Kristan L. Sears, Plaintiff,
Gila River Indian Community et al., Defendants.
ROSLYN O. SILVER, Senior District Judge.
Before the Court is a motion to dismiss by Defendant Gila River Indian Community ("Gila River"). (Doc. 12). For the reasons explained below, this motion will be granted.
Pro se plaintiff Kristan Sears was employed by the Gila River Indian Community Department of Rehabilitation and Supervision ("DRS") until April 2009. (Doc. 11). The nature of the dispute is not entirely clear from the record, but it appears Sears believes she was wrongfully terminated and was not given a grievance hearing. ( Id. ) Sears alleges what seem to be three types of claims: hostile work environment, wrongful termination, and due process violations. ( Id. ) Her hostile work environment claim relates to her alleged poor treatment when she reported the health and safety violations; her wrongful termination and due process claims stem from DRS allegedly not providing Sears with a hearing prior to her termination. ( Id. ) Though her original complaint references the American Indians Torts Liability Act of 1998, the American Indian Equal Justice Act of 1998, the Indian Civil Rights Act, and the Indian Self-Determination and Education Assistance Act, it is unclear under precisely which statutes Sears seeks relief. (Doc. 11). Sears brings her claims against Gila River and other individuals, including the Governor, former Governor, Director, and Deputy Director of DRS, all of whom are employed by and, according to Sears, acted as "agents for" Gila River. Defendant Gila River moves to dismiss the complaint for lack of subject matter jurisdiction based on the doctrines of tribal sovereign immunity and tribal self-governance. (Doc. 12).
I. Legal Standard for Motion to Dismiss
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for a motion to dismiss for lack of subject-matter jurisdiction. A Rule 12(b)(1) motion may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court is permitted to look beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). On a facial challenge, all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. See Wolfe, 392 F.3d at 362; Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979). When a defendant makes a factual challenge "by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject-matter jurisdiction." Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The court need not presume the truthfulness of the plaintiff's allegations under a factual attack. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). However, in the absence of a full-fledged evidentiary hearing, disputes in the facts pertinent to subject-matter are viewed in the light most favorable to the opposing party. Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996). The disputed facts related to subject-matter jurisdiction should be treated in the same way as one would adjudicate a motion for summary judgment. Id.
II. Tribal Sovereign Immunity
Gila River seeks dismissal of the complaint on grounds that tribal sovereign immunity divests the Court of subject matter jurisdiction over all of Sears' claims against it. (Doc. 12). The Court agrees with Gila River.
Tribal sovereign immunity limits a federal court's subject matter jurisdiction over actions brought against an Indian tribe. Alvarado v. Table Mt. Rancheria, 509 F.3d 1008, 1015-16 (9th Cir. 2007). The Supreme Court has held that as a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has expressly waived its sovereign immunity. See Kiowa Tribe of Okla. v. Mfg. Techs., 523 U.S. 751, 754 (1998). There is a strong presumption against waiver of tribal sovereign immunity: waiver of immunity by a tribe may not be implied and must be expressed unequivocally. Kescoli v. Babbitt, 101 F.3d 1304, 1310 (9th Cir. 1996). Similarly, congressional abrogation of sovereign immunity may not be implied and must be "unequivocally expressed" in "explicit legislation." Krystal Energy Co. v. Navajo Nation, 357 F.3d 1055, 1056 (9th Cir. 2004). Tribal sovereign immunity extends to the economic as well as the governmental activities of the tribe, so long as the entity "functions as an arm of the tribe." Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006).
Based on the evidence presented, the Court finds that it lacks jurisdiction to hear Sears' claims due to tribal sovereign immunity. Gila River points to the Federal Registers' listing of Indian tribes as evidence that it is a federally-recognized Indian Tribe. (Doc. 12, citing 77 Fed. Reg. 47, 868, 47, 873 (Aug. 10, 2012)). Inclusion of a tribe on the Federal Register list of recognized tribes is generally sufficient to establish entitlement to sovereign immunity. Ingrassia v. Chicken Ranch Bingo and Casino, 676 F.Supp.2d 953, 957 (E.D. Cal. 2009) ( citing Cherokee Nation v. Babbitt, 117 F.3d 1489, 1499 (D.C. Cir. 1997)). Plaintiff does not contest that Gila River is a federally-recognized Indian Tribe entitled to tribal sovereign immunity or that DRS is its arm; rather she seems to claim that Gila River's immunity has been abrogated by Congress. However, none of the congressional statutes to which Sears cites abrogates tribal sovereign immunity.
First, the Court has not found, and Sears has not provided, any evidence that the American Indians Torts Liability Act of 1998 and the American Indian Equal Justice Act of 1998 have been enacted into law. Second, Sears cites to two additional statutes, which have been enacted into law but do not abrogate Gila River's immunity in this case. The Indian Civil Rights Act ("ICRA") allows for suits against tribal entities only in the narrow instance of habeas relief. In other words, ICRA abrogates tribal sovereign immunity only for claims brought by prisoners seeking post-conviction relief. "Nothing on the face of Title I of the ICRA purports to subject tribes to the jurisdiction of the federal courts in civil actions for [other types of] relief." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1997). Since Sears is not a prisoner seeking post-conviction relief, ICRA's abrogation of immunity for habeas claims does not apply in this case.
Sears also cites to the Indian Self-Determination and Education Assistance Act ("ISDEAA"); yet, nothing in this statute abrogates tribal immunity. The ISDEAA provides legal authority for tribal governments to contract with the federal government and for the federal government to assume authority for providing governmental services, including law enforcement and policing within tribal communities. 25 U.S.C. § 450. Tribal employees who engage in activities in furtherance of such contracts are deemed federal employees and are therefore covered by the Federal Torts Claim Act ("FTCA"). 25 U.S.C. § 450f(c). Importantly, FTCA actions may only be brought against the United States; for individuals with tort claims against a tribal contractor, the FTCA is the exclusive remedy, and FTCA actions may not be brought against Indian tribes, tribal officials or employees. 25 C.F.R. §§ 900.201, 900.208.
Therefore, since Gila River is a federally-recognized Indian Tribe of which DRS is an arm, and Sears points to no evidence that Congress has abrogated the immunity entitled to Gila River and DRS as ...