ADEA is a statute of “general applicability,” and Congress did

not expressly exclude Indian tribes from the Act’s coverage.26 That argument is

foreclosed by our decision in Florida Paraplegic Association, Inc. v. Miccosukee

Tribe of Indians of Florida, supra, which involved a claim of disability discrimination

under Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181 et

seq. (“ADA”). We held there that, even though the ADA generally applied to the

Miccosukee Indian Tribe, suits against the Tribe were, nevertheless, barred by the

doctrine of tribal sovereign immunity. See 166 F.3d at 1134-35. Specifically, our

opinion stated that:

A general statute presumptively governs Indian tribes and will

apply to them absent some superseding indication that Congress did not

intend tribes to be subject to that legislation. See Federal Power

Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 120, 80 S. Ct. 543,

556, 4 L. Ed. 2d 584 (1960). The leading summary of the three

circumstances that may defeat the “general statute” presumption is found

in a Ninth Circuit case, Donovan v. Coeur d’Alene Tribal Farm, 751

F.2d 1113 (9th Cir. 1985). As the district court recognized, a general

statute applies to Indian tribes unless its application would (1) abrogate

26

Additional Principal Brief for Plaintiff-Appellant, at 12-13.

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rights guaranteed under an Indian treaty, (2) interfere with purely

intramural matters touching exclusive rights of self-government, or (3)

contradict Congress’s intent, see id. at 1116. The Associations and the

Miccosukee Tribe agree that no treaty relevant to this case exists and that

Congress has not specifically expressed its intent that the ADA not apply

to Indian tribes. Thus, the presumption of applicability controls here

unless the Act “touches ‘exclusive rights of self-governance in purely

intramural matters.’” Coeur d’ Alene, 751 F.2d at 1116 (quoting United

States v. Farris, 624 F.2d 890, 893 (9th Cir.1980)).

We agree with the district court and the majority of our sister

courts that have applied this test that tribe-run business enterprises

acting in interstate commerce do not fall under the “self-governance”

exception to the rule that general statutes apply to Indian tribes. In

Coeur d’Alene, the Ninth Circuit explained the limitations of this

exception:

The tribal self-government exception is designed to

except purely intramural matters such as conditions of

tribal membership, inheritance rules, and domestic relations

from the general rule that otherwise applicable federal

statutes apply to Indian tribes.

The operation of a farm that sells produce on the

open market and in interstate commerce is not an aspect of

tribal self-government. Because the Farm employs

non-Indians as well as Indians, and because it is in virtually

every respect a normal commercial farming enterprise, we

believe that its operation free of federal health and safety

regulations is neither profoundly intramural . . . nor

essential to self-government.

751 F.2d at 1116 (citations and internal punctuation omitted). The

Miccosukee Tribe’s restaurant and gaming facility is a commercial

enterprise open to non-Indians from which the Tribe intends to profit.

The business does not relate to the governmental functions of the Tribe,

nor does it operate exclusively within the domain of the Tribe and its

members. In fact, it is precisely the sort of facility within “the array of

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establishments . . . available to others who do not currently have

disabilities” that Congress intended to make “equally accessible” to

disabled individuals through enactment of Title III of the ADA. We

hold, therefore, that because the ADA is a generally applicable law and

because no exception to the presumption that such statutes apply to

Indian tribes controls this case, Title III of the ADA governs the

Miccosukee Tribe in its operation of its gaming and restaurant facility.

The district court ended its consideration of the Tribe’s motion to

dismiss this lawsuit with its finding that Title III governs Indian tribes

and that no exception prevents its application to the Miccosukee Tribe’s

commercial enterprise. The analysis does not stop here, however, for

whether an Indian tribe is subject to a statute and whether the tribe may

be sued for violating the statute are two entirely different questions. As

the Supreme Court bluntly stated in Kiowa Tribe v. Manufacturing

Technologies, Inc., 523 U.S. 751, 140 L. Ed. 2d 981, 118 S. Ct. 1700,

1703 (1998), “there is a difference between the right to demand

compliance with state laws and the means available to enforce them.”

This principle, which simply spells out the distinction between a right

and a remedy, applies with equal force to federal laws.

Florida Paraplegic, 166 F.3d at 1129-30 (emphasis supplied).

The same result pertains in this case. The difference between being subjected

to the requirements of a statute and the right to commence a suit demanding

compliance with (or damages for violations of) that same statute may be razor-thin,

but it is a distinction that has been acknowledged consistently.

Thus, even though the ADEA is a statute of general applicability, and the

Poarch Band might be generally subject to its terms, the doctrine of tribal sovereign

immunity protects the Poarch Band from suits under the statute.

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C. The Law in Other Circuits

Other Circuits that have considered the issue raised by this appeal also have

determined that federal courts lack subject-matter jurisdiction over an ADEA claim

asserted against a federally-recognized Indian tribe. For example, the Tenth Circuit

has stated:

We believe that unequivocal Supreme Court precedent dictates

that in cases where ambiguity exists (such as that posed by the ADEA’s

silence with respect to Indians), and there is no clear indication of

congressional intent to abrogate Indian sovereignty rights (as manifested,

e.g., by the legislative history, or the existence of a comprehensive

statutory plan), the court is to apply the special canons of construction

to the benefit of Indian interests.

