Harper v. White Earth Human Resource et al

Filing 28

MEMORANDUM OPINION AND ORDER granting 8 Motion to Dismiss for Lack of Jurisdiction; Adopt Report and Recommendation 26 Report and Recommendation.(Written Opinion) Signed by Chief Judge John R. Tunheim on February 22, 2017. (DML) cc: Harper. Modified on 2/22/2017 (MMP).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 16-1797 (JRT/LIB)

LEIGH HARPER,
Plaintiff,
v.
WHITE EARTH HUMAN RESOURCE,
WHITE EARTH BOYS AND GIRLS
CLUB, and WHITE EARTH
EDUCATION DEPARTMENT,

MEMORANDUM OPINION
AND ORDER ADOPTING REPORT
AND RECOMMENDATION OF THE
MAGISTRATE JUDGE

Defendants.

Leigh Harper, P.O. Box 81, Ponsford, MN 56575, pro se.
Joseph M. Plumer, PLUMER LAW OFFICE, 9352 North Grace Lake
Road Southeast, Bemidji, MN 56601, for defendants.
Plaintiff Leigh Harper brings this action pro se against Defendants White Earth
Human Resource, White Earth Boys and Girls Club, and White Earth Education
Department (collectively “Defendants”). Harper alleges that she worked at the White
Earth Boys and Girls Club and that she was fired “to prevent her grievances and
complaints from being acted on.” (Compl. at 1, May 25, 2016, Docket No. 4.) Harper
alleges various statutory and constitutional claims, including violations of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Rehabilitation Act, the Americans
with Disabilities Act, Minn. Stat. § 181.961, the Fifth and Fourteenth Amendment to the
U.S. Constitution, the Indian Civil Rights Act, and the Revised Constitution of the
Minnesota Chippewa Tribe. (Id.)

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On June 17, 2016, Defendants filed a motion to dismiss for lack of subject matter
jurisdiction. On October 7, 2016, United States Magistrate Judge Leo I. Brisbois issued a
Report and Recommendation (“R&R”) recommending that Harper’s complaint be
dismissed with prejudice because the Court lacks subject matter jurisdiction due to the
sovereign immunity of the White Earth Tribe. (See R&R at 17, Oct. 7, 2016, Docket
No. 26.) Harper objected to the R&R on October 21, 2016. (Objs., Oct. 21, 2016,
Docket No. 27.)

ANALYSIS
After a magistrate judge files an R&R, a party may file “specific written
objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2);
accord D. Minn. LR 72.2(b)(1). “The objections should specify the portions of the
magistrate judge’s report and recommendation to which objections are made and provide
a basis for those objections.” Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774, at *2
(D. Minn. Sept. 28, 2008). On a dispositive motion the Court reviews “properly objected
to” portions of an R&R de novo.

Fed. R. Civ. P. 72(b)(3); accord D. Minn.

LR 72.2(b)(3).
Harper objected to the Magistrate Judge’s determination that Defendants are
protected by sovereign immunity. Courts have long recognized that tribal governments
possess “the common-law immunity from suit traditionally enjoyed by sovereign
powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); see also Hagen v.
Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000) (“It is undisputed
that an Indian tribe enjoys sovereign immunity.”). Sovereign immunity is not limited to
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just the tribal council but also covers tribal agencies. Weeks Constr., Inc. v. Oglala Sioux
Hous. Auth., 797 F.2d 668, 670-71 (8th Cir. 1986); see also Hagen, 205 F.3d at 1043;
Dillon v. Yankton Sioux Tribe Hous. Auth., 144 F.3d 581, 583 (8th Cir. 1998). An agency
is entitled to sovereign immunity if it “served as an arm of the sovereign tribes, acting as
more than a mere business.” Hagen, 205 F.3d at 1043. Sovereign immunity covers the
actions of tribal governments and tribal agencies unless it has been unequivocally waived
or abrogated by Congress. Twin Cities Chippewa Tribal Council v. Minn. Chippewa
Tribe, 370 F.2d 529, 532 (8th Cir. 1967); see also Weeks Constr., Inc., 797 F.2d at 671.
As discussed in the R&R, and not challenged by Harper now, Harper admitted at
the motions hearing that all Defendants are entities or agencies of the White Earth Tribal
Government, that all of her claims were based on her termination of employment and
resulting performance plan, and that she and her supervisors were employees of the
White Earth Tribe. (See R&R at 4-5; see also Compl. at 2 (conceding the same).) The
supporting documents that Harper submitted also indicate that White Earth Tribe was her
employer. (Pl.’s Exs., Attach. 1 at 6, July 14, 2016, Docket No. 15.) Despite these
concessions, Harper argues that because the alleged actions were not carried out by
members of the White Earth government acting within the scope of their authority, the
actions are not protected by sovereign immunity. Harper also argues that sovereign
immunity should not apply because White Earth Tribal council has not come forward to
invoke sovereign immunity.
However, contrary to Harper’s assertion, tribes or tribal officials need not
explicitly invoke sovereign immunity; instead, courts assume that the tribe is immune
unless Congress has expressly abrogated that protection or the tribe has expressly waived
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its immunity. Santa Clara Pueblo, 436 U.S. at 58-59; Twin Cities Chippewa Tribal
Council, 370 F.2d at 532. Thus, the tribal entities sued here are entitled to sovereign
immunity, and Harper’s lawsuit is barred absent abrogation or waiver.
Harper does not object to the Magistrate Judge’s conclusions regarding waiver and
abrogation. The Magistrate Judge provided a thorough and well-reasoned discussion of
those issues, (see R&R at 7-17), which the Court will not repeat here in the absence of a
specific objection. There is no indication that Congress has abrogated or that the tribe
has waived sovereign immunity with regard to Harper’s claims. Accordingly, the Court
will overrule Harper’s objections, adopt the Magistrate Judge’s R&R, and dismiss
Harper’s claims for lack of subject matter jurisdiction.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES Harper’s objections [Docket No. 27] and ADOPTS the Report and
Recommendation of the Magistrate Judge dated October 7, 2016 [Docket No. 26].
Accordingly, IT IS HEREBY ORDERED that:
1.

Defendants’ Motion to Dismiss [Docket No. 8] is GRANTED. Harper’s

claims are DISMISSED with prejudice.
2.

Harper’s claims are DISMISSED with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: February 22, 2017
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
Chief Judge
United States District Court

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