P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KEVIN M. KOCIAN, Complainant


ERD Case No. CR200304636

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 March 26, 2004
kociake . rsd : 125 : 9

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


In a complaint filed with the Equal Rights Division, which named the Ho-Chunk Casino as the respondent, the complainant alleged that he had been discriminated against on the basis of his race. An Equal Rights Officer issued a preliminary determination dismissing the complainant's complaint on the grounds that the Equal Rights Division did not have jurisdiction over Indian Tribes or business entities owned and operated by Indian Tribes because of their sovereign status.

The complainant filed an appeal following the dismissal of his complaint and the matter was reviewed by ALJ John Brown. Citing case law that business entities owned and operated by Indian Tribes enjoyed the same sovereign immunity as the Indian Tribes themselves, and case law that federal law protected Indian Tribes from the jurisdiction of state courts (and by extension, administrative forums) with respect to claims that arise entirely on tribal land, the ALJ affirmed the preliminary determination's dismissal of the complainant's complaint on the grounds of the Tribe's sovereign immunity and a lack of subject matter jurisdiction because the complainant's claim arose entirely on tribal land.

On appeal from the ALJ's decision, the complainant argues that the respondent should be required to follow the same laws as other employers because it advertises in newspapers outside Tribal lands that it is an equal opportunity employer. Further, the complainant argues that the ALJ's decision is based on "Tribal land business not business conducted off Tribal land."

The complainant's arguments fail. The complainant's claim of discrimination involves alleged discriminatory action by The Ho-Chunk Casino that arose and took place entirely on Tribal lands. As indicated in the cases of Gayle v. Little Six, Inc., 555 N.W.2d 284, 289 (Minn. 1996) and Williams v. Lee, 358 U.S. 217, 223 (1959), cited by the ALJ, state courts (and consequently state administrative forums) have no jurisdiction over Indian entities as the U.S. Supreme Court has determined that state court jurisdiction over tribal activities that took place within Indian country would undermine the congressional aim of encouraging self- government and self-determination by the dependent tribes and "infringe on the right of the Indians to govern themselves."


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uploaded 2004/03/29