United States District Court, D. Alaska
ORDER RE MOTION TO DISMISS
Sharon
L. Gleason UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 9 is Defendant Alaska Native Tribal
Health Consortium's (“ANTHC”) Motion to
Dismiss. Plaintiff Elena Barron opposed at Docket 12. ANTHC
replied at Docket 13. Oral argument was not requested and was
not necessary to the Court's decision.
BACKGROUND
ANTHC
is a tribal organization that provides health care services
to Alaska Natives, American Indians, and other eligible
individuals pursuant to Titles I and V of the Indian
Self-Determination and Education Assistance Act, 25 U.S.C.
§§ 5321-32, 5381- 99; the Alaska Tribal Health
Compact; and a Funding Agreement with the Secretary of Health
and Human Services.[1] Ms. Barron is a respiratory therapist
formerly employed by ANTHC.[2] Ms. Barron's Complaint
alleges as follows:
Ms.
Barron began her employment with ANTHC in November
2016.[3] Shortly after beginning work, Ms. Barron
heard other employees discussing “HR hires” in a
manner that “cast HR hires in a negative
light.”[4] Ms. Barron later asked department director
Craig Bevercomb if she was considered a “HR hire,
” and he replied that she was.[5] Ms. Barron alleges that over
the course of the next several weeks, Ms. Barron's
supervisor Zachary Malbalay treated Ms. Barron - who is a
Native Alaskan - differently than her Caucasian
coworkers.[6] Mr. Malbalay required Ms. Barron to
conduct a procedure that a Caucasian coworker was not
required to conduct; he also excused a Caucasian employer
from an assignment in Pediatrics because the coworker was
pregnant, and instead gave the assignment to Ms. Barron - who
was also pregnant at the time.[7]
On
Friday, December 9, Mr. Malbalay approached Ms. Barron and
told her that Mr. Bevercomb had asked him to talk to her. Mr.
Malbalay told Ms. Barron that she was in a “unique
position” because she was “more likely to have
relatives come to [the] hospital because she was
Native-Alaskan.”[8] He then “suggested that because [Ms.
Barron] was Native-Alaskan she needed to find other
employment with one of the other hospitals in
Anchorage.”[9] Mr. Malbalay told Ms. Barron that she must
decide over the weekend to either quit or meet with Mr.
Bevercomb, “presumably to be
fired.”[10] On Monday, December 12, Ms. Barron spoke
with Mr. Bevercomb, who denied telling Mr. Malbalay to speak
with her.[11] Mr. Bevercomb acknowledged that Mr.
Malbalay should not be asking questions about her race, but
stated that it was “within Mr. Malbalay's authority
to ask her questions” and that Mr. Malbalay was
“just uninformed about Alaskan Native
culture.”[12]Mr. Bevercomb told Ms. Barron that she
should continue to work with Mr. Malbalay in spite of the
incident, and Ms. Barron initially agreed to do
so.[13] Later that day, however, Ms. Barron
alleges there was a “noticeable change in [Mr.]
Malbalay's demeanor towards” Ms. Barron, from which
she inferred that Mr. Bevercomb had spoken with Ms. Malbalay
about the incident.[14] Because of Mr. Malbalay's
“cold” and “unfriendly” behavior
toward her, Ms. Barron requested that Mr. Malbalay no longer
orient her.[15]
Ms.
Barron spent the remainder of her orientation working with
other co-workers, who “stated that she was doing an
excellent job.”[16] During the orientation, however, Mr.
Malbalay “made comments stating that [Ms. Barron] was
not working hard.”[17] In January 2017, Ms. Barron
discovered that her child had died in utero; she was forced
to deliver her stillborn child by C-section.[18] Mr. Bevercomb
“did not provide support in [Ms. Barron's] request
for leave” following this incident.[19] Ms. Barron
was ultimately allowed to take some leave time after she
appealed to Mr. Bevercomb's supervisors.[20]
On
February 13, 2017, Mr. Malbalay “showed his animosity
toward Alaska Natives and their culture” by
“mak[ing] a rude, disgusted, facial expression after a
co-worker thanked [Ms. Barron] for a jar of fish that she had
given her.”[21] Ms. Barron contacted ANTHC's Human
Resources concerning this incident, but no action was
taken.[22]
Sometime
after the February 13 incident, Mr. Malbalay received a
promotion.[23]Shortly thereafter, Mr. Malbalay wrote an
email to hospital administrators “attacking [Ms.
