IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHRISTINE J. WILLIAMS,

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 14-594-CG-M

 :

POARCH BAND OF CREEK INDIANS,

 :

Defendant. :

REPORT AND RECOMMENDATION 

This action is before the Court on Plaintiff’s 

Complaint (Doc. 5), Defendant’s Motion to Dismiss and 

supporting brief (Doc. 10), Plaintiff’s Response to said 

Motion, (Doc. 14), Defendant’s Reply Brief and Supplemental 

Authority (Docs. 15, 20), and Plaintiff’s Supplemental 

Authority. (Doc. 21). Upon consideration and for the 

reasons set forth herein, it is recommended that 

Defendant’s Motion to Dismiss be granted, and Plaintiff’s 

Complaint be dismissed for lack of subject matter 

jurisdiction. 

I. Facts and Proceedings

Plaintiff Christine Williams is a former employee of the 

Poarch Band of Creek Indians (“PBCI”). Her Complaint, 

(Doc. 5),1 asserts claims of “violations of civil rights 

 1 When Plaintiff filed her initial Complaint (Doc. 1), 

she did not sign her pleading; the Court ordered her to 

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(age discrimination) and year of service disparate 

treatment.” (Doc. 5 at 3). Prior to filing suit, 

Plaintiff was the lab manager/chief medical technologist 

within the PBCI Health Department. (Docs. 1, 11-1 at 1, 

2). The PBCI Health Department is a Tribal Department 

located on PBCI Reservation Lands, and positions within the

Health Department are Tribal government jobs. (Doc. 11-1 

at 2). All employees of the Health Department, including 

Plaintiff during her employment, are considered PBCI 

employees. (Id.). 

Plaintiff is over the age of fifty-five and has been 

employed with the Health Department for over 21 years. 

(Doc. 1 at 3). Plaintiff’s employment was terminated on 

June 17, 2014, which she alleges was on the basis of age 

discrimination. (Doc. 5). Plaintiff contends that Health 

Administrator Ginger Bergeron and Tribal Administrator Edie 

Jackson conspired to replace Plaintiff with a twenty-eight 

year old female medical laboratory scientist, whom 

Plaintiff contends is under-qualified for the lab manager 

position. (Id. at 3). Plaintiff also contends that during 

the termination process, that Ginger Bergeron, Edie Jackson 

and Susan Spurill stated to her, “if I did not resign that 

 

sign and refile, which she did on January 6, 2015. (Doc. 

4).

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the plaintiff would not be able to find a job as a lab 

manager due to plaintiff’s age.” (Id.). This statement is 

the basis for Plaintiff’s allegation that Bergeron, Jackson 

and Spurill conspired against her due to her age.2 

In response to Plaintiff’s Complaint, Defendant filed 

its Motion to Dismiss and supporting brief raising the 

issue of subject matter jurisdiction due to the fact that 

PBCI is a federally recognized Indian tribe with a 

governmental structure independent from the United States 

government and which operates under the PBCI Tribal 

Constitution and the Tribal Code of PBCI, both of which 

explicitly preserve PBCI’s right to tribal sovereign 

immunity. (Docs. 10, 11 at 2). Consequently, Defendant 

contends that absent congressional authorization or waiver, 

PBCI is entitled to tribal sovereign immunity. Defendant 

relies on multiple cases which cite to the conclusion that 

Indian tribes are domestic dependent nations that exercise 

inherent sovereign authority, and, absent congressional 

authorization or waiver, the doctrine of tribal immunity is 

 

2 The Court notes that there are more facts in the record 

regarding the post-termination events; however, those facts 

speak to the merits of Plaintiff’s case, which are not at 

issue in the pending Motion to Dismiss. (Doc. 10). 

Defendant has raised subject matter jurisdiction as its 

basis for dismissal, so the Court will not engage in any 

merit-based fact analysis until the Motion to Dismiss is 

fully resolved.

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well settled, and suits against a tribe are due to be 

dismissed due to lack of subject matter jurisdiction. 

(Doc. 11 at 5). 

