Antidiscrimination Clause Doesn’t Waive Sovereignty

Antidiscrimination Clause Doesn’t Waive Sovereignty

Carol Berry
2/1/11

DENVER—A tribe’s sovereign immunity from lawsuit is not waived simply because it also complies with an antidiscrimination employment policy, the 10th U.S. Circuit Court of Appeals ruled Jan. 31.

Robert Nanomantube, who is Native, sued the Kickapoo Tribe of Kansas, its Golden Eagle Casino and the tribal council in 2009 after a non-Indian was hired as the casino’s manager, a job for which he had applied, in alleged violation of the tribe’s antidiscrimination and Indian preference policy.

Nanomantube, a former acting manager of the casino, appealed the lower court’s dismissal of his case for its lack of jurisdiction because of the tribe’s sovereign immunity.

The merits of Nanomantube’s case were not addressed by a 10th Circuit three-judge panel that upheld the District Court in Kansas’ dismissing the initial lawsuit because of the jurisdictional issue.

His lawsuit cited the Golden Eagle Casino Employee Handbook, which says the casino “will comply with the provisions of Title VII of the Civil Rights Act of 1964 and 1991, and the Indian Preference Policy of the Kickapoo Tribe in Kansas.”

But while the tribe’s agreement to comply with Title VII may “’convey a promise not to discriminate,” the agreement “in no way constitute(s) an express and unequivocal waiver of sovereign immunity and consent to be sued in federal court,” the justices said.

In fact, “Congress specifically exempted Indian tribes from the definition of ‘employers’ subject to Title VII’s requirements,” they said.

Nanomantube, of Kickapoo descent, said he was fired after the non-Indian was hired as manager. The tribe charged he did not exhaust tribal court remedies before taking the matter to District Court.

The former casino acting manager, in turn, sought $100,000 and reinstatement or damages for various reasons, including loss of income and emotional distress, plus punitive damages.

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