On October 18, 2016, the U.S. Court of Appeals for the Eleventh Circuit ruled that the Age Discrimination in Employment Act (the ADEA) does not abrogate tribal sovereign immunity. The court’s ruling is consistent with similar rulings by other federal courts of appeal.
In Williams v. Poarch Band of Creek Indians, No.15-13552 (11th Cir. Oct. 18, 2016), an employee of the Poarch Band of Creek Indians (the Tribe) sued the Tribe alleging that she had been fired because of her age and replaced by a younger employee, a violation of the ADEA, 29 U.S.C. §§ 621-634. The Tribe moved to dismiss the claim on the ground that tribal sovereign immunity prevented her suit. The district court ruled in favor of the Tribe and the Eleventh Circuit affirmed.
Given that the Tribe had not waived its own sovereign immunity, the Eleventh Circuit analyzed the ADEA to see if Congress had abrogated tribal sovereign immunity when it passed the law in 1967. Williams had argued that Congress waived tribal sovereign immunity when it passed the ADEA because Congress failed to include Indian tribes in the list of exempt entities. Williams said that because Congress had included Indian tribes in the list of exempt entities when it passed the Civil Rights Act three years earlier, its failure to include tribes in the ADEA meant that Congress intended to waive tribal sovereign immunity. She argued that Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) controlled the case. In Fitzpatrick, the Supreme Court held that states could be sued under the Civil Rights Act after Congress removed them from the list of entities immune from suit.
The court rejected Williams’ arguments. The court began its analysis with a powerful discussion of tribal sovereignty, quoting from the letters of Creek Chief Alexander McGillivray, the 1790 Treaty of New York, and numerous Supreme Court cases. The court wrote that the Tribe’s sovereignty means “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.”
The court distinguished Fitzpatrick by stating it involved the power of Congress under the Enforcement Clause of the Fourteenth Amendment to limit the states’ Eleventh Amendment immunity, and furthermore that Congress had specifically amended the Civil Rights Act in 1972 to remove the states as “employers”. Thus, the Fitzpatrick case presented a totally different constitutional issue as well as one where Congress had acted proactively to create a statutory waiver of sovereign immunity. The court also found that the ADEA’s language and legislative history as to its applicability to Indian tribes was ambiguous and not the “clarion call of clarity” required to waive tribal sovereign immunity.
The Eleventh Circuit further held that even if the ADEA did apply to the Tribe as a statute of general applicability – one that does not mention Indian tribes – that does not mean that Congress waived the Tribe’s sovereign immunity. The court wrote, “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.”
Finally, the Eleventh Circuit cited decisions of other federal courts of appeal, noting that the Tenth Circuit, Second Circuit, and Eighth Circuit all have found that the ADEA does not waive tribal sovereign immunity.
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