Federal courts must often grapple with the question of jurisdiction over claims brought by a plaintiff against a tribal entity or tribe pursuant to statutes of general applicability, such as the Civil Rights Act and the Age Discrimination in Employment Act ("ADEA") or the Employee Retirement Income Security Act of 1974 ("ERISA"). Challenges to federal court jurisdiction arise either as a result of tribal sovereign immunity or based on the doctrine of exhaustion of tribal remedies. Three recent decisions illustrate these challenges.
Sovereign Immunity Bars Federal Court Jurisdiction over Title VII and ADEA Claims Against an Indian Owned Business: Tremblay v. Mohegan Sun Casino, No. 14-2031-cv, 2015 WL 1529041 (2nd Cir. Apr. 7, 2015): On April 7, 2015, the United States Court of Appeals for the Second Circuit affirmed the lower court's decision to dismiss Elizabeth Tremblay's discriminatory discharge claims against Mohegan Sun Casino, a corporation owned by an agency of the federally recognized Mohegan Tribe of Connecticut. Ms. Tremblay brought her discriminatory discharge claims under Title VII of the Civil Rights Act and the ADEA. The court held that the district court's dismissal of her Title VII claim was proper as the court did lack subject matter jurisdiction, reasoning that Title VII expressly excludes American Indian tribes from its definition of covered employers, which extends to the arms and agencies of the tribe. Because Mohegan Sun Casino is wholly-owned by a Mohegan Tribe agency, the court held that it is not an employer under Title VII.
The Second Circuit also affirmed the dismissal of Ms. Tremblay's ADEA claim because the court held that Congress has yet to unequivocally abrogate tribal sovereign immunity pursuant to the ADEA. Ms. Tremblay failed to identify any other applicable waiver of immunity from such suits in federal court. Therefore, the Second Circuit held that tribal sovereign immunity barred both Ms. Tremblay's Title VII and ADEA claims.
Exhaustion of Tribal Court Remedies Not Required for Non-Member Employee's ERISA Claim: Coppe v. The Sac & Fox Casino Healthcare Plan, Case No. 14-2598-RDR, 2015 WL 1137733 (D. Kan. Mar. 13, 2015): On March 13, 2015, the United States District Court for the District of Kansas held that tribal courts do not have jurisdiction over ERISA actions. In Coppe, a non-member of the Sac and Fox Nation alleged that the defendants refused to pay her medical expenses under the provisions of the Sac & Fox Casino Healthcare Plan, which was an employee benefit she received while working for the casino and which is governed by ERISA. The court first noted that the Healthcare Plan was not considered a "governmental plan" under ERISA, which is a plan established and maintained by an Indian tribe for employees of a non-commercial tribal entity. See 29 U.S.C. § 1002(32). "Governmental plans" are not regulated by ERISA, so the fact that the Plan was a nongovernmental plan brought it within ERISA's reach.
Relying on the United States Supreme Court's decision in Nevada v. Hicks,1 the Kansas federal district court held that tribal courts are not courts of general jurisdiction, and without an explicit grant of jurisdiction over ERISA claims by Congress, tribal courts lack jurisdiction over such claims. Moreover, the court reasoned that a tribe's right to govern its members and regulate activity on its reservation "does not exclude federal authority as expressed in ERISA to occupy and preempt the field of ERISA rights enforcement for nongovernmental plans." The court thus held that exhaustion of tribal court remedies was not required, allowing the case to proceed in federal court. Unlike Title VII and the ADEA, courts have held that tribal sovereign immunity is waived for ERISA claims for non-governmental plans.2
Exhaustion of Tribal Remedies Required under ERISA: Life Ins. Co. of N. Am. v. Hudson Ins. Co., No. CIV-15-064-RAW, 2015 WL 1966667 (E.D. Okla. Apr. 30, 2015): On April 30, 2015, United States District Court for the Eastern District of Oklahoma clarified that "[c]omplete preemption under ERISA is limited to claims brought under § 502(a) [29 U.S.C. § 1132(a)] and that provision, in turn, is limited by its terms to claims by a participant or beneficiary of an ERISA-regulated plan to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan or to clarify his rights to future benefits under the terms of the plan." Because the case was not brought by a participant or beneficiary to recover benefits or enforce or clarify rights under a plan, the court held that complete preemption did not apply and exhaustion of tribal remedies was required.
Take-Away: These cases demonstrate that, while statutes of general applicability may apply to a tribal enterprise, a claim brought pursuant to such statute may nevertheless be barred by the tribe or tribal entities' immunity from suit or may have to be brought in the first instance in a tribal forum.