Allen v. Gold Country Casino ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK S. ALLEN, 
Plaintiff-Appellant,
No. 05-15332
v.
GOLD COUNTRY CASINO; THE BERRY  D.C. No.
CV-04-00322-LKK
CREEK RANCHERIA OF TYME MAIDU
OPINION
INDIANS; MATTIE MAYHEW,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior Judge, Presiding
Argued and Submitted
August 14, 2006—San Francisco, California
Filed September 29, 2006
Before: William C. Canby, Jr., David R. Thompson, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Canby
17115
17118 ALLEN v. GOLD COUNTRY CASINO
COUNSEL
Donald Earl Childress III, Jones Day, Washington, D.C., for
the plaintiff-appellant.
Blaine I. Green, Pillsbury, Winthrop, Shaw, Pittman, LLP,
San Francisco, California, for the defendants-appellees.
ALLEN v. GOLD COUNTRY CASINO 17119
OPINION
CANBY, Circuit Judge:
Mark Allen is a former employee of the Gold Country
Casino, which is owned and operated by the Tyme Maidu
Tribe of the Berry Creek Rancheria in California. After the
Casino fired Allen, he sued it and the Tribe. The district court
dismissed the claims against the Tribe and the Casino on the
ground of sovereign immunity. Allen concedes the Tribe’s
immunity, but argues that the district court erred in extending
that immunity to the Casino without scrutinizing the relation-
ship between the Tribe and the Casino. We find no error in
the district court’s dismissal of Allen’s claims against the
Casino because the record and the law establish sufficiently
that it functions as an arm of the Tribe.
Allen also asserted various claims against Mattie Mayhew,
a tribal member, and John Doe defendants. We reverse in part
the district court’s dismissal of these claims and remand for
consideration of Allen’s claims under 28 U.S.C. §§ 1981 and
1985, along with any state law claims over which the district
court may exercise supplemental jurisdiction.
I. Facts
Allen was employed by Gold Country Casino as a surveil-
lance supervisor. Gold Country Casino is a tribal entity
formed by a compact between the federally recognized Tyme
Maidu Tribe and the State of California. The Casino is wholly
owned and operated by the Tribe. Allen contends he was dis-
charged in retaliation for reporting rats in the Casino’s restau-
rant and for applying to “the white man’s court” for
guardianship of three tribal children.
Allen obtained a right to sue letter from the Equal Employ-
ment Opportunity Commission and, proceeding pro se, filed
this action in federal district court. Allen named as defendants
17120 ALLEN v. GOLD COUNTRY CASINO
the Casino, the Tribe, Mattie Mayhew, and John Does 1 thru
300, against whom he asserted various employment, civil
rights, and conspiracy claims. The magistrate judge recom-
mended that the claims against the Tribe be dismissed on the
ground of sovereign immunity. The magistrate judge assumed
without analysis that the Tribe’s immunity extended to the
Casino. The magistrate judge found that the only remaining
claim was for false accusations against Mayhew. He recom-
mended dismissal for lack of subject matter jurisdiction
because this was a non-federal claim. The district court
adopted these recommendations and dismissed all claims.
On appeal, Allen, who is now represented by counsel, con-
cedes that the Tribe is immune from suit. But he contends that
this immunity does not extend automatically to the Gold
Country Casino. He urges that the district court be required to
apply a three-part test to determine whether the Casino is
“analogous to a governmental agency or operating in a gov-
ernmental capacity as an arm of the tribe.” Allen argues in the
alternative that, if the Casino is immune, it waived its immu-
nity by referring to federal law in its employment materials.
We review de novo the district court’s dismissal under Fed-
eral Rule of Civil Procedure 12(b). See, e.g., Decker v. Advan-
tage Fund, Ltd., 362 F.3d 593, 595-96 (9th Cir. 2004). We
also review de novo questions of sovereign immunity and
subject matter jurisdiction. Orff v. United States, 358 F.3d
1137, 1142 (9th Cir. 2004).
II. Discussion
A. Sovereign Immunity of the Casino
[1] Although the Supreme Court has expressed limited
enthusiasm for tribal sovereign immunity, the doctrine is
firmly ensconced in our law until Congress chooses to modify
it. See Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 757-60
(1998). This immunity extends to business activities of the
ALLEN v. GOLD COUNTRY CASINO 17121
tribe, not merely to governmental activities. See id. at 760;
Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d
1091, 1100 (9th Cir. 2002). When the tribe establishes an
entity to conduct certain activities, the entity is immune if it
functions as an arm of the tribe. See, e.g., Marceau v. Black-
feet Hous. Auth., 455 F.3d 974, 978 (9th Cir. 2006) (holding
that Blackfeet Tribe’s sovereign immunity extends to Black-
feet Housing Authority); Redding Rancheria v. Super. Ct., 88
Cal. App. 4th 384, 388-89 (2001) (holding that off-reservation
casino owned and operated by tribe was arm of the tribe, and
therefore was entitled to sovereign immunity); Trudgeon v.