Barron] professionally.”[24] Ms. Barron was required to
respond to Mr. Malbalay's allegations.[25] On May 4,
2017, Ms. Barron “was required to report to the HR
department, and answer questions about her work
skills.”[26] She began to experience medical problems
caused by work-related stress.[27]
“Based
on the harassment that she was experiencing at work, ”
Ms. Barron filed with the Anchorage Equal Rights
Commission.[28] However, ANTHC did not respond to the
commission.[29] Ms. Barron also contacted ANTHC's
Human Resources, but her concerns were not
resolved.[30] Because ANTHC “would not provide a
resolution to [Ms. Barron's] complaints of racial
discrimination, she felt she had no option [but] to quit the
hostile working environment that had become unbearably
stress-filled.”[31] Ms. Barron's employment ended on
August 20, 2017.[32]
On
February 26, 2018, Ms. Barron filed a Complaint in the
Superior Court for the State of Alaska, Third Judicial
District at Anchorage.[33] On May 21, 2018, ANTHC removed the
case to this Court pursuant to 28 U.S.C. §
1441.[34] Ms. Barron brings a claim against ANTHC
for disparate treatment and retaliation on the basis of race
in violation of the Civil Rights Act of 1866, 42 U.S.C.
§ 1981.[35]
On June
19, 2018, ANTHC filed the instant Motion to
Dismiss.[36]
LEGAL
STANDARD
I.
Jurisdiction and Applicable Law
The
Court has jurisdiction pursuant to 28 U.S.C. § 1331
because this is a civil action with a claim alleged under
federal law, 42 U.S.C. § 1981. ANTHC is also a federal
contractor and as such the Court has jurisdiction pursuant to
28 U.S.C. § 1442(a).
II.
Standard for Dismissal
A
defendant may seek dismissal of an action for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). When such a motion is made, the plaintiff has the
burden of proving jurisdiction.[37] If the defendant raises a
factual challenge to a court's jurisdiction, as opposed
to a facial challenge based solely on the allegations in the
complaint, a court may consider matters outside the pleadings
in ruling on the motion.[38]Here, ANTHC submitted additional
materials with its motion to dismiss.[39] “[N]o
presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.”[40]
The
issue of tribal sovereign immunity is “quasi
jurisdictional” in the sense that it “may be
asserted at any time.”[41] “Although sovereign
immunity is only quasi-jurisdictional in nature, Rule
12(b)(1) is still a proper vehicle for invoking sovereign
immunity from suit.”[42] “In the context of a
Rule 12(b)(1) motion to dismiss on the basis of tribal
sovereign immunity, ‘the party asserting subject matter
jurisdiction has the burden of proving its existence,'
i.e. that immunity does not bar the
suit.”[43] A court may “‘hear evidence
regarding jurisdiction' and ‘resolv[e] factual
disputes where necessary'” when determining such a
motion.[44]
DISCUSSION
ANTHC
advances three arguments in support of its motion to dismiss.
First, it contends that 42 U.S.C. § 1981 does not apply
to ANTHC. Second, it contends that tribal sovereign immunity
protects ANTHC from suit. Third, it contends that Ms.
Barron's claims amount to tort claims, which may only be
brought pursuant to the Federal Tort Claims Act
(“FTCA”).[45] Given the Court's finding that
tribal sovereign immunity applies, the Court does not address
the remaining arguments.
1.
Tribal sovereign immunity protects ANTHC from suit.
