Native American Tribes Cannot Be Sued Under the ADEA

Native American tribes enjoy sovereign immunity from suit under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634.  This was the holding of the Eleventh Circuit’s published opinion in Williams v. Poarch Band of Creek Indians, 2016 WL 6081345 (11th Cir. Oct. 18, 2016).  This case clarifies principles of statutory interpretation and reaffirms the “razor-thin” distinction between being subject to the requirements of a statute and being subject to a suit demanding compliance with those requirements.

Williams involved claims of age discrimination brought by a laboratory manager and chief medical technologist in the health department operated by the Poarch Band of Creek Indians, a federally-recognized tribe of Native Americans.  The plaintiff asserted that she was terminated because of her age (“over 55”) and replaced by a 28-year-old employee who “did not have enough experience to be a lab manager.”  The claims were dismissed by the district court for lack of subject-matter jurisdiction on the grounds of tribal sovereign immunity, and the Eleventh Circuit affirmed.

As a starting point, the Court explained that Indian tribes generally enjoy sovereign immunity from civil suit unless they clearly waive sovereign immunity or Congress expressly abrogates it. With no evidence of waiver, the plaintiff argued that Congress had expressly abrogated the sovereign immunity of Indian tribes under the ADEA by explicitly excluding Indian tribes from suit under Title VII (as originally enacted), mirroring that definition of “employer” in enacting the ADEA, but excluding an exception for Indian tribes in the ADEA.  The plaintiff argued that this failure to include an exception for Indian tribes when otherwise replicating the language of Title VII amounted to a deletion of the exception, which the Supreme Court recognized as an express congressional abrogation of sovereign immunity in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).

The Eleventh Circuit found this argument unpersuasive for three reasons. First, failure to include a phrase that never existed in the statute does not amount to a deletion of the phrase.  Second, silence in the text and legislative history on Congress’s intent concerning whether to abrogate sovereign immunity is at least ambiguous instead of expressing the “clarion call of clarity” required for abrogation, as one could just as easily conclude that Congress never considered the issue.  Third, the plaintiff misconstrued the central issue in Fitzpatrick, which was about Congress’s authority to abrogate a state’s sovereign immunity based on the Enforcement Clause of the Fourteenth Amendment. In other words, its holding did not provide a general rule of statutory interpretation.

The plaintiff next argued that the ADEA is a statute of general applicability, which applies to all except those Congress expressly excludes. Sure, the Eleventh Circuit responded, the ADEA may apply to Indian tribes, but it does not necessarily follow that they may be sued for violating it, as the Court held in Florida Paraplegic Association v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999).  The Court also noted that its ruling is consistent with decisions by the Tenth, Second, and Eight Circuits.

Posted by Keith Emanuel.

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