About Us  |  About Cheetah®  |  Contact Us

Indian tribe has sovereign immunity from employee’s ADEA claim

By Dave Strausfeld, J.D.

Tribal sovereign immunity barred the federal age discrimination claim of an employee of a Native American tribal government health department, held the Eleventh Circuit, affirming dismissal of her claim for lack of subject matter jurisdiction. Nothing in the ADEA unequivocally indicated Congress intended to abrogate tribal sovereign immunity. The fact that Congress expressly excluded “Indian tribes” from Title VII’s definition of employer but not from the ADEA’s similar definition was not enough to establish that Congress intended to abrogate tribal sovereign immunity, which must be done in an unmistakable manner. Other circuits have reached a similar conclusion (Williams v. Poarch Band of Creek Indians, October 18, 2016, Smith, L.).

The employee had worked for more than 21 years as the laboratory manager and chief medical technologist in the health department operated by the Poarch Band of Creek Indians, a federally recognized Native American tribe. She alleged she was terminated because of her age and replaced by a woman more than 25 years younger, who “did not have enough experience to be a lab manager.” She filed suit alleging a single claim of discrimination under the ADEA. The Poarch Band moved to dismiss her suit, arguing that the doctrine of tribal sovereign immunity deprived the court of subject matter jurisdiction. The district court granted the motion, and the employee appealed.

Because the Poarch Band had not waived its sovereign immunity, the only way she could bring her suit was to demonstrate that Congress abrogated tribal sovereign immunity when enacting the ADEA.

Comparison of ADEA and Title VII. In arguing that Indian tribes may be sued under the ADEA, the employee relied primarily on a difference in wording between Title VII and the ADEA. When Congress enacted Title VII, it excluded from the definition of employer “the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or a State or political subdivision thereof.” But when it passed the ADEA three years later, Congress apparently patterned the definition of employer on Title VII’s formulation, yet did not mention Indian tribes. According to the employee, that omission indicated Congress intended to abrogate tribal sovereign immunity as a bar to suit under the ADEA.

The employee argued nonetheless that the omission of any mention of Indian tribes in the ADEA abrogates tribal sovereign immunity. In support of her contention, she cited the Supreme Court’s 1976 decision in Fitzpatrick v. Bitzer. In that case, the High Court held the 1972 Amendment to Title VII that deleted the phrase “a State or political subdivision thereof” from the definition of “employer” was sufficient to bring states within the purview of the statute. By that token, she reasoned, Congress’s failure to include the phrase “an Indian tribe” in the list of entities excluded from the ADEA’s definition of “employers” reflected an intent by Congress to abrogate tribal sovereign immunity under the Act.

Ambiguity means no abrogation. But the appeals court rejected this argument. Congress may abrogate a sovereign’s immunity “only by making its intention unmistakably clear in the language of the statute,” the Supreme Court has held. And Congress’ failure to mention Indian tribes in the ADEA “is ambiguous.” The text of the statute was not the “clarion call of clarity” that would be necessary under Eleventh Circuit and Supreme Court precedent to find tribal sovereign immunity abrogated.

“Ambiguity is the enemy of abrogation,” as the Eleventh Circuit has stated. In fact, in the instant case, “one could just as easily conclude from the omission of any reference to Indian tribes in the text of the ADEA, related committee reports, or the floor statements of legislators during consideration of the Act that Congress never considered the ADEA’s impact upon Indian tribes.” Further, Fitzpatrick was distinguishable on other grounds, the appeals court noted.

Statute of general applicability, but…. The employee raised a separate argument rooted in the Supreme Court’s 1960 decision in Federal Power Comm’n v. Tuscarora Indian Nation. She maintained that because the ADEA is a statute of “general applicability,” it presumptively governs Indian tribes and should apply to them unless Congress indicated a contrary intention, which it did not. But the appeals court again was unpersuaded, pointing out there is a difference between being subject to the requirements of a statute and being subject to suits demanding relief for violation of the same statute. While the difference “may be razor-thin,” it is “a distinction that has been acknowledged consistently.”

Thus, “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.”

What other circuits say. Other federal appeals courts—including the Second, Eight, and Tenth Circuits—have similarly held the ADEA does not abrogate tribal sovereign immunity. Finding no reason to disagree with this conclusion, the Eleventh Circuit held that the health department employee’s age discrimination claim against the tribal government was properly dismissed for lack of subject matter jurisdiction.