“Indian
tribes have long been recognized as possessing the common-law
immunity from suit traditionally enjoyed by sovereign
powers.”[46] This tribal immunity extends to tribal
governing bodies and to tribal agencies or entities which act
as an “arm of the tribe.”[47] Tribal
sovereign immunity may extend to an organization created by
more than one tribe.[48]
ANTHC
is a statewide Alaska Native tribal health
consortium.[49] It was established pursuant to Section
325 of Public Law 105-83 with the purpose of “entering
into self-determination and self-governance agreements with
the Indian Health Service [(“IHS”)] to operate
and manage health services” for the benefit of Alaska
Native tribes.[50] It is also a Co-Signer of the Alaska
Tribal Health Compact (“ATHC”), which authorizes
tribes and tribal health organizations to operate health and
health-related programs.[51] ANTHC has funding agreements with the
IHS, and provides “a wide range of medical health,
community health and other services” for Alaska Natives
that were formerly provided by the IHS's Alaska
Office.[52] ANTHC is controlled by a 15-member Board
of Directors comprised of Alaska Native
representatives.[53] Twelve directors are selected by the
twelve regional Alaska Native tribal health consortia, which
are “comprised of, and controlled by, the
federally-recognized Alaska Native tribes from their
respective regions.”[54] One director is appointed by
the Metlakatla Indian Community, a federally recognized
Alaska Native tribe.[55] The final two directors are elected by
Alaska Native tribes that are not affiliated with a regional
health consortium.[56]
The
Ninth Circuit has considered whether a particular entity
constitutes an “arm of a tribe” that is entitled
to tribal sovereign immunity on several occasions. In
Allen v. Gold Country Casino, the Ninth Circuit
considered whether a casino that was owned and operated by
the federally recognized Tyme Maidu Tribe was entitled to
tribal sovereign immunity.[57] The Circuit Court noted that
the Casino's creation “was dependent upon [tribal
and state] government approval” as required pursuant to
the Indian Gaming Regulatory Act
(“IGRA”).[58] It further noted that one of the
purposes of IGRA is to ensure “that the Indian tribe is
the primary beneficiary of the gaming operation, ” and
that the interstate gaming compact that created the casino
provided that it would “enable the Tribe to develop
self-sufficiency, promote tribal economic development, and
generate jobs and revenues to support the Tribe's
government and governmental services and
programs.”[59]In light of “the purposes for which
the Tribe founded this Casino and the Tribe's ownership
and control of its operations, ” the Circuit Court
concluded that the casino “functions as an arm of the
Tribe . . . [and] accordingly enjoys the Tribe's immunity
from suit.”[60]
In
conducting its analysis of sovereign immunity, the
Allen court relied in part on Marceau v.
Blackfeet Housing Authority.[61] In Marceau, the
Ninth Circuit considered whether the Blackfeet Housing
Authority (“BHA”) was entitled to sovereign
immunity. The BHA was established by the Blackfeet Tribe as
required by Housing and Urban Development (“HUD”)
regulations.[62] The BHA's enabling ordinance charged
it with “[a]lleviating the acute shortage of decent,
safe and sanitary dwellings for persons of low income”
and “[r]emedying unsafe and [u]nsanitary housing
conditions that are injurious to the public health, safety
and morals.”[63] HUD granted the BHA authorization and
funding that was used to build homes.[64] Noting that
tribal sovereign immunity “extends to agencies and
subdivisions of the tribe, ” the Circuit Court
concluded that “the Blackfeet Tribe's sovereign
immunity extends to the Blackfeet Housing
Authority.”[65]
More
recently, in White v. University of California, the
Ninth Circuit identified five factors that courts should
consider when determining whether an entity is entitled to
tribal sovereign immunity: “(1) the method of creation
of the economic entities; (2) their purpose; (3) their
structure, ownership, and management, including the amount of
control the tribe has over the entities; (4) the tribe's
intent with respect to the sharing of its sovereign immunity;
and (5) the financial relationship between the tribe and the
entities.”[66]In White, the Circuit Court
considered whether the Kumeyaay Cultural Repatriation
Committee (“KCRC”) constituted an
“arm” of the member tribes of the Kumeyaay
Nation.[67] The KCRC was formed pursuant to
resolutions by the twelve Kumeyaay Nation members tribes to
address “concerns over the repatriation efforts, or
lack thereof, under [the Native American Graves and
Repatriation Act (“NAGPRA”)] in San
Diego.”[68]Applying the five factors described
above, the Circuit Court concluded that the KCRC was an
“arm of the tribe” that was entitled to sovereign
immunity:
[T]he Repatriation Committee was created by resolution of
each of the Tribes, with its power derived directly from the
Tribes' sovereign authority. The Repatriation Committee
is comprised solely of tribal members, who act on its behalf.
