Williams v. Poarch Band of Creek Indians

Decision Date18 October 2016
Docket NumberNo. 15-13552,15-13552
Citation839 F.3d 1312
Parties Christine J. Williams, Plaintiff–Appellant, v. Poarch Band of Creek Indians, Defendant–Appellee
CourtU.S. Court of Appeals — Eleventh Circuit

Candis A. McGowan, L. William Smith, Robert L. Wiggins, Jr., Wiggins Childs Pantazis Fisher & Goldfarb, Birmingham, AL, for PlaintiffAppellant.

James C. Pennington, Matthew Tae Phillips, Ogletree Deakins Nash Smoak & Stewart, PC, Birmingham, AL, Mark H. Reeves, Kilpatrick Townsend & Stockton, LLP, Augusta, GA, for DefendantAppellee.

Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and SMITH,* District Judge.

SMITH, District Judge:

Christine J. Williams, the plaintiff below and appellant here, was employed for more than twenty-one years as the laboratory manager and chief medical technologist in the Health Department operated by the Poarch Band of Creek Indians (“the Poarch Band”), a federally-recognized tribe of Native Americans.1 The Department is located on reservation lands, and positions within it are considered to be jobs of Tribal government.2 Plaintiff asserts that her employment was terminated because of her age (which she described as “over 55”), and that she was replaced by a 28–year–old female who “did not have enough experience to be a lab manager.”3 Plaintiff subsequently filed a complaint in the United States District Court for the Southern District of Alabama, alleging a single claim of discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621

–634 (ADEA). The Poarch Band moved to dismiss the suit, arguing that the doctrine of tribal sovereign immunity deprived the court of subject matter jurisdiction. The Magistrate Judge to whom the action originally was assigned entered a report recommending that the motion be granted.4 Plaintiff's objections were overruled by the District Court Judge, who adopted the Magistrate's Report and Recommendation and dismissed the case.5 This appeal followed. Following review and with the benefit of oral arguments, we affirm.

I. STANDARD OF REVIEW

We review the legal conclusions underlying a district court's dismissal of claims under Federal Rule of Civil Procedure 12(b)(1)

for lack of subject matter jurisdiction de novo ,6 and its findings of jurisdictional facts for clear error. See, e.g. , Houston v. Marod Supermarkets, Inc. , 733 F.3d 1323, 1328 (11th Cir. 2013). “The burden for establishing federal subject matter jurisdiction rests with the party bringing the claim.” Sweet Pea Marine Ltd. v. APJ Marine, Inc ., 411 F.3d 1242, 1247 (11th Cir. 2005) (citation omitted). If the plaintiff fails to shoulder that burden, the case must be dismissed. E.g. , In re Trusted Net Media Holdings, LLC , 550 F.3d 1035, 1042 (11th Cir. 2008) ([I]f the court determines that subject matter jurisdiction is lacking, it must dismiss the entire case.”) (alteration supplied).

II. DISCUSSION

The principle that American Indian tribes possess “sovereignty”—that they are a group of people bound together by ties of common heritage, exercising dominion over a defined geographical area, and possessing the fundamental right of self-government through the enactment and enforcement of substantive laws within that territory—is a precept that preceded the creation of the United States government.7 That belief is reflected in statements made by Alexander McGillivray, the principal chief of the “Upper Creek” confederation from 1782 until his death in 1793.8 McGillivray pushed to centralize Creek authority in the present states of Alabama and Georgia.9 Following the 1783 Treaty of Paris that formally ended the American Revolution, he authored a letter on behalf of the Creek, Chickasaw, and Cherokee Indian nations that angrily protested the nascent American government's assertion of title to—as well as the English Monarchy's cession of—“our lands ”:

We Cheifs and Warriors of the Creek Chickesaw and Cherokee Nations, do hereby in the most solemn manner protest against any title claim or demand the American Congress may set up for or against our lands, Settlements, and hunting Grounds in Consequence of the Said treaty of peace between the King of Great Brittain and the States of America declaring that as we were not partys, so we are determined to pay no attention to the Manner in which the British Negotiators has drawn out the Lines of the Lands in question Ceded to the States of America—it being a Notorious fact known to the Americans, known to every person who is in any ways conversant in, or acquainted with American affairs, that his Brittannick Majesty was never possessed either by session purchase or by right of Conquest of our Territorys and which the Said treaty gives away . On the contrary it is well known that from the first Settlement of the English colonys of Carolina and Georgia up to the date of the Said treaty no title has ever been or pretended to be made by his Brittanic Majesty to our lands except what was obtained by free Gift or by purchase for good and valuable Considerations .