Defendant further contends that because the Age 

Discrimination Employment Act (“ADEA”) does not abrogate 

the doctrine of tribal sovereign immunity, PBCI maintains 

its immunity rendering this Court powerless to hear 

Plaintiff’s Complaint. (Id. at 7). Additionally, 

Defendant contends that not only is congressional 

authorization or waiver lacking, but the ADEA is silent 

with respect to allegations addressing congressional 

authorization of private lawsuits under the ADEA, which 

silence must be construed in PBCI’s favor. (Id.). 

Defendant cites to multiple courts, including courts in 

this Circuit, which have dismissed similar claims due to 

such tribal sovereign immunity. (Id. at 8). Defendant 

contends that the proper forum for Plaintiff’s allegations, 

if anywhere, is before the Tribal Employment Rights Office. 

(Id. at 14). The Tribal Employment Rights Code provides 

PBCI employees with an administrative procedure and remedy 

to challenge employment practices, and the right to an 

appeal. (Id. at 14, 15). 

Plaintiff filed a “Brief For Motion to Proceed,” which 

the Court treats as a Response to Defendant’s Motion. 

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(Doc. 14). Plaintiff begins her rebuttal by characterizing 

Defendant’s jurisdiction issues as a request for 

abstention, and states that such request should be denied 

because “federal courts have a virtually unflagging 

obligation to exercise the jurisdiction given them. . . 

[and] it is not for the courts to withdraw that 

jurisdiction which Congress expressly granted under section 

1983 where such a withdrawal is contrary to the purpose of 

Congress in extending [an] alternative forum.” (Id. at 6-

7). The Court notes that Defendant did not raise an 

abstention issue, but rather lack of jurisdiction, and 

thus, abstention will not be addressed herein. 

Next, Plaintiff’s response states that because the 

“United States Supreme Court [has] determined that a state 

court has no jurisdiction over a claim against an Indian 

tribe when the claim arises on Indian land,” and because 

this is a federal case, that Plaintiff has the right to sue 

in federal court. (Doc. 14 at 7). Plaintiff further 

contends that because the lab was inspected every two years 

by a federal government compliance program under the 

Clinical Laboratory Improvement Amendments of 1988 

(“CLIA”), and because the “inspections were performed by 

the federal government[, then] the federal government has 

jurisdiction over the [PBCI] lab. . . If the federal 

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government had jurisdiction during these inspections, they 

also should have jurisdiction over this age discrimination 

case.” (Id. at 7-8). 

Lastly, Plaintiff contends that “silence is golden” 

and where a conflict of law exists, a case-by-case analysis 

is required. (Id. at 8). Plaintiff provides no case law 

for this contention, but nonetheless concludes that because 

“Congress did not lean to the right or left on tribal 

sovereign immunity[, so] the federal courts have the right 

to final jurisdiction.” (Id.). Plaintiff also makes the 

unsupported conclusion that this Court has jurisdiction 

because the “ADEA does authorize private lawsuits against 

federally recognized Indian tribes due to silence.” (Id.). 

Defendant responds pointing out that any abstention 

arguments by Plaintiff are without merit; the Court agrees. 

(Doc. 15 at 2). Defendant addresses the “silence is 

golden” argument by stating that silence operates as

evidence that Congressional abrogation or waiver of PBCI’s 

tribal sovereign immunity does not exist, and therefore,

PBCI is immune from an ADEA suit, and this Court lacks 

subject matter jurisdiction over such. (Id.). Defendant 

notes that Plaintiff has provided no evidence of express 

and unequivocal abrogation of tribal sovereign immunity in 

relation to her ADEA claim. Defendant also notes that 

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Plaintiff admits Congress is silent on the abrogation 

issue, and relies on cases from this Circuit and others 

which rule that silence does not equal abrogation. (Id. at 

3-4). 