KCRC tribal representatives are appointed by each tribe. The
process by which the Repatriation Committee designates the
particular tribe to receive remains under NAGPRA is defined
and accepted by the Tribes. The Repatriation Committee is
funded exclusively by the Tribes. As the district court
noted, the whole purpose of the Repatriation Committee, to
recover remains and educate the public, is “core to the
notion of sovereignty.” Indeed, “preservation of
tribal cultural autonomy [and] preservation of tribal
self-determination, ” are some of the central policies
underlying the doctrine of tribal sovereign immunity. Given
these undisputed facts, the district court properly concluded
that the Repatriation Committee was an “arm of the
tribe” for sovereign immunity purposes . . .
.[69]
These
cases suggest that ANTHC is an arm of Alaska's tribes
that is entitled to sovereign immunity. Like the casino
examined in Allen, ANTHC's creation was
authorized pursuant to a federal law intended to promote
tribal self-sufficiency.[70] And like the BHA, ANTHC receives
federal funding to conduct activities that benefit tribe
members. The factors identified in White also
indicate that ANTHC is entitled to sovereign immunity. ANTHC
was formed by Alaska Native tribes. By “entering into
self-determination and self-governance agreements” with
the IHS, ANTHC provides and manages health services that
benefit members of Alaska Native tribes. The structure of
ANTHC's board places control over the ANTHC's
ownership and management in representatives of the Alaska
Native tribes. Like the KCRC, ANTHC's purpose - entering
into “self-determination and self-governance
agreements” - is “core to the notion of
sovereignty.” Finally, ANTHC receives federal funding
to carry out governmental functions critical to Alaska Native
tribes.
In her
opposition, Ms. Barron contends that the Fourth Circuit has
rejected the contention “that Alaska Native
Corporations have sovereign immunity such as to avoid §
1981 claims.”[71] The case she cites for this proposition
is distinguishable, however. In Aleman v. Chugach Support
Services, Inc., the Fourth Circuit concluded that
Chugach Support Services, Inc. (“Chugach”) was
not entitled to sovereign immunity.[72] Unlike ANTHC, the entity
examined in Aleman was a for-profit Alaska Native
Corporation created pursuant to the Alaska Native Claims
Settlement Act (“ANCSA”).[73] While Alaska
Native Corporations are owned and managed by Alaska Natives,
they are distinct legal entities from Alaska Native
tribes.[74] As the Aleman court recognized,
the question whether sovereign immunity shields a tribe from
liability is distinct from the question whether
“ownership of . . . corporations by Alaska Natives and
their devisees, or any other attribute, entitles [those
corporations] to immunity from suits.”[75] Unlike an
Alaska Native Corporation, ANTHC is an entity created and
controlled by Alaska Native tribes that promotes tribal
self-determination and fulfills governmental functions.
Accordingly, it constitutes an arm of the Alaska Native
tribes that is entitled to sovereign immunity.
2.
ANTHC's tribal sovereign immunity is a bar to § 1981
liability.
Suits
against Indian tribes and entities that constitute an
“arm of a tribe” are barred by sovereign
immunity, “absent a clear waiver . . . or congressional
abrogation.”[76] “There is a strong presumption
against waiver of tribal sovereign
immunity.”[77] Waiver of sovereign immunity may not be
implied and must be expressed unequivocally.[78]Similarly,
congressional abrogation of sovereign immunity may not be
implied and must be “unequivocally expressed” in
“explicit legislation.”[79]
Here,
Ms. Barron's suit alleges disparate treatment and
retaliation on the basis of race in violation of 42 U.S.C.
