Thomas v. Dugan

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KARLA ANDREA THOMAS; ROBERT

BRENT MILLER,

Plaintiffs-Appellants,

v.

JOYCE DUGAN, Chief, individually,

and as Principal Chief of the

No. 97-2717

Eastern Band of Cherokee Indians;

EASTERN BAND OF CHEROKEE INDIANS;

TRIBAL CASINO GAMING ENTERPRISE

BOARD, and each individual board

member listed herein as John Does;

CHEROKEE TRIBAL CASINO,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of North Carolina, at Bryson City.

Lacy H. Thornburg, District Judge.

(CA-97-177-C-2, CA-97-178-T-2)

Submitted: November 17, 1998

Decided: December 31, 1998

Before ERVIN, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Russell L. McLean, III, LAW OFFICE OF RUSSELL L. MCLEAN,

III, Waynesville, North Carolina, for Appellants. Frank G. Queen,

BROWN, QUEEN, PATTEN & JENKINS, P.A., Waynesville, North

Carolina; Michael L. Bonfoey, BROWN, WARD & HAYNES, P.A.,

Waynesville, North Carolina; Bradley B. Letts, Cherokee, North Car-

olina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Karla Andrea Thomas and Robert Brent Miller appeal

from a district court order that dismissed their civil action under Fed.

R. Civ. P. 12(b)(6). Appellants alleged that their employment with the

Cherokee Indian Tribal Casino was terminated because they are non-

Indians and that such racial discrimination violated federal and state

law. Because we agree with the district court's conclusion that the

tribal entities are immune from such a suit, we affirm.

We review a district court's dismissal for failure to state a claim

under Fed. R. Civ. P. 12(b)(6) de novo. See Mylan Labs., Inc. v.

Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A motion to dismiss for

failure to state a claim should not be granted unless it appears that the

plaintiffs can prove no set of facts which would support their claim

and entitle them to relief. See id. (citations omitted). The court should

accept all well pleaded allegations as true and view the complaint in

the light most favorable to the plaintiffs. See id.

An Indian tribe is specifically excluded from the definition of "em-

ployer" under 42 U.S.C. § 2000e(b) (1994). Therefore, the district

court properly held that Appellants' Title VII claims fail for that rea-

son. Moreover, the district court properly found that Indian tribes gen-

erally enjoy a common law immunity from suit. See Hardin v. White

Mountain Apache Tribe, 779 F.2d 476, 478-79 (9th Cir. 1985). Tribal

entities and individual tribal officers acting within their representative

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capacity within the scope of their authority are also shielded by sover-

eign immunity. See id. at 479; see also Merrion v. Jicarilla Apache

Tribe, 455 U.S. 130 (1982) (discussing tribal sovereign authority to

tax). Indian tribes are "quasi-sovereign nations which, by government

structure, culture, and source of sovereignty are in many ways foreign

to the constitutional institutions of the Federal and State Govern-

ments." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 71 (1978).

Thus, the district court correctly dismissed Appellants' federal claims

on grounds of sovereign immunity. Because Appellants' federal

claims were properly dismissed, so were the remaining state law

claims. See 28 U.S.C. § 1367(c)(3) (1994).

For these reasons, we affirm the district court's order. We previ-

ously granted the parties' motion to submit this appeal on the briefs

without oral argument because the facts and legal issues are ade-

quately presented in the materials before the Court and argument

would not aid the decisional process.

AFFIRMED

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