Finally, Defendant proposes that Plaintiff’s claim is 

proper, if anywhere, before the Tribal Employment Rights 

Office (“TERO”). (Id. at 6). That proposition is based on 

the Tribal Employee Rights Code stating that “any Tribal 

Employee . . . who believes that an Employer . . . has 

violated rights protected by this Title may file a written 

complaint with [TERO].” (Id.). Defendant relies on the 

assertions of affiant Edie Jackson attesting to the fact 

that Plaintiff is a tribal employee and the PBCI Health 

Department is a Tribal Government Department, which 

Plaintiff does not dispute. (Id. at 6-7). 

Subsequent to filing its Reply, Defendant PBCI 

requested leave to file supplemental authority, which was 

rendered by the Second Circuit shortly after the close of 

briefing and which is strikingly analogous to the set of 

facts at hand. (Doc. 18). The Court granted Defendant’s 

request and Defendant filed its supplement. (Doc. 20). 

The Second Circuit affirmed the district court’s dismissal 

pursuant to Rule 12(b)(1) of the Federal Rules of Civil 

Procedure of a pro se plaintiff’s discriminatory charge 

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brought under Title VII of the Civil Rights Act and the Age 

Discrimination in Employment Act against the Mohegan Sun 

Casino, a gaming center owned and operated by the Mohegan 

Indian Tribe. (Doc 18 at 2). In affirming the lower 

court’s decision, the Second Circuit held tribunal 

sovereign immunity barred the plaintiff’s ADEA claim. 

Tremblay v. Mohegan Sun Casino, 599 Fed. Appx. 25 (2d Cir. 

2010). 

Plaintiff then filed her own Motion to Submit 

Supplemental Authority, which was also granted. (Doc. 21, 

docket entry 22). Plaintiff relies on a case out of the 

Eastern District of Wisconsin wherein the Equal Employment 

Opportunity Commission filed an action to enforce a 

subpoena it served pursuant to the ADEA on the Forest 

County Potawatomi Community (“the tribe”) in its capacity 

as proprietor of Potawatomi Bingo Casino. EEOC v. Forest 

County Potawatomi Cmty, 2014 WL 1795137 (E.D. Wis. May 6, 

2014). The Court in Potawatomi found that the ADEA did 

apply to the Tribe because the facts therein did not touch 

on the Tribe’s right to self-governance in purely 

intramural matters; however, that Court also noted that at 

least three other circuits found that the ADEA did not 

apply to tribes due to unabridged sovereign tribal 

immunity. Potawatomi, 2014 WL 1795137, at *3. This Court 

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points out that the set of facts in Potawatomi are not 

analogous to Plaintiff’s set of facts. 

Plaintiff relies on another case, White v. Poarch Band 

of Creek Indians, No. SC-12-01 (Appeal from Poarch Band 

Indians Tribal Court Civil Action No. CV-09-73), which 

speaks to the merits of Plaintiff’s allegations, and not 

the jurisdictional issues raised by Defendant in its Motion 

to Dismiss. Because the merits of Plaintiff’s claim are 

not at issue, the Court will not consider said case. After 

careful consideration, the Court concludes that Plaintiff’s 

Complaint is due to be dismissed for lack of subject matter 

jurisdiction for the following reasons. 

II. Discussion

a. Motion to Dismiss Standard

Defendant PBCI moves to dismiss Plaintiff’s Complaint 

under Rule 12(b)(1) and 12(b)(6) for lack of subject matter 

jurisdiction and for failure to state a claim upon which 

relief can be granted. The Court will address the law on 

each ground for dismissal in turn.

“Subject matter jurisdiction, because it involves a 

court’s power to hear a case, can never be forfeited or 

waived.” United States v. Cotton, 535 U.S. 625, 630 

(2002). “Moreover, courts, including this Court, have an 

independent obligation to determine whether subject matter 

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jurisdiction exists, in the absence of a challenge from any 

party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 

(2006)(citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 

583 (1999)). Thus, when a court determines it lacks 

subject matter jurisdiction, the court “must dismiss the 

complaint in its entirety.” Arbaugh at 514. 

A challenge to subject matter jurisdiction under Rule

12(b)(1) may come in two forms, “facial” or “factual.” 

Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 

1990). A facial attack challenges subject matter 

jurisdiction based on the allegations contained in the 

complaint. Id. at 1529. A factual attack, however, 

challenges subject matter jurisdiction in fact, 

irrespective of the pleadings, and a court may consider 

extrinsic evidence. Id. 