Fantasy Springs Casino, 71 Cal. App. 4th 632, 642 (1999)
(recognizing sovereign immunity of for-profit corporation
formed by a tribe to operate the tribe’s casino). The question
is not whether the activity may be characterized as a business,
which is irrelevant under Kiowa, but whether the entity acts
as an arm of the tribe so that its activities are properly deemed
to be those of the tribe.
[2] Allen’s contention that the district court erred in failing
to scrutinize the nature of the relationship between the Tribe
and the Casino fails to accord sufficient weight to the undis-
puted fact that the Casino is owned and operated by the Tribe.
Allen recognized the reality of the Casino as an arm of the
Tribe when he sued the Tribe “d.b.a.” (“doing business as”)
the Casino. And this is no ordinary business. The Casino’s
creation was dependent upon government approval at numer-
ous levels, in order for it to conduct gaming activities permit-
ted only under the auspices of the Tribe. The Indian Gaming
Regulatory Act (“IGRA”), 25 U.S.C. § 2710(d)(1), required
the Tribe to authorize the Casino through a tribal ordinance
and an interstate gaming compact. The Tribe and California
entered into such a compact “on a government-to-government
basis.”
[3] These extraordinary steps were necessary because the
Casino is not a mere revenue-producing tribal business
(although it is certainly that). The IGRA provides for the cre-
17122 ALLEN v. GOLD COUNTRY CASINO
ation and operation of Indian casinos to promote “tribal eco-
nomic development, self-sufficiency, and strong tribal
governments.” 25 U.S.C. § 2702(1). One of the principal pur-
poses of the IGRA is “to insure that the Indian tribe is the pri-
mary beneficiary of the gaming operation.” Id., § 2702(2).
The compact that created the Gold Country Casino provides
that the Casino will “enable the Tribe to develop self-
sufficiency, promote tribal economic development, and gener-
ate jobs and revenues to support the Tribe’s government and
governmental services and programs.”
[4] With the Tribe owning and operating the Casino, there
is no question that these economic and other advantages inure
to the benefit of the Tribe. Immunity of the Casino directly
protects the sovereign Tribe’s treasury, which is one of the
historic purposes of sovereign immunity in general. Cf. Alden
v. Maine, 527 U.S. 706, 750 (1999) (noting that sovereign
immunity protects the financial integrity of States, many of
which “could have been forced into insolvency but for their
immunity from private suits for money damages”). In light of
the purposes for which the Tribe founded this Casino and the
Tribe’s ownership and control of its operations, there can be
little doubt that the Casino functions as an arm of the Tribe.
It accordingly enjoys the Tribe’s immunity from suit. See
Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous.
Auth., 207 F.3d 21, 29 (1st Cir. 2000) (stating that tribal hous-
ing authority “as an arm of the Tribe, enjoys the full extent
of the Tribe’s sovereign immunity”); Marceau, 455 F.3d at
978 (recognizing that tribal sovereign immunity “extends to
agencies and subdivisions of the tribe”).
B. Waiver of Immunity
[5] The Casino did not waive immunity when it provided
in Allen’s employment application that he could be termi-
nated “for any reason consistent with applicable state or fed-
eral law,” or when it stated in the Employee Orientation
Booklet that it would “practice equal opportunity employment
ALLEN v. GOLD COUNTRY CASINO 17123
and promotion regardless of race, religion, color, creed,
national origin . . . and other categories protected by applica-
ble federal laws.” These statements are not a “clear” waiver
of immunity. See C & L Enters., Inc. v. Citizen Band Potawa-
tomi Indian Tribe, 532 U.S. 411, 418 (2001). At most they
might imply a willingness to submit to federal lawsuits, but
waivers of tribal sovereign immunity may not be implied. See
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)
(explaining that a waiver of immunity “must be unequivocally
expressed”).
[6] This case is distinguishable from C & L Enterprises and
Marceau. In C & L Enterprises, the Supreme Court held that
the tribe waived its immunity by expressly agreeing to arbitra-
tion of disputes and to “enforcement of arbitral awards ‘in any
court having jurisdiction thereof.’ ” 532 U.S. at 414. In Mar-
ceau, the tribe established a housing authority by ordinance
that gave the tribe’s “irrevocable consent to allowing the
Authority to sue and be sued in its corporate name,” and fur-
ther provided that any judgment against the Authority would
not be a lien on the Authority’s property but would be paid
out of “its rents, fees or revenues.” 455 F.3d at 981. The state-
ments in Allen’s employment documents did not approach
these explicit waivers of immunity from suit; the statements’
references to federal law did not mention court enforcement,
suing or being sued, or any other phrase clearly contemplating
suits against the Casino. These documents did not amount to
an unequivocal waiver of the Casino’s sovereign immunity.