§ 1981. There is no indication that ANTHC has waived its
immunity for such a claim. Accordingly, the Court must
determine whether Congress has abrogated tribal sovereign
immunity as to § 1981 claims. While the Ninth Circuit
has not addressed this question, other circuits have
concluded that tribal sovereign immunity is a bar to §
1981 liability. In Yashenko v. Harrah's NC Casino
Co., LLC, the Fourth Circuit concluded without
elaboration that the Eastern band of Cherokee Indians enjoyed
sovereign immunity from a § 1981 suit.[80] In
Aleman, the Fourth Circuit reaffirmed that it had
“recognized Indian tribal immunity as a bar to Section
1981 liability.”[81] Similarly, in Taylor v. Alabama
Intertribal Council Title IV J.T.P.A., the Eleventh
Circuit concluded that “nothing in § 1981 supports
the proposition that Congress intended to abrogate
tribes' immunity and permit private parties to bring
employment discrimination claims against them for intramural
tribal employment decisions.”[82]
Ninth
Circuit cases addressing statutory abrogation of tribal
sovereign immunity provide additional guidance. In
White, the Circuit Court held that NAGPRA did not
abrogate tribal sovereign immunity, even though its
enforcement clause grants district courts “jurisdiction
over any action brought by any person alleging a violation of
[NAGPRA].”[83] The Circuit Court noted that the clause
“does not contain any language expressly abrogating
tribal sovereign immunity.”[84] In reaching this
conclusion, the White court relied in part on
Santa Clara Pueblo v. Martinez, in which the Supreme
Court indicated that a statutory provision conferring on
federal courts “jurisdiction of any civil action
authorized by law to be commenced by any person” did
not abrogate tribal sovereign immunity with respect to a suit
to secure enforcement of Title I the Indian Civil Rights
Act.[85] Similarly, in Miller v. Wright,
the Ninth Circuit concluded that tribal immunity was not
abrogated by federal antitrust laws that referred to states,
foreign nations, and “corporations and associations
existing under or authorized by the laws of either the United
States, the laws of any of the Territories, the laws of any
State, or the laws of any foreign
country.”[86] In contrast, in Krystal v. Navajo
Nation, the Ninth Circuit held that the Bankruptcy Code
abrogated tribal sovereign immunity with respect to an
adversary action under the Code.[87] The Circuit Court noted
that 11 U.S.C. § 106(a) expressly abrogated the
sovereignty of all “governmental units, ” and
that a separate provision defining “governmental
units” established that all “foreign or domestic
governments” are considered governmental units for the
purpose of the Bankruptcy Code.[88]
These
cases suggest that Congress has not abrogated tribes'
sovereign immunity from § 1981 liability. Unlike the
Bankruptcy Code, § 1981 does not include language
clearly expressing an intent to abrogate the sovereign
immunity of all governmental units, including Indian tribes.
Rather, the statute's articulation of rights applicable
to “[a]ll persons within the jurisdiction of the United
States” is similar to the statutory language examined
in White and Martinez.[89] Therefore,
Congress has not “unequivocally expressed” an
intent to abrogate tribal sovereign immunity in
“explicit legislation.” Because ANTHC is entitled
to sovereign immunity, and because immunity from § 1981
claims has not been waived by the tribe or abrogated by
Congress, ANTHC is immune from suit.
CONCLUSION
In
light of the foregoing, IT IS ORDERED that ANTHC's Motion
to Dismiss at Docket 9 is GRANTED. The Clerk of Court is
directed to enter a final judgment. DATED this 2nd day of
January, 2019 at Anchorage, Alaska.
---------
Notes:
[1] Docket 11 -1 at 2; D o c k e t 11 -2
at 7, 16-17. Titles I and V of the Indian Self-Determination
and Education Assistance Act were originally codified at 25
U.S.C. ยงยง 450f-450n and 25 ...