Under Rule 12(b)(6), a defendant may move to dismiss a 

complaint pursuant to Federal Rule of Civil Procedure 

12(b)(6) if the plaintiff has failed to state a claim upon 

which relief may be granted. To survive a 12(b)(6) motion 

to dismiss for failure to state a claim, the complaint 

“does not need detailed factual allegations;” however, the 

“plaintiff's obligation to provide the ‘grounds' of his 

‘entitle[ment] to relief’ requires more than labels and 

conclusions, and a formulaic recitation of the elements of 

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a cause of action will not do.” Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555 (2007) (internal citations 

omitted). Factual allegations, on the assumption that all 

allegations in the complaint are true, must be enough to 

raise a right to relief above the speculative level and 

state a claim for relief that is plausible on its face. 

Id. at 555, 570. 

The Court accepts all facts as true and limits its 

consideration to the pleadings and exhibits attached 

thereto. Abraham v. Greater Birmingham Humane Soc’y, 

Inc., No. 2:11-CV-4358-SLB, 2014 WL 1043230, *1 (N.D.Ala. 

Mar. 17, 2014)(citing Grossman v. Nationsbank, N.A., 225 

F.3d 1228, 1231 (11th Cir. 2000)(citation omitted). 

Without converting it to a motion for summary judgment, the 

Court may consider facts outside the pleadings in resolving 

a motion to dismiss where the parties were given sufficient 

opportunity to develop the record and the authenticity of 

the documents considered is undisputed. Rogers v. 

Shinseki, No. CV 112-194, 2014 WL 1093147, at *4 (S.D.Ga. 

Mar. 18, 2014)(citing Tillery v. U.S. Dep’t of Homeland 

Sec., 402 F. App’x 421, 424 (11th Cir. 2010)(citation 

omitted); see also Judkins v. Saint Joseph’s Coll. of Me., 

483 F.Supp.2d 60, 62 (D.Me. Apr. 20, 2007)(determining the 

EEOC charge and other EEOC documents could be considered on 

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a motion to dismiss). All reasonable inferences are drawn 

in favor of the plaintiff; however, unsupported conclusions 

of law or of mixed fact and law have long been recognized 

not to prevent a Rule 12(b)(6) dismissal. Abraham, 2014 WL 

1043230 at *1 (citing Dalrymple v. Reno, 334 F.3d 991, 996 

(11th Cir. 2003)(citation omitted). 

b. Sovereign Immunity

It is undisputed, and the Court takes judicial notice 

that PBCI is a federally recognized Indian tribe, which, by 

virtue of its status, enjoys tribal sovereign immunity. See 

e.g., Bodi v. Shingle Springs Band of Miwok Indians, 19 F. 

Supp. 3d 978, 982 (E.D.Cal. 2014)(“As the Federal Register 

is a source ‘whose accuracy cannot reasonably be 

questioned,’ the court will take judicial notice that the 

Tribe is recognized as a tribal entity by the United States 

government.”); Solutia, Inc. v. McWane, Inc., 2012 WL

2031350, at *9 n. 9 (N.D.Ala. June 1, 2012)(“the court is 

authorized to take judicial notice of the contents of the 

Federal Register”)(citing 44 U.S.C. § 1507)(citation 

omitted)). See also Defendant’s Briefs Docs. 10, 11, 11-1, 

and 15; Allman v. Creek Casino Wetumpka, 2011 WL 2313706, 

at *1 (M.D.Ala. May 23, 2011)(citing 25 U.S.C. § 479a-1; 75 

75 Fed. Reg. 60810 (Oct. 1, 2010); 74 Fed. Reg. 40218-02 

(Aug. 11, 2009). Due to this immunity status, the United 

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States Supreme Court reaffirmed that “Indian tribes are 

domestic dependent nations that exercise inherent sovereign 

authority,” and time and again, the doctrine of tribal 

immunity has been treated as settled law as the basis of 

dismissal of any suit against a tribe absent congressional 

authorization or waiver. Michigan v. Bay Mills Indian 

Cmty., 134 S.Ct. 2024 (2014). Therefore, the Court 

concludes that the doctrine of sovereign immunity is 

applicable herein, and will turn its analysis to whether 

PBCI has waived its immunity status and whether Congress 

has expressly abrogated such immunity as may be applied 

under the ADEA. 

