Wis.LIRC ER Decision: Ninham, Susan - June 25, 1991 - Procedure - Coverage of WFEA - Indian Tribes, tribal immunity; Remedy - Sec. 111.39(4)(c), stating that payments awarded because of violation of sec. 111.321 by an individual are liability of the individual's employer, is attempt to hold employers responsible for discriminatory acts of agents and to provide "deep pocket"

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

SUSAN NINHAM, Complainant

ONEIDA TRIBE OF INDIANS OF WISCONSIN, RESPONDENT A, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8922594

On May 9, 1989, Complainant Susan Ninham filed a sex discrimination complaint with the Department of Industry, Labor and Human Relations (the Department) against the Oneida Tribe of Indians. She alleged that the Tribe refused to employ her as a lifeguard, because she was pregnant, in violation of the Wisconsin Fair Employment Act. On May 19, 1989, Ninham amended her complaint to name the Tribe's Human Resources Manager, Chris Johns, as a respondent.

Neither the Tribe nor Johns ever raised any jurisdictional objection to the complaint. Nonetheless, on July 13, 1989, the Department issued a preliminary determination (by Administrative Law Judge Richard Briles Moriarty) in which the Department concluded that it had jurisdiction over the Tribe and Johns.

On October 2, 1990, after a hearing on Ninham's complaint, the Department (by Administrative Law Judge John Grandberry) issued its decision, concluding that both the Tribe and Johns unlawfully refused to employ Ninham as a lifeguard because she was pregnant. The Tribe and Johns were ordered to cease and desist from such discrimination, and to pay Ninham back pay plus interest.

On October 23, 1990, the Tribe and Johns petitioned for review of the Department's decision by the Labor and Industry Review Commission. The petition challenges the Department's decision on four grounds, but does not raise any jurisdictional objections.

Based upon a review of the record in its entirety, and upon a review of the applicable law, the Labor and Industry Review Commission issues the following:

CONCLUSIONS OF LAW

1. The Oneida Tribe of Indians of Wisconsin is a sovereign Indian tribe.

2. Chris Johns is a tribal official of the Oneida Tribe.

3. Ninham's complaint against the Tribe is barred by the Tribe's sovereign immunity.

4. The Tribe's sovereign immunity was not waived by the enactment of Public Law 280, 28 U.S.C. Sec. 1360.

5. Ninham's complaint against Chris Johns is barred by tribal immunity.

6. The Department lacked jurisdiction to investigate, hear, or decide Ninham's complaint against the Tribe and Johns.

Based upon the CONCLUSIONS OF LAW made above, the Commission now makes the following:

ORDER

That the complaint in this matter is dismissed.

Dated and mailed June 25, 1991.

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The Tribe and Chris Johns have raised no jurisdictional objections to Ninham's complaint. Nevertheless, even though the parties do not raise the issue, the commission may determine the issue sua sponte. Cf. Milwaukee Co. and Labor and Ind. Rev. Comm., 113 Wis. 2d 199, 203, 335 N.W.2d 412 (Ct. App. 1983) (stating that "The laws of this state require courts to observe the limits of their powers and inquire into their jurisdiction over an action, even though the parties do not raise the issue.").

Immunity for the Tribe

The general question of whether suits may be brought against an Indian tribe has been the subject of numerous federal appeals court and U.S. Supreme Court decisions, due to the fact that the larger issue of the degree of autonomy that the Indians retain on their lands has been a persistent and perplexing question virtually since this nation began. It is well settled, however, that because they are sovereign entities, Indian tribes are immune from suits in state or federal court to which they have not consented. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). Such immunity is necessary to preserve the autonomous political existence of the tribes and to preserve tribal assets. Chemehuevi Indian Tribe v. California Board of Equalization, 757 F.2d 1047, 1050 (9th Cir. 1985). A tribe can waive its sovereign immunity. United States v. Oregon, 657 F.2d 1009, 1013 (9th Cir. 1981). Such waiver, however, may not be implied. It must be unequivocally expressed. Martinez, 436 U.S. at 58; United States v. Testan, 424 U.S. 392, 399 (1976); McClendon v. United States, 885 F.2d 627, 629 (9th Cir. 1989).

In addition (and an important point for this case), the mere failure to object to the jurisdiction of a court (or an administrative agency) is insufficient, by itself, to constitute a waiver. Oklahoma Tax Com'n. v. Potawatomi Indian Tribe, __ U.S.__ 111 S.Ct. 905, 909. (1991); United States v. United States Fidelity and Guaranty Company, 309 U.S. 506, 511-513 (1940); cf. State ex rel. Teach. Assts. v. Wisconsin-Madison Univ., 96 Wis. 2d 492, 515, 292 N.W.2d 657 (Ct. App. 1980). Thus, the state may exercise jurisdiction against an Indian tribe under the Fair Employment Act only if the Tribe or the State Legislature expressly waived tribal sovereign immunity from such kind of suits.

