Nanomantube v. Kickapoo Tribe in Kansas
2011 U.S. App. LEXIS 1910
10th Cir.2011Background
- Nanomantube filed a Title VII employment discrimination suit against the Kickapoo Tribe in Kansas, its Tribal Council, and the Golden Eagle Casino.
- The district court dismissed for lack of jurisdiction based on tribal sovereign immunity.
- The court reviews sovereign-immunity decisions de novo.
- Indian tribes are sovereign entities; immunity from suit exists unless abrogated by Congress or waived by the tribe, and such waiver must be unequivocal.
- Congress did not abrogate tribal immunity for Title VII; it explicitly excludes tribes from the definition of employers under Title VII.
- Nanomantube argues the casino handbook’s statement to comply with Title VII constitutes an unequivocal waiver, relying on C. & L. Enterprises and Native American Distributing; the court disagrees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the tribe waived sovereign immunity for Title VII claims | Nanomantube: handbook compliance with Title VII creates waiver. | Kickapoo: no unequivocal waiver; compliance promise insufficient. | No unequivocal waiver; immunity remains. |
| Whether Congress abrogated tribal immunity for Title VII | Nanomantube contends abrogation is not required because of broader authority. | Tribe: Congress did not abrogate immunity for Title VII and exempted tribes as employers. | Congress did not abrogate; immunity persists. |
Key Cases Cited
- C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001) (clear waiver based on contract choice-of-law/arbitration provisions)
- Native American Distrib. v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288 (10th Cir. 2008) (sue or be sued clause can show waiver; context-dependent)
- Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282 (11th Cir. 2001) (promises not to discriminate do not equal unequivocal waiver)
- Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457 (10th Cir. 1989) (promises to ensure rights may constrain but not waive immunity)
- Demontiney v. United States ex rel. Dep't of Interior, Bureau of Indian Affairs, 255 F.3d 801 (9th Cir. 2001) (incorporation of federal rights into tribal governance does not show waiver)
- Hagen v. Sisston-Wahpeton Cmty. College, 205 F.3d 1040 (8th Cir. 2000) (certificate of assurance does not automatically show waiver)
- NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002) (tribal sovereignty and immunity principles as set forth by the en banc court)
- Montana v. United States, 450 U.S. 544 (1981) (tribal authority over nonmembers is constrained by immunity analysis)