1. Waiver of Immunity

A waiver of sovereign immunity “cannot be implied on 

the basis of a tribe’s actions, but must be unequivocally 

expressed.” Sanderlin v. Seminole Tribe of Fla., 243 F.3d 

1282, 1286 (11th Cir. 2001). “Although the Supreme Court 

has expressed some skepticism regarding the current 

expansive[ness ] of tribal sovereign immunity, it has 

declined to rewrite its existing case law and has instead 

deferred to Congress to alter or narrow the bounds of that 

immunity.” See Kiowa Tribe of Okla. V. Mfg. Techs., Inc., 

523 U.S. 751, 758, (1998) (noting that “in our 

interdependent and mobile society, ... tribal immunity 

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extends beyond what is needed to safeguard tribal selfgovernance,” but declining to revisit the broad grant of 

immunity afforded by prior decisions). Plaintiff has not 

provided any evidence at all showing that PBCI expressly 

and unmistakably waived its right to sovereign immunity 

from suit. 

On the contrary, Defendant has provided ample evidence 

that PBCI invokes and preserves its right to tribal 

sovereign immunity without waiver. See Doc. 11 at 10 

(citing PBCI Tribal Code § 1-1-1 stating in pertinent part, 

“This sovereign immunity of the [PBCI] is not waived by any 

section, part, word, or phrase contained in this Tribal 

Code or amendments thereto”). Furthermore, Defendant cites 

to the Tribal Employment Rights Code, which states in 

pertinent part, “Nothing contained in this Title shall be 

construed as a waiver by the [PBCI] of sovereign immunity 

from uncontested lawsuits or as consent by the [PBCI] to 

the bringing of any action against the [PBCI], its 

officers, agents, employees, departments or business 

entities or enterprises.” Id. at 11 (citing PBCI Tribal 

Code § 33-8-9). Therefore, without any evidence indicating 

otherwise, the Court concludes that PBCI has not waived its 

tribal sovereign immunity, and is immune from the 

allegations stated in Plaintiff’s Complaint. 

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2. Congressional Abrogation

Turning now to the issue of abrogation, Plaintiff 

asserts that, according to Williams v. Lee, 358 U.S. 217 

(1958), only state courts lack jurisdiction over claims 

arising on Indian land, (Doc. 14 at 7); and that because 

the lab she worked in was inspected by the “federal 

government” then the federal government has jurisdiction 

over her ADEA claim. Plaintiff hangs her hat on the phrase 

that “silence is golden” because Congressional silence 

means that “Congress did not lean to right or left on 

tribal sovereign immunity,” and thus, the “ADEA does 

authorize private suits against federally recognized Indian 

tribes due to silence,” giving the federal courts “the 

right to final jurisdiction.” (Doc. 14 at 8). 

Defendant contends PBCI is immune from Plaintiff’s 

suit because Congress failed to abrogate tribal sovereign 

immunity in the text of the ADEA, and the statute is also 

silent with respect to any allegations addressing 

Congressional authorization of private lawsuits under the 

ADEA. (Doc. 11 at 7). The Court agrees with Defendant that 

Congress has not abrogated the doctrine and the ADEA’s 

silence regarding such does not equal authorization. 

In order for Congress to abrogate tribal sovereign 

immunity, it must “unequivocally express that purpose.” 

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Bay Mills, 134 S.Ct. 2024, 2031; Fla. Paraplegic Ass’n, 

Inc. v. Miccosukee Tribe of Indians of Fla., 166 F.3d 1126, 

1131 (11th Cir. 1999)(concluding that Congress abrogates

tribal immunity only where the definitive language of the 

statute itself states an intent to either abolish Indian 

tribes’ common law immunity or to subject tribes to suit 

under the act”). 