Administrative Law Judge (ALJ) Moriarty acknowledged the likelihood that the Tribe's sovereign immunity would bar jurisdiction of Ninham's complaint against the Tribe. Specifically, he wrote that the "The likelihood is that [the sovereign immunity of tribes] was not waived and that any state cause of action against an Indian tribe not explicitly waived by the tribe itself or by other Congressional statute is barred . . ." Moriarty suggested, however, that the Tribe's sovereign immunity was waived by Congress through enactment of Public Law 280. ("This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress. But 'without congressional authorization,' the 'Indian Nations are exempt from suit.' United States Fidelity and Guaranty Co., supra, at 512." Martinez, supra, at 58.) He therefore concluded that the state had jurisdiction to investigate and act on Ninham's complaint. Moriarty's conclusion that the Tribe's sovereign immunity is waived through enactment of P.L. 280 is without merit.

Public Law 280 permits states to exercise jurisdiction "over civil causes of action between Indians or to which Indians are parties . . . to the same extent that such state . . . has jurisdiction over other civil causes of action, and those civil laws of such state . . . that are of general application to private persons or private property shall have the same force and effect within . . . Indian country as they have elsewhere within the state . . ." Simply stated, in Public Law 280, Congress provided that those state civil laws that are generally applicable to private persons or private property may be applied within Indian country as they are in the rest of the state. In Public Law 280, Congress also specifically granted to Wisconsin (one of five states) the authority to exercise jurisdiction over civil causes of action involving Indians. 28 U.S.C.A. sec. 1360(a) (1976).

The Supreme Court discussed the nature of Public Law 280's grant of civil jurisdiction to states most thoroughly in Bryan v. Itasca County, 426 U.S. 373 (1976). In Bryan, the Supreme Court favorably cited a law review article which stated that "[a] fair reading of [Public Law 280] suggests that Congress never intended 'civil laws' to mean the entire array of state noncriminal laws, but rather that Congress intended "civil laws" to mean those laws which have to do with private rights and status. Therefore, 'civil laws' . . . of general application to private persons or private property . . . would not include laws declaring or implementing the state's sovereign powers, such as the power to tax, grant franchises, etc." Id. at 385.

The Supreme Court held in Bryan that, while Public Law 280 did grant to states the authority to extend "private" civil laws to Indian country, P.L. 280 did not grant to states the authority to exercise general civil regulatory control. Id. at 384. The Court stated that if P.L. 280 were read to afford the states the power to extend to reservations all state regulatory measures, the result would be the impermissible undermining or destruction of tribal government and a conversion of any affected tribes into little more than "private, voluntary organizations." Id. at 388. Such a result would contradict the federal government's policy of promoting tribal self-sufficiency.

The Court further stated that the intent of the Congress in granting civil jurisdiction to certain states in Public Law 280 was primarily to provide forums for resolving private legal disputes between reservation Indians and between Indians and other citizens. Id. at 385. Under the Supreme Court's interpretation of Public Law 280, states have jurisdiction only over private civil causes of action involving Indians. California, et al. v. Cabazon Band of Mission Indians, 107 S.Ct. 1083, 1088 (1987). Congress did not intend, however, by enacting P.L. 280, to abolish tribal immunity from state jurisdiction. In re Humboldt Fir. Inc., 426 F.Supp. 292, 295-96 (D.C. Cal. 1977), aff'd sub. nom., United States v. Humboldt Fir. Inc., 625 F.2d 330 (9th Cir. 1980).

The decision of the Department on jurisdiction contends that Calif. Bd. of Equal. v. Chemehuevi Tribe, 474 U.S. 9 (1985), implies that tribal sovereign immunity was waived by P.L. 280. Such reliance appears to form a major part of his decision. Such conclusion or contention, however, is not supported by the case relied upon. In Calif. Bd. of Equal., the Court held that the legal incidence of California's cigarette tax falls on the non-Indian consumers of cigarettes purchased from the Tribe's "smokeshops," and that the legal incidence of tax therefore did not fall on the Tribe, but that the Tribe could be required to collect the tax on behalf of the state, without infringing the Tribe's sovereign immunity. 474 U.S. at 11-12. Public Law 280 is never mentioned in the decision. Moreover, the state tax law involved in that case would not qualify as the type of "civil law" which P.L. 280 authorizes states to enforce. (1 ) Finally, a waiver of sovereign immunity must be more than implicit. It must be clear, unmistakable, and unequivocal. Chemehuevi Indian Tribe v. Cal Bd of Equal, 757 F.2d 1047 (9th Cir. 1985). Consequently, the "implication" upon which the Department's preliminary determination relies is insufficient.

The Department contends that a subsequent court of appeals decision, State of Oklahoma ex rel. Oklahoma Tax Com'n. v. Graham, 822 F.2d 951 (10th Cir. 1987), analyzed the alleged implication in Calif Bd. of Equal. that P.L. 280 waived tribal sovereign immunity, and determined that the Supreme Court had not intended such an implication. The Commission disagrees. There is no mention of P.L. 280 in Graham. Moreover, Calif. Bd. of Equal. is cited by the court of appeals solely for the principle that tribal consent to suit must be unequivocal. 822 F.2d at 956.

