Wardle v. Ute Indian Tribe, 78-1678
| Citation | 623 F.2d 670 |
| Decision Date | 17 June 1980 |
| Docket Number | No. 78-1678,78-1678 |
| Parties | 23 Fair Empl.Prac.Cas. 35, 23 Empl. Prac. Dec. P 31,035 Ray WARDLE, Plaintiff-Appellant, v. The UTE INDIAN TRIBE, a Federal Chartered Corporation; Francis Wyasket; Homey J. Secakuku; Fred A. Conetah; Wilbur Cuch; Irene C. Cuch; and Gary Poowegup, Individually and as members of The Uintah and Ouray Tribe Business Committee; and Michael A. Quinn, Individually and as Chairman of The Ute Tribal Personnel Committee, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
James M. Leventhal, Denver, Colo. (Kenneth N. Kripke, Denver, Colo., and James R. Black, Salt Lake City, Utah, with him, on brief), for plaintiff-appellant.
Scott C. Pugsley of Boyden, Kennedy, Romney & Owens, Salt Lake City, Utah, for defendants-appellees.
Before SETH, Chief Judge, HOLLOWAY and McKAY, Circuit Judges.
Ray Wardle was employed as a policeman for more than seventeen years by the Ute Indian Tribe. Wardle, who is not a member of the tribe, received a notice of discharge in 1973 which explained:
In keeping with the general tribal philosophy and policies as have been stated to all non-tribal member employees on numerous occasions over the years, it is the objective of the tribe to place qualified tribal members in all positions on the Reservation which are being funded with tribal monies. We are now of the opinion that we have several tribal members who can be trained within a short period of time to assume the responsibility of the position of Chief of Police.
Therefore, we wish to thank you for the fine job that you have done for the people of the Ute Indian Tribe and notify you that you will be released from your duties as of 12:00 P.M. February 5, 1973. You will receive all of your annual leave benefits in a lump sum payment at that time.
Thank you again for the fine service you have performed for the tribe and we hope that you will understand that this step is necessary in achieving self-determination for our people and fulfilling the responsibility that has been placed upon the Business Committee to provide opportunities for our people to grow and develop.
Record, vol. 1, at 5.
Wardle filed suit in federal district court seeking damages against the Ute Indian Tribe and various tribal officials. He alleged that he was discharged in violation of the Indian Civil Rights Act, 25 U.S.C §§ 1301 et seq., 1 the Fifth Amendment to the United States Constitution, and various civil rights provisions, 42 U.S.C. §§ 1981, 2 1983, 3 1988, 4 and 2000d. 5
The federal district court for Utah granted the defendants' motion for summary judgment, holding that the defendants had not violated any federally protected right, that the defendants are protected by sovereign immunity, and that the plaintiff had failed to exhaust his tribal remedies. Because we agree with the district court's first ground for granting summary judgment, the absence of any federal cause of action, we do not reach the other grounds.
Although plaintiff attempts to invoke several statutory and constitutional bases for his cause of action, his suit stems only from the allegedly improper discharge from employment. He alleges that he was discharged solely because of his race. Accordingly, the allegations of this case bring it squarely within the provision of Title VII of the Civil Rights Act of 1964 which declares that "(i)t shall be an unlawful employment practice for an employer . . . to discharge any individual . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).
Plaintiff did not bring his suit under this provision, however, because Title VII specifically provides that "(t)he term 'employer' . . . does not include . . . an Indian tribe." 42 U.S.C. § 2000e(b)(1). Title VII also provides:
Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.
42 U.S.C. § 2000e-2(i). Thus, Indian tribes and businesses operating on or near Indian reservations are excluded from the employment discrimination prohibitions of Title VII. The Supreme Court has explained the congressional purpose behind these exemptions for Indian tribes:
There are the . . . affirmative provisions in the 1964 Act excluding coverage of tribal employment and of preferential treatment by a business or enterprise on or near a reservation. 42 U.S.C. §§ 2000e(b) and 2000e-2(i). . . . These 1964 exemptions as to private employment indicate Congress' recognition of the longstanding federal policy of providing a unique legal status to Indians in matters concerning tribal or "on or near" reservation employment. The exemptions reveal a clear congressional sentiment that an Indian preference in the narrow context of tribal or reservation-related employment did not constitute racial discrimination of the type otherwise proscribed.
Morton v. Mancari, 417 U.S. 535, 547-48, 94 S.Ct. 2474, 2481, 41 L.Ed.2d 290 (1974).
In an attempt to escape the exceptions carved out of Title VII in favor of Indian tribes, plaintiff seeks to predicate his cause of action on other federal statutes, as well as the Fifth Amendment. The Supreme Court has already indicated, in a related context, that, because of "the unique legal status of Indian tribes under federal law and . . . the plenary power of Congress . . . to legislate on behalf of federally recognized Indian tribes," Morton v. Mancari, 417 U.S. at 551, 94 S.Ct. at 2483, federal laws granting special employment preferences to Indians do not violate the Fifth Amendment. Id. at 551-55, 94 S.Ct. at 2483-85. In fact, the Court concluded that the preferential treatment accorded to Indians for employment by the Bureau of Indian Affairs
is not even a "racial" preferen...
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