John Walton Caughey, McGillivray of the Creeks 91 (Norman: University of Oklahoma Press 1938) (1959 Reprint) (misspellings in original, emphasis supplied).

McGillivray's mixed-race heritage and experiences10 molded him into “a literate and erudite bicultural Creek”11 —a man whose superior negotiation skills earned him the title of “the Talleyrand of Alabama”12 after leading a delegation of thirty powerful Creek chiefs and warriors to New York City, the first capitol of George Washington's fledgling government, during July of 1790. There he negotiated with Secretary of War Henry Knox the first treaty ratified under the new Constitution. McGillivray insisted that “sovereignty was one of the Indian nations' ‘natural rights ... which belong[ed] to our ancestors and hath descended from them to us Since the beginning of time.’13 The resulting “Treaty of New York,” as it became known to history,

optimistically established “perpetual peace and friendship” between America and the entire Creek nation and settled the boundary between the state of Georgia and the Creeks, with the Creeks agreeing to give up roughly two-thirds of the land Georgia had claimed under the previous treaties. The Creeks also promised to return prisoners taken during the border conflicts of the 1780s. In exchange for the territory, the Creeks received a perpetual annuity of $1,500 as well as a gift of trade goods and other items. The nation-to-nation relationship and respect for tribal sovereignty was a continuation of British policy established in the eighteenth century, which took Indian affairs out of the hands of the colonies and centralized them in the hands of an imperial “Indian department.” The exclusive right of the United States to treat with Indian tribes (as opposed to individual states) was embedded in the Constitution.

Kathryn H. Braund, The Creeks Take New York , 122 Alabama Heritage 19, Fall 2016 (emphasis supplied).14

McGillivray's insistence that the federal government acknowledge the existence of Native American sovereignty has been reflected in numerous decisions of the United States Supreme Court. See, e.g. , Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma , 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991)

(“Indian tribes are ‘domestic dependent nations' that exercise inherent sovereign authority over their members and territories.”) (quoting Cherokee Nation v. Georgia , 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831) ); Santa Clara Pueblo v. Martinez , 436 U.S. 49, 55–56, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (stating that Indian tribes “have power to make their own substantive law in internal matters, and to enforce that law in their own forums”) (citations omitted); United States v. Mazurie , 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) (“Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory.”); United States v. Kagama , 118 U.S. 375, 381–82, 6 S.Ct. 1109, 30 L.Ed. 228 (1886) (observing that Indian tribes are “a separate people, with the power of regulating their internal and social relations”); Worchester v. Georgia , 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483 (1832) (holding that Indian tribes are “distinct, independent political communities, retaining their original natural rights” in matters of self-government).

For such reasons, Indian tribes benefit from the same “common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo , 436 U.S. at 58, 98 S.Ct. 1670

(citations omitted). Even so, that immunity is not absolute, but subject to the plenary power of Congress to limit, modify, or eliminate altogether. See, e.g. , Oklahoma Tax Commission , 498 U.S. at 510, 111 S.Ct. 905 (Congress has always been at liberty to dispense with such tribal immunity or to limit it.”); Talton v. Mayes , 163 U.S. 376, 384, 16 S.Ct. 986, 41 L.Ed. 196 (1896) (“Indian tribes are subject to the dominant authority of congress.”).

Thus, 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. See, e.g. , Oklahoma Tax Commission , 498 U.S. at 509, 111 S.Ct. 905

(citing Santa Clara Pueblo , 436 U.S. at 58, 98 S.Ct. 1670 ); Kiowa Tribe v. Manufacturing Technologies, Inc ., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) (holding that “an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity”).

There is no evidence that the Poarch Band waived its immunity, either generally or in the present suit.15 Therefore, the Tribe retains its common law exemption from suit, unless plaintiff demonstrates that Congress abrogated the doctrine of tribal sovereign immunity when enacting the ADEA.

A. Plaintiff's Comparison of the Definitions of the Term “Employer” Found in the ADEA and ...

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