Opinion
Civil No. 00-1376-AS
February 26, 2001
FINDINGS AND RECOMMENDATION
Presently before this court is the motion of defendant Spirit Mountain Gaming, Inc., dba Spirit Mountain Casino ("Spirit Mountain") to dismiss the complaint filed by Steven Sharber ("Plaintiff") for lack of jurisdiction. Defendant contends that this action is barred by tribal sovereign immunity and that this court lacks subject matter jurisdiction.
BACKGROUND
In 1995, the Confederated Tribes of the Grande Ronde Community of Oregon (the "Tribe"), opened the Spirit Mountain Casino (the "Casino"), a gambling casino located on trust land within the State of Oregon. The Tribe incorporated defendant Spirit Mountain under the laws of the Tribe to own and manage the Casino.
In April 1997, Spirit Mountain hired Plaintiff to work full-time in the Casino as a floor supervisor. Plaintiff suffered from a serious health condition that required him to occasionally take medical leave. In May 2000, Plaintiff's physician determined that Plaintiff needed some time off work. Plaintiff's physician certified Plaintiff's serious health condition and represented that Plaintiff was unable to return to work at that time. Plaintiff provided this information to Spirit Mountain and requested that he be allowed time off under the Family Medical Leave Act ( 29 U.S.C. § 2601 et seq.) (the "Act"). Plaintiff was terminated on May 20, 2000.
Plaintiff filed this action for violation of the Act on October 6, 2000. Plaintiff has not presented his claim to any tribal court.
LEGAL STANDARD
Pursuant to Fed.R.Civ.P. 12(b), a complaint may be dismissed if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In making this determination, this Court accepts all allegations of material fact as true and construes the allegations in the light most favorable to the nonmoving party. Id.
In determining a 12(b)(1) motion, the court is not limited to the allegations of the complaint. Roberts v. Corrothers, 812 F.2d 1173 (9th Cir. 1987). Thus, extrinsic evidence may be considered, and, if the evidence is disputed, may be weighed by the court. Id. In addition, where the motion is based on extrinsic evidence, no presumptive truthfulness attaches to plaintiff's allegations or any inferences drawn therefrom. Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso v. Utah Power and Light Co., 495 F.2d 906, 909 (10th Cir. 1994).
It should be noted that where a jurisdictional motion raises factual issues that also go to the merits of the claim the court must employ the standards applicable to summary judgment. Augustine v. United States, 704 F.2d 1074 (9th Cir. 1983). No such issues are raised here and, thus, the summary judgment standards are not applicable.
DISCUSSION
Federal and state courts have long recognized that Indian tribes possess immunity from suit similar to that traditionally enjoyed by sovereign powers. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). The courts have extended that immunity to tribal officers acting in their representative capacity and within the scope of their authority. United States v. Oregon, 657 F.2d 1009, 1012 n. 8 (9th Cir. 1981).
This immunity is not without limitation. It exists only at the sufferance of Congress and is subject to complete defeasance by Congressional act. United States v. Wheeler, 435 U.S. 313 (1978). In addition, the tribe itself may waive its immunity. Id. Both Congressional and tribal waiver of sovereign immunity must be unequivocally expressed and cannot be implied. Santa Clara, 436 U.S. at 58.
Plaintiff contends that Congress waived Spirit Mountain's immunity in this action by not specifically exempting Indians, Indian tribes or reservations from coverage under the Act and that Spirit Mountain waived its own sovereign immunity when it adopted the Act for the protection of its employees. Plaintiff then argues that because the Act applies to Defendant's employees, this action is properly before this court.
The application of the Act to Indian tribes, in general, and to Spirit Mountain employees specifically, is not the issue presently before the court. The sole issue to be decided at this juncture is whether this court has jurisdiction under 28 U.S.C. § 1331 to consider Plaintiff's claim in the first instance.
While the United States Supreme Court recognized that federal courts retain jurisdiction under 28 U.S.C. § 1331 to determine whether a tribal court has jurisdiction over claims filed against an Indian tribe in National Farmers Union Insurance Companies v. Crow Tribe of Indians, 471 U.S. 845 (1985), the court also held in the same case that the exhaustion of this issue in tribal court is required before the federal court will entertain the question.
The existence and extent of a tribal court's jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions.
We believe that examination should be conducted in the first instance in the Tribal Court itself. Our cases have often recognized that Congress is committed to a policy of supporting tribal self-government and self-determination. That policy favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge. Moreover the orderly administration of justice in the federal court will be served by allowing a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed. The risks of the kind of "procedural nightmare" that has allegedly developed in this case will be minimized if the federal court stays its hand until after the Tribal Court has had a full opportunity to determine its own jurisdiction and rectify any error it may have made. Exhaustion of tribal court remedies, moreover, will encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction, and will also provide other courts with the benefit of their expertise in such matters in the event of further judicial review.
Id. at 855-57 (footnotes omitted). "Until petitioners have exhausted the remedies available to them in the Tribal Court system, it would be premature for a federal court to consider any relief." Id.
The court finds that it must defer, in the interest of comity, the question of whether Spirit Mountain validly waived tribal court jurisdiction over claims brought under the Act to the tribal court for determination. Plaintiff clearly can pursue any claim arising from his employment with Spirit Mountain, including those alleging violation of the Act, in the tribal court pursuant to the provisions of Spirit Mountains's Employment Action Review Ordinance. Accordingly, Spirit Mountain's motion to dismiss for lack of jurisdiction should be GRANTED.
CONCLUSION
Spirit Mountain's motion (# 8) to dismiss should be GRANTED.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due March 13, 2001. If no objections are filed, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than March 27, 2001. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.