ALEKSANDRA CICHOWSKI, Complainant
HO-CHUNK HOTEL AND CONVENTION CENTER, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed August 17, 2001
cichoal . rsd : 125 : 9
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
Aleksandra Cichowski filed a complaint with the Equal Rights Division alleging sexual harassment and retaliation by her supervisor, Boguslav Winkowski, and the Ho-Chunk Hotel and Convention Center. The division issued a Preliminary Determination and Order dismissing the complaint on the ground that the Ho-Chunk Hotel and Convention Center is a business owned by the Ho-Chunk Nation, which has sovereign immunity. Ms. Cichowski filed a timely appeal and the matter was referred to ALJ John Brown for review.
The ALJ affirmed the preliminary determination for the following reasons: (1) Indian Tribes are immune from suit under the Wisconsin Fair Employment Act because of their sovereign status, citing, Ninham v. Oneida Tribe of Indians of Wisconsin (LIRC, 6/25/91); (2) business entities owned and operated by Indian Tribes enjoy the same immunity as the Indian Tribe itself does, citing, Local IV-302 Int'l. Woodworkers Union v. Menominee Tribal Enterprises, 595 F. Supp. 859 (E.D. Wis. 1984) and Barker v. Menominee Nation Casino, 897 F. Supp. 389 (E.D. Wis. 1995); (3) where the claim arises entirely on tribal land, such as this claim, this gives the Indian Tribe another defense -- lack of subject matter jurisdiction, citing, Gavle v. Little Six, Inc., 555 N.W.2d 284 (Minn. 1996); (4) even if there were not sovereign immunity and there were subject matter jurisdiction, this case should not proceed because Ms. Cichowski has a claim pending in the Tribal Courts, and the U.S. courts have long held that for the sake of comity matters should not be prosecuted in U.S. courts while jurisdiction lies in Tribal Courts, and should not be relitigated if resolved in those courts, citing, Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987); and (5) the complaint against Mr. Winkowski should also be dismissed because under the WFEA supervisors who commit sexual harassment on the job are not financially responsible to the complainant for their actions, and further, individual supervisors should not be named separately as respondents where the alleged action arose out of actions taken by the supervisor as an agent of the employer, citing, respectively, Powell v. Salter (LIRC, 7/11/97) and Yaekel v. DRS Limited and Bryan Clapper (LIRC, 11/22/96).
The cases cited by the ALJ fully support his decision to affirm the preliminary determination and to dismiss Ms. Cichowski's complaint.
On appeal Ms. Cichowski apparently questions how land obtained by an Indian Tribe can be said to acquire sovereign status when the Indian Tribe still pays taxes to the county for such land. The answer to this question appears to be as follows: "...only income derived from the rental of trust land itself or the exploitation of natural resources thereon, including most agricultural uses, is tax exempt. Income derived primarily from substantial investment in improvements on the land and business activity related to those improvements is taxable." Beck v. Commissioner of the Internal Revenue Service, 1995 U.S. Lexis (4th Cir. 1995), citing, Critzer v. United States, 597 F.2d 708 (Ct. Cl. 1979), cert. denied, 444 U.S. 920 (1979)(emphasis added).
Ms. Cichowski further questions why the law (apparently such as the Fair Employment Law) does not apply to the business on the land which the Indian Tribe pays taxes to the county. As noted above, it is because the business entities owned and operated by Indian Tribes enjoy the same sovereign immunity as the Indian Tribe itself does. Local IV Int'l. Woodworkers Union, supra., Barker, supra.
Ms. Cichowski also asks, what is the "Indian Country?" The term "Indian Country" is defined in Gavle, 555 N.W.2d at 287, fn. 1 as "includ(ing) land within Indian reservations, dependent Indian communities, and Indian allotments." (Citation omitted). Clearly, business entities owned and operated by the Indian Tribe on land owned by the Indian Tribe is considered part of the "Indian Country."
Ms. Cichowski further asks where she is able to complain if she is being "threatened, harassed, (and) retaliated" against before it goes to court. Apparently Ms. Cichowski is asking where is she able to complain before the matter is decided by the Tribal Court. Ms. Cichowski previously filed a claim with the Ho-Chunk Nation Tribal Court on February 23, 2001. Since Indian Tribes are immune from suits in state or federal court to which they have not consented, the answer to this question is the Tribal Court.
John S. Swimmer
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