As the Supreme Court stated in Kiowa, 523 U.S. 751, 

759, “Congress has occasionally authorized limited classes 

of suits against Indian tribes and has always been at 

liberty to dispense with such tribal immunity or to limit 

it.” In reviewing the relevant portions of the ADEA, the 

Court could not discern any implied, let alone 

unequivocally expressed, abrogation of tribal sovereign 

immunity. See 29 U.S.C. §§ 621-634. Furthermore, because 

the ADEA does not expressly address Indian tribes in its 

text, the Court looked to the legislative history of the 

statute, which also contains no reference regarding its 

applicability to Indian tribes. E.E.O.C. v. Fond du Lac 

Heavy Equip. and Const. Co., Inc., 986 F.2d 246, 250 (8th 

Cir. 1993). Accordingly, neither the statute nor the 

statute’s legislative history indicates a clear and plain 

congressional intent to apply the ADEA to Indian tribes. 

Therefore, this Court lacks subject matter jurisdiction 

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over Plaintiff’s Complaint due to Defendant’s tribal 

sovereign immunity. 

In addition to the lack of congressional abrogation, 

numerous courts across the nation have also dismissed ADEA 

claims due to tribal sovereign immunity. See Garcia v. 

Akwasasne Hous. Auth., 268 F.3d 76, 86 (2d Cir. 

2001)(affirming dismissal of plaintiff’s ADEA claim against 

agency of Indian tribe); Fon du Lac Heavy Equip. & Constr. 

Co., 986 F.2d at 250 (holding that tribe member did not 

have a viable ADEA claim against tribe employer because the 

ADEA did not show Congress’ “clear and unmistakable intent” 

to abrogate the tribe’s sovereign immunity from suit); 

E.E.O.C. v. Cherokee Nation, 871 F.2d 937, 939 (10th Cir. 

1989)(“where ambiguity exists (such as that posed by the 

ADEA’s silence with respect to Indians), and there is no 

clear indication of congressional intent to abrogate Indian 

sovereign rights (as manifested, e.g., by the legislative 

history, or the existence of a comprehensive statutory 

plan),” such ambiguity is resolved in favor of Indian 

interests). 

Moreover, the Eleventh Circuit has previously upheld 

tribal sovereign immunity in cases involving employment 

related statuses. See Taylor v. Ala. Intertribal Council, 

261 F.3d 1032, 1036 (11th Cir. 2001)(citing to and relying 

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on other cases wherein tribal sovereign immunity was 

applied as a bar to private suit for discrimination 

allegations under the ADEA). Based on the forgoing, it is 

clear that this Court does not have subject matter 

jurisdiction over Plaintiff’s claim due to the well-settled 

doctrine of tribal sovereign immunity. 

III. Conclusion

After careful consideration of the pleadings and record, 

and for the reasons set out above, the Court concludes that 

Defendant’s Motion to Dismiss for lack of subject matter 

jurisdiction is due to be granted and Plaintiff’s Complaint 

dismissed.

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be 

served on all parties in the manner provided by law. Any 

party who objects to this recommendation or anything in it 

must, within fourteen (14) days of the date of service of 

this document, file specific written objections with the 

Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 

72(b); S.D. ALA. L.R. 72.4. The parties should note that 

under Eleventh Circuit Rule 3-1, “[a] party failing to 

object to a magistrate judge's findings or recommendations

contained in a report and recommendation in accordance with 

the provisions of 28 U.S.C. § 636(b)(1) waives the right to 

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challenge on appeal the district court's order based on 

unobjected-to factual and legal conclusions if the party 

was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the 

absence of a proper objection, however, the court may 

review on appeal for plain error if necessary in the 

interests of justice.” 11th Cir. R. 3-1. In order to be 

specific, an objection must identify the specific finding 

or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the 

Magistrate Judge’s report and recommendation where the 

disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before 

the Magistrate Judge is not specific. 

DONE this 10th day of June, 2015.

s/ BERT W. MILLING, JR 

UNITED STATES MAGISTRATE JUDGE

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