Above the law

Did you know that Title VII does not apply to Indian reservations? I was unaware of this. But it's true. It's also true that some casinos therefore fall outside the scope of Title VII.

The case Tremblay v. Mohegan Sun Casino, a summary order decided on April 7. Here is the reasoning, short and sweet:

Title VII expressly excludes American Indian tribes from its definition of covered employers. 42 U.S.C. § 2000e(b). The exclusion extends to the arms and agencies of an American Indian tribe. Because the defendant here is a corporation owned by an agency of a federally recognized American Indian tribe, it is not an employer under Title VII.

The Age Discrimination in Employment Act does not exclude Indian reservations from its coverage. But the casinos are exempt from ADEA coverage as well "as a matter of federal common law." The Court of Appeals (Pooler, Carney and Gleeson [D.J.]) says that "an Indian tribe enjoys sovereign immunity from suit except where ‘Congress has authorized the suit or the tribe has waived its immunity.” In addition, "Agencies of a tribe enjoy the same presumption of immunity in a suit for damages."

Tremblay handled the appeal pro se, so either no lawyer wanted to touch it or some lawyer actually knew about these coverage exemptions. I wonder if she has any recourse under any other statutes, but she gets none under Title VII and the ADEA. If you want to see what a pro se appellate brief looks like, click here. According to the brief filed by Mohegan Sun, "As the District Court properly noted, the forum for raising this claim was in the Mohegan Gaming Disputes Court."