E.E.O.C. v. Cherokee Nation, 871 F.2d 937, 939 (10th Cir. 1989) (emphasis in

original).

The Second Circuit also has held that Congress did not abrogate tribal sovereign

immunity under the ADEA. See Garcia v. Akwesasne Housing Authority, 268 F.3d

76, 86 (2d Cir. 2001). In a recent unpublished opinion that answers plaintiff’s

argument about comparing Title VII’s definition of “employer” to the ADEA’s

definition of that same term, the Second Circuit upheld a district court’s dismissal of

the plaintiff’s ADEA claim against an Indian tribe, saying that:

Unlike Title VII’s definition of employer, the ADEA’s definition

of employer does not exclude American Indian tribes. Compare 42

U.S.C. § 2000e(b) (Title VII), with 29 U.S.C. § 630(b) (ADEA).

Nonetheless, “[a]s a matter of federal common law, an Indian tribe

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enjoys sovereign immunity from suit except where ‘Congress has

authorized the suit or the tribe has waived its immunity.’” Garcia, 268

F.3d at 84 (quoting Kiowa Tribe v. Manufacturing Technologies, Inc.,

523 U.S. 751, 754, 118 S. Ct. 1700, 140 L. Ed. 2d 981 (1998)).

Agencies of a tribe enjoy “the same presumption of immunity” in a suit

for damages. Id.; see also Bassett v. Mashantucket Pequot Tribe, 204

F.3d 343, 358 (2d Cir. 2000). The Supreme Court has explained that,

“[t]o abrogate tribal immunity, Congress must unequivocally express

that purpose,” and “to relinquish its immunity, a tribe’s waiver must be

clear.” C&L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe

of Oklahoma, 532 U.S. 411, 418, 121 S. Ct. 1589, 149 L. Ed. 2d 623

(2001) (internal quotation marks omitted). Congress has not

unequivocally expressed its purpose to abrogate tribal sovereign

immunity pursuant to the ADEA, Garcia, 268 F.3d at 86, nor has

plaintiff identified any applicable waiver of immunity from such suits in

federal court. Accordingly, tribal sovereign immunity barred Tremblay’s

ADEA claim.

Tremblay v. Mohegan Sun Casino, 599 F. App’x 25, 26 (2d Cir. 2015) (alterations in

original).

The Eighth Circuit also has held that no evidence of a congressional intent to

abrogate tribal sovereign immunity can be drawn from a comparison of Title VII’s

definition of “employer” to the ADEA’s definition of that same term:

Although the two provisions [i.e., the original definitions of

“employer” in Title VII and the ADEA] are generally similar, differences

do exist. Under ordinary canons of construction, the omission of the

phrase “an Indian tribe” in the ADEA in comparison with its inclusion

in Title VII could be construed as indicating that Indian tribes were

intended to be covered by the ADEA . . . . United States v. Dion[, 476

U.S. 734, 739-40 (1986)] . . . , however, indicates that some affirmative

evidence of congressional intent, either in the language of the statute or

its legislative history, is required to find the requisite “clear and plain”

intent to apply the statute to Indian tribes. Furthermore, ambiguities of

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congressional intent must be resolved in favor of the tribal sovereignty

. . . . Because of the special rules of construction that apply in a case such

as this, we do not find that a clear and plain intention of Congress should

be extrapolated from the omission of the phrase “an Indian tribe” from

the definition of “employer” in the ADEA.

EEOC v. Fond du Lac Heavy Equipment and Construction Co., 986 F.2d 246, 250-51

(8th Cir. 1993) (alterations and ellipses supplied).27

Plaintiff responds that the foregoing opinions contained “strongly reasoned

dissents,” and did not consider the Supreme Court’s holding in Fitzpatrick v. Bitzer,

427 U.S. 445 (1976).28 Even so, this court should not give more weight to a dissenting

opinion than to a majority decision. Moreover, as previously discussed, Fitzpatrick

is not helpful to plaintiff.

Thus, the weight of authority in federal courts supports upholding the right of

the Poarch Band to tribal sovereign immunity from a claim based upon the ADEA.

III. CONCLUSION

For the foregoing reasons, we find that the Poarch Band is entitled to tribal

sovereign immunity from plaintiff’s ADEA claim. Accordingly, we affirm the district

27

Several district courts also have held that Congress has not abrogated tribal sovereign

immunity under the ADEA. See, e.g., Bales v. Chickasaw Nation Industries, 606 F. Supp. 2d 1299,

1308 (D. N.M. 2009) (“Congress did not abrogate tribal sovereign immunity when it enacted the

ADEA.”); Colmar v. Jackson Band of Miwuk Indians, No. CIV S-09-0742 DAD, 2011 WL 2456628

(E.D. Cal. June 15, 2011) (holding in the context of an ADEA claim that an Indian tribe’s sovereign

immunity had not been abrogated by Congress, and subject matter jurisdiction did not exist).

28

Additional Principal Brief for Plaintiff-Appellant, at 18.

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court’s decision to grant the Poarch Band’s motion to dismiss for lack of subject-

matter jurisdiction.

AFFIRMED.

24