In EEOC v. Forest County Potawatomi Community, the Federal District Court for the Eastern District of Wisconsin ruled on May 6, 2014, that the Forest County Potawatomi Community (Tribe), as a proprietor of the Potawatomi Bingo Casino (Casino), must comply with a subpoena issued by the federal Equal Employment Opportunity Commission (EEOC) under the Age Discrimination in Employment Act (“ADEA” or “Act”).
The subpoena relates to a charge of age discrimination filed with the EEOC by a non-member employee of the Casino. The Tribe argued that it is not covered by the ADEA because it is not an “employer” or “person” within the meaning of the Act. The Court found that this argument presented an issue of statutory interpretation, which requires, at least in the Seventh Circuit, that an unambiguous statute of general applicability that is silent on whether it applies to Indian tribes is presumed to apply. The Court found that that ADEA is a law of general applicability because the Act is broadly worded and provides few exceptions. The Court found that “employer,” as defined by the ADEA, “easily encompasses Indian tribes in their capacities as operators of commercial enterprises” and the word “person” includes Indian tribes. Thus, the Court stated there is a presumption that the ADEA applies to Indian tribes.
Citing to the Ninth Circuit Court of Appeals’ decision in Donovan v. Coeur d’Alene, the Court went on to state that this presumption can be rebutted if: (1) the law touches exclusive rights of self-governance in purely intramural matters; (2) the application of the law to the tribe would abrogate rights guaranteed by Indian treaties; or (3) there is proof by legislative history or some other means that Congress intended the statute not to apply to Indians on their reservations. However, the Court found that none of the exceptions apply in this case, and stated that an “employment relationship between a tribe-operated casino and a non-Indian employee, does not touch on any [intermural] matters.”
The Court noted that three other Federal Circuits have determined that the ADEA does not apply to Indian tribes in certain circumstances. First, in EEOC v. Cherokee Nation the Tenth Circuit found the ADEA does not apply to an Indian tribe because the dispute involved Indian treaty rights, which rebutted the presumption that statutes of general applicability apply to Indian tribes. Second, in EEOC v. Fond du Lac Heavy Equipment and Construction Co., Inc., the Eight Circuit found that the ADEA was generally applicable but did not apply to the employment relationship between a tribally-operated construction company and an employee who was a member of the tribe because that relationship involved a strictly intramural matter. Finally, in EEOC v. Karuk Tribe Housing Authority the Ninth Circuit determined that the ADEA did not apply to an employment dispute between a tribe’s housing authority and a tribal member employee because its application to the facts of the case would have intruded on the tribe’s exclusive right to self-governance in intermural affairs and because the tribal housing authority “functions as an arm of the tribal government and in a governmental role….”
Ultimately, the Court found these decisions unpersuasive in the case at hand because there were no treaty rights involved, the employee filing the complaint was not a member of the Tribe, and the casino is not an arm of the Tribe’s government and does not serve in a government role.
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