Since the Department concluded that Calif. Bd. of Equal. raised the issue of whether P.L. 280 waived tribal sovereign immunity, and implied that there was such a waiver, it then went on to conclude that the Equal Rights Division should exercise jurisdiction over Ninham's complaint against the Tribe "until such time as the issue is resolved at the federal level." The commission rejects the latter conclusion since the former conclusion is simply without foundation in the case law cited. Instead, the Commission concludes that the Tribe's sovereign immunity bans Ninham's complaint against the Tribe. Although this conclusion might be seen as allowing the Tribe to discriminate at will, it gives the appropriate and required deference to the Tribe's sovereign status. Indeed, Title VII of the Civil Rights Act of 1964, as amended, expressly excludes Indian tribes from the definition of "employers" subject to the Act. See 42 U.S.C. sec. 2000e(b). Thus, at least in terms of social policy, Congress reached essentially the same conclusion, i.e., there is no jurisdiction over the Tribe.

Also worth noting for its support of the policy of strict sovereign immunity for tribes is the Supreme Court's decision in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). In that case a female Santa Clara Pueblo Indian sought declaratory and injunctive relief against the Pueblo Tribe under Title I of the Indian Civil Rights Act of 1968 (ICRA). The woman alleged that the tribal ordinance which denied membership in the tribe to children of female members who marry outside the tribe, while extending such membership to children of male members who marry outside the tribe discriminates on the basis of sex and ancestry in violation of the ICRA. In holding that the petitioner was barred from bringing suit against the tribe, the Court wrote, "Nothing on the face of Title I of the ICRA purports to subject tribes to the jurisdiction of the federal courts for injunctive or declaratory relief . . . In the absence here of any unequivocal expression of contrary legislative intent, we conclude that suits against the tribe under the ICRA are barred by its sovereign immunity from suit." Id. at 59.

Immunity for Chris Johns

The Department's preliminary determination also decided that even if Ninham's complaint against the Tribe were banned by the Tribe's sovereign immunity, that such tribal immunity did not afford Johns any protection against Ninham's complaint. Although tribal officials do not have the same immunity as the Tribe itself, tribal immunity does extend to tribal officials "'when acting in their official capacity and within the scope of their authority."' Graham, 822 F.2d at 957, quoting, United States v. Oregon, 657 G.2d 1009, 1012 n. 8 (9th Cir. 1981). The Department decided that tribal immunity did not protect Johns because there was no basis (legally or factually) to conclude that the Tribe authorized Johns to violate the Wisconsin Fair Employment Act.

The Commission disagrees. There is no suggestion that Johns "acted outside the amount of authority that the Tribe is capable of bestowing as a matter of federal or constitutional law . . . the [complaint] only alleges that defendants failed to comply with state law. Thus the . . . exception [to tribal immunity] does not apply." Graham, 822 F.2d at 957. Indeed, regardless of whether the Commission agrees or disagrees with Johns' ultimate decision regarding the employment of a lifeguard in her third trimester of pregnancy, Johns' decision on that question was plainly within the scope of his authority as the Tribe's Human Resources Manager and was made only after consultation with the Tribe's general manager, its doctor, and its insurance carrier.

In addition, where the relief sought (in this case back pay) would operate directly against the Tribe, and thus the suit in substance is against the Tribe rather than against Johns, tribal immunity applies. Graham, 822 F.2d at 957. This result is compelled by sec. 111. 3 9 (4) (c) , Wis. Stats. , which states that " [i]f an examiner awards any payment to an employe because of a violation of sec. 111.321 by an individual employed by the employer, under sec. 111.32(6), the employer of that individual is liable for payment." (emphasis added) (2 ) The Department did not discuss sec. 111.39(4)(c) when it concluded that tribal immunity should not bar Ninham's complaints against Johns. Since the Wisconsin Fair Employment Act would impose liability upon the Tribe for any unlawful discrimination committed by Johns, Ninham's complaint is barred by tribal immunity, even if it could d be said that he was acting outside the scope of his authority. (3 )

The Commission thus concludes that Ninham's complaint against the Tribe and Johns is barred by tribal immunity, and that the Department therefore was without jurisdiction to investigate, hear and decide the complaint. Consequently, the Commission has entered an order dismissing the complaint.

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Footnotes:

(1)( Back ) Although it is not free from doubt, it is assumed for purposes of this opinion (as was done in the decision under review), that the Wisconsin Fair Employment Act could be viewed as a "civil law" under P.L. 280, namely, a law which provides a form for resolving private legal disputes, rather than a law declaring and implementing the state's sovereign powers.

(2)( Back ) This statutory language was added when the Wisconsin Fair Employment Act was amended in 1982. See Ch. 334, sec. 20, Laws of 1981. The bill drafting file provides no hint as to the intended purpose of this language. It appears, however, that it is an attempt to hold employers responsible for the discriminatory acts of their agents, and to provide a "deep pocket" so that prevailing complainants are able to collect back pay awarded to them.

(3)( Back ) This is a situation where the Tribe is compelled to indemnify Johns. It is not a case of voluntary indemnification. Cf. Fiala v. Voight, 93 Wis. 2d 337, 286 N.W.2d 824 (1980).

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