Tenth Circuit Holds Tribal Sovereign Immunity Not Waived by Tribe's Agreement to Comply with Employment Discrimination Provisions of Title VII

On January 31, 2011, the United States Court of Appeals for the Tenth Circuit issued a decision in Nanomantube v. Kickapoo Tribe in Kansas, No. 09-3347 (10th Cir. Jan. 31, 2011), in favor of the Kickapoo Tribe in Kansas (“Tribe”). The Tenth Circuit upheld the district court’s dismissal of the plaintiff’s Title VII employment discrimination suit for lack of subject-matter jurisdiction. The lower district court recognized that “Indian tribes enjoy the same immunity from suit enjoyed by sovereign powers and are ‘subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.'” Nanomantube v. Kickapoo Tribe in Kansas, No. 09-4107 at 3 (W.D. Okla. Nov. 5, 2009) (citing Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998)). The Tenth Circuit Court of Appeals was called upon to decide whether an Indian tribe’s voluntary agreement to comply with provisions of Title VII constitutes a clear and unequivocal waiver of the tribe’s sovereign immunity from suit. The Court agreed with the lower district court’s determination that sovereign immunity had not been waived and affirmed the dismissal.

The plaintiff in the case, Robert Nanomantube (“Nanomantube”), is a non-tribal member Indian of Kickapoo descent. He served as the acting manager of the Tribe’s unincorporated casino prior to being replaced by a non-Indian. Nanomantube claimed that, as a tribal descendent, he was entitled to Indian preference under the Tribe’s employment policies. Nanomantube’s claim rested on the theory that hiring a non-Indian to a position for which Nanomantube applied violated the Tribe’s antidiscrimination and Indian preference policy. Further, Nanomantube alleged that the Tribe violated federal Title VII antidiscrimination policy because the Tribe’s Golden Eagle Casino employee handbook expressly states that it will and does comply with the provisions of Title VII of the Civil Rights Act of 1964 and 1991 (“the Act”). Nanomantube argued that the Tribe’s express commitment to comply with the provision of the Act was an unequivocal waiver of the Tribe’s sovereign immunity as to employment claims brought by employees of the Golden Eagle Casino. Nanomantube also averred that the clear and unequivocal language in the handbook left no reasonable interpretation other than that the Tribe had agreed to subject itself to the provisions of the Act and federal jurisdiction for enforcement and remedial action. Nanomantube Opening Brief at 6.

Nanomantube cited C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001), in support of his claims. There, the Tribe had entered into a form construction contract containing an arbitration agreement. The other party to the contract sued the Tribe in federal court asserting that the tribe had waived sovereign immunity. The contract contained the following provision:

All claims or disputes between the Contractor [C & L] and the Owner [the Tribe] … shall be decided by arbitration in accordance with the Construction [I]ndustry Arbitration Rules of the American Arbitration Association. … The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

The C&L Enterprises court found that the arbitration clause itself contained an unequivocal waiver. The clause expressly provided that the judgment could be entered “in accordance with applicable law in any court,” and provided that Oklahoma law would apply. Because Oklahoma law provided for the filing and enforcement of arbitration awards in Oklahoma state courts, the Supreme Court held that the Tribe had expressly agreed to judgment being filed and enforced against it in the Oklahoma state district court.

Nanomantube also relied on the Tenth Circuit’s statement in Native Am. Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1293 (10th Cir. 2008), that “[i]t is also undisputed that the Seneca-Cayuga Tribe has unequivocally waived its own immunity via the ‘sue or be sued’ clause in [its] Corporate Charter.”

In its recent Nanomantube decision, the Tenth Circuit stated:

We are not persuaded that a tribe’s agreement to comply with Title VII, without more, constitutes an unequivocal waiver of tribal sovereign immunity. In contrast to the C&L contract or the Native American Distributing charter, the Tribe’s handbook in this case contained no reference to tribunals at which disputes could be resolved or legal remedies enforced . . . . Rather, the Tribe simply agreed to comply with the provisions of Title VII, with no reference to any forum where this agreement could be enforced. Although some ambiguity may be created by the fact that Title VII includes jurisdictional and enforcement provisions, this ambiguity falls well short of creating an unequivocal expression of waiver.

Order at 4–5.

The Court recognized that the Tribe’s agreement to comply with Title VII, like similar agreements to comply with other federal statutes, may convey a promise not to discriminate. But, the Court held, such an agreement in no way constitutes an express and unequivocal waiver of sovereign immunity and consent to be sued in federal court.

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