[7] Allen further argues that we should analogize the pur-
ported waiver of tribal immunity to waivers of immunity
under the Foreign Sovereign Immunities Act (“FSIA”), 28
U.S.C. § 1605. That Act specifies exceptions to the immunity
of foreign states, see § 1605(a), which the Tribe is not. As we
pointed out in Richardson v. Mt. Adams Furniture (In re
Greene), 980 F.2d 590 (9th Cir. 1992), the fact that Congress
limited the immunity of foreign sovereigns simply under-
scores the breadth of sovereign immunity in the absence of
17124 ALLEN v. GOLD COUNTRY CASINO
congressional action; because Congress has not limited the
immunity of Indian tribes, it retains its full force. See id. at
594; see also Kiowa, 523 U.S. 751, 759-60. There is simply
no room to apply the FSIA by analogy, as Allen would have
us do. The FSIA precludes immunity of a foreign state when
that state engages in commercial activities in the United
States. 28 U.S.C. § 1605(a)(2). To apply that provision to the
Tribe would contravene the Supreme Court’s decision in
Kiowa, holding that tribal immunity extended to commercial
activities of the tribe. Kiowa, 523 U.S. at 760. FSIA also per-
mits a waiver of immunity to be implied, see 28 U.S.C.
§ 1605(a)(1), while the Supreme Court permits no such
implied waiver in the case of Indian tribes. See, e.g., Santa
Clara Pueblo, 436 U.S. at 58. We accordingly decline Allen’s
invitation to apply FSIA by analogy to tribal sovereign immu-
nity.
C. Allen’s Remaining Claims
[8] Although the issue is not free from doubt, we conclude
that the district court erred in its dismissal of the remainder
of the complaint on the ground that it presented no federal
claims against Mayhew and the unnamed defendants. Allen’s
pro se pleadings are unquestionably difficult to decipher, but
they must be liberally construed. See Ortez v. Washington
County, 88 F.3d 804, 807 (9th Cir. 1996). In his response to
the defendants’ motion to dismiss, Allen explained that he
was asserting against all defendants a claim under 42 U.S.C.
§ 1985. He also accused all defendants except Mayhew of
violating 42 U.S.C. § 1981. Giving Allen the benefit of doubt,
we conclude that he should be given the opportunity to amend
his complaint to assert these two claims intelligibly. We
express no opinion, of course, on the procedural or substan-
tive merits of the claims beyond permitting Allen to assert
them.
[9] If Allen proceeds in district court with these federal
claims, the district court may have supplemental jurisdiction
ALLEN v. GOLD COUNTRY CASINO 17125
over Allen’s state-law claims under 28 U.S.C. § 1367. We
therefore vacate the dismissal of Allen’s state-law claims for
lack of supplemental jurisdiction, so that the district court
may consider anew its jurisdiction over those claims.
[10] We affirm the dismissal of Allen’s claims under 18
U.S.C. §§ 241 and 242 because these are criminal statutes that
do not give rise to civil liability. See Aldabe v. Aldabe, 616
F.2d 1089, 1092 (9th Cir. 1980). Similarly, we affirm the dis-
missal of his claim under 28 U.S.C. § 1343 because this juris-
dictional statute does not provide a cause of action. See Ellis
v. Cassidy, 625 F.2d 227, 229 (9th Cir. 1980). The district
court also properly dismissed Allen’s claim under 42 U.S.C.
§ 1983 because there is no allegation that any defendant was
acting under the color of state law. See West v. Atkins, 487
U.S. 42, 45-46 (1988).
III. Conclusion
We affirm the district court’s judgment dismissing Allen’s
claims against the Tribe and Casino on the ground of sover-
eign immunity. We also affirm the dismissal of claims against
the individual defendants under 18 U.S.C. §§ 241 and 242, as
well as claims under 28 U.S.C. §§ 1343 and 1983. We vacate
and remand the judgment of dismissal without prejudice in
favor of Mayhew and the Doe defendants because Allen
asserted federal claims against those defendants under 42
U.S.C. § 1985. Allen also asserted claims against the Doe
defendants under 42 U.S.C. § 1981. Finally, we vacate the
dismissal of state-law claims for lack of supplemental juris-
diction, and remand for any appropriate exercise of supple-
mental jurisdiction over those claims.
The parties will bear their own costs on appeal.
AFFIRMED IN PART; VACATED AND REMANDED
IN PART.