Mark S. Allen v. Gold Country Casino the Berry Creek Rancheria of Tyme Maidu Indians Mattie Mayhew
Docket: 05-15332
Court: Court of Appeals for the Ninth Circuit; September 29, 2006; Federal Appellate Court
Mark S. Allen, a former surveillance supervisor at Gold Country Casino, sued the casino and the Tyme Maidu Tribe after his termination. The district court dismissed claims against both the Tribe and the Casino based on sovereign immunity. While Allen conceded the Tribe's immunity, he argued that the district court incorrectly applied this immunity to the Casino without assessing the relationship between the Tribe and the Casino, which he contends should be evaluated using a three-part test to determine if the Casino operates as an arm of the Tribe. The court found that the Casino indeed functions as such and upheld the dismissal of claims against it. However, the court reversed part of the dismissal concerning claims against tribal member Mattie Mayhew and remanded for further consideration of Allen's claims under 42 U.S.C. §§ 1981 and 1985, as well as any relevant state law claims. Allen's initial claims arose from alleged retaliation linked to his reporting of health violations and seeking guardianship of tribal children. The appellate court reviewed the district court's dismissals de novo, focusing on issues of sovereign immunity and subject matter jurisdiction.
Sovereign immunity protects tribes from lawsuits, extending to both governmental and business activities, as established in Kiowa Tribe v. Mfg. Techs. Inc. This immunity applies to entities functioning as arms of the tribe, as seen in cases like Marceau v. Blackfeet Hous. Auth. and Redding Rancheria v. Super. Ct., where tribal entities engaged in activities like operating casinos were granted immunity. The distinction between business and governmental activities is irrelevant; the key factor is whether the entity acts as an arm of the tribe. Allen's argument against the district court's ruling overlooks the fact that the Casino is owned and operated by the Tribe, which requires government approvals and compacts under the Indian Gaming Regulatory Act (IGRA). The IGRA aims to foster tribal economic development and ensure tribes benefit primarily from gaming operations. The Casino's operation is directly tied to the Tribe's financial integrity and self-sufficiency. Given the Tribe's ownership and control, the Casino is deemed an arm of the Tribe and is thus entitled to sovereign immunity, consistent with legal precedents affirming that tribal entities enjoy the same immunity as the tribes themselves.
The Casino did not waive its sovereign immunity by stating in Allen's employment application that termination could occur "for any reason consistent with applicable state or federal law" or by asserting equal opportunity employment in its Employee Orientation Booklet. Such statements do not constitute a "clear" waiver of immunity, as established in C. L. Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe, which requires explicit expressions of waiver. Unlike the cases cited, C. L. Enterprises and Marceau, where explicit agreements to arbitration or consent to sue were present, the Casino's statements lacked any clear intent to allow legal actions against it.
Allen's argument for analogizing the Casino's waiver of immunity to the Foreign Sovereign Immunities Act (FSIA) is rejected, as the Tribe is not governed by FSIA exceptions. The historical breadth of tribal sovereign immunity remains intact without congressional limitation, as noted in Richardson v. Mt. Adams Furniture and Kiowa Tribe v. Manufacturing Technologies, Inc. Furthermore, FSIA allows for implied waivers of immunity, while the Supreme Court does not permit such implications for Indian tribes. Therefore, the court declines to apply FSIA principles to tribal sovereign immunity.
The district court erred in dismissing Allen's remaining claims against Mayhew and unnamed defendants, which included allegations under 42 U.S.C. 1985 and 1981. Despite the complexity of Allen's pro se pleadings, they should be liberally construed, allowing him the opportunity to amend his complaint. The dismissal of Allen's state-law claims for lack of supplemental jurisdiction is vacated, permitting the district court to reassess its jurisdiction. However, the court correctly dismissed Allen's claims under 18 U.S.C. 241 and 242, as these are criminal statutes that do not allow for civil liability, and claims under 28 U.S.C. 1343 and 42 U.S.C. 1983 were also dismissed due to a lack of actionable basis. The judgment dismissing claims against the Tribe and Casino based on sovereign immunity is affirmed. The parties will bear their own costs on appeal. The ruling is affirmed in part and vacated and remanded in part for further proceedings.
