Case 1:14-cv AWI-SMS Document 13-1 Filed 10/27/14 Page 1 of 25

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1 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 LESTER J. MARSTON California State Bar No. 000 RAPPORT AND MARSTON 0 West Perkins Street Ukiah, California Telephone: 0-- Facsimile: marston@pacbell.net Attorney for Specially Appearing Defendants Chicken Ranch Casino, Chicken Ranch Rancheria of Me-Wuk Indians of California, Lloyd Mathiesen, and James Smith FRANCES A. BORICCHIO, DARCY FOSTER, CYNTHIA L. NAPOLI, CORENA L. RAYMOND, and ROBERT H. WATTS, v. Plaintiffs, CHICKEN RANCH CASINO, CHICKEN RANCH RANCHERIA OF ME-WUK INDIANS OF CALIFORNIA, a federally recognized Indian tribe, LLOYD MATHIESEN, and JAMES SMITH, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Defendants. FRESNO DIVISION Case No. :-cv-00-awi-sms [Consol.] DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS [Fed. R. Civ. Proc. (b)(), (b)()] Date: December, Time: :0 p.m. Ctrm:, th Floor Judge: Hon. Anthony W. Ishii

2 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 TABLE OF CONTENTS INTRODUCTION. I. DEFENDANTS ENJOY THE PROTECTION OF SOVEREIGN IMMUNITY FROM THIS SUIT... A. The Tribe Enjoys Sovereign Immunity From Unconsented Suit.... B. The Tribe s Sovereign Immunity From Suit Extends to the Casino.... C. Defendants Mathiesen And Smith Are Similarly Cloaked In The Tribe s Sovereign Immunity From Suit.... D. The Tribe Has Not Waived Its Tribal Sovereign Immunity From Suit And Congress Has Not Abrogated Its Immunity.... II. THE ADEA DOES NOT APPLY TO INDIAN TRIBES AND, THEREFORE, THE PLAINTIFFS CAUSES OF ACTION FAIL TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED.... A. The Plain Language Of The ADEA Does Not Apply The Statute To Indian Tribes.... B. The Federal Cases Interpreting The ADEA Support The Tribe s Position.... III. THE INDIAN GAMING REGULATORY ACT, U.S.C. 0, ET SEQ., PREEMPTS THE APPLICATION OF THE ADEA IN THIS CASE.... IV. THE PLAINTIFFS FAILED TO EXHAUST THEIR TRIBAL ADMINISTRATIVE REMEDIES, WHICH IS A JURISDICTIONAL PREREQUISITE TO SUIT IN THIS COURT.... A. The Plaintiffs Have Failed to Exhaust the Remedies Provided By The Tribe s Employment Rights Ordinance.... B. The Plaintiffs Have Failed To Exhaust the Remedies Provided By The Tribe s Claims Ordinance And The Statute Of Limitations Has Run On The Plaintiffs Claims.... C. The Plaintiffs Have Failed To Exhaust Their Tribal Court Remedies.... CONCLUSION...

3 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 TABLE OF AUTHORITES Federal Cases Al-Haramain Islamic Found., Inc. v. Obama, 0 F.d (th Cir. Cal. )..., Allen v. Gold Country Casino, F.d 0 (th Cir. 0)..., Artichoke Joe s California Grand Casino v. Norton, F.d (th Cir. 0)... Ashcroft v. Iqbal, U.S. (0... Balistreri v. Pacifica Police Dep t, 0 F.d (th Cir. )... Bell Atlantic Corp. v. Twombly, 0 U.S. (0)... Burlington Northern R. Co. v. Crow Tribal Council, 0 F.d (th Cir.)..., Cook v. AVI Casino Enterprises, Inc., F.d (th Cir. 0)... C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, U.S. (0)..., 0 Chemehuevi Indian Tribe v. California State Bd. of Equalization, F.d 0 (th Cir. )..., County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 0 U.S. ()... Davis v. Littel, F.d (th Cir. )... Demontiney v. U.S. ex rel. Dept. of Interior, Bureau of Indian Affairs, F.d 0 (th Cir. 0)... Donovan v. Coeur d Alene Tribal Farm, F.d (th Cir. )... EEOC v. Cherokee Nation, F.d (0th Cir. )... EEOC v. Karuk Tribe Hous. Auth., 0 F.d 0 (th Cir. )... passim Elliot v. White Mountain Apache Tribal Ct., F. d (th Cir. 0)... Gaming Corp. of America v. Dorsey & Whitney, F.d (th Cir. )..., Goodman v. United States, F.d 0 (th Cir. 0)... Hall v. Mooretown Rancheria, U.S. Dist. Lexis ()... Hardin v. White Mountain Apache, F.d, (th Cir. )... Imperial Granite Co. v. Pala Band of Mission Indians, 0 F.d (th Cir. )... Ingrassia v. Chicken Ranch Bingo and Casino, F. Supp. d (E.D. Cal. 0)... passim Iowa Mutual Ins. Co. v. LaPlante, 0 U.S. ()... Kiowa Tribe v. Mfg. Techs., Inc., U.S. ()... Krystal Energy Co. v. Nation, 0 U.S. App. LEXIS (th Cir. 0)... Larimer v. Konocti Vista Casino Resort, Marina & RV Park, F. Supp. d (N.D. Cal. ).....,, 0 Linneen v. Gila River Indian Cmty., F.d (th Cir. 0)... Marceau v. Blackfeet Hous. Auth., F.d (th Cir. 0)... McNeil v. United States, 0 U.S. 0 ()... Montana v. Blackfeet Tribe, U.S. ()..., National Farmers Union Ins. Cos. v. Crow Tribe, U.S. ()..., Okla. Tax Comm n v. Citizen Band of Potawatomi Tribe of Okla., U.S. 0 ()... 0, Rehner v. Rice, F.d 0 ()... Santa Clara Pueblo v. Martinez, U.S. ()..., Shroyer v. New Cingular Wireless Servs., Inc., F.d 0 (th Cir. 0)...

4 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 Snow v. Quinalt Indian Nation, 0 F.d (th Cir. )... Somportex Ltd. v. Philadelphia Chewing Gum Corp., F.d (rd Cir.)... Stock West Corp. v. Taylor, F.d (th Cir. )... Stock West, Inc. v. Confederated Tribes of the Colville Reservation, F.d (th Cir. )... U.S. v. Plainbull F.d (th Cir.)... United States Dep t of Labor v. Occupational Safety & Health Review Comm n, F.d (th Cir. )... United States v. Cooper, U.S. 00 ()... United States v. Mazurie