United States District Court, D. Minnesota
Harper, pro se.
M. Plumer, PLUMER LAW OFFICE, for defendants.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
R. TUNHEIM, CHIEF JUDGE UNITED STATES DISTRICT COURT
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
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.)
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).
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 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.
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.
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 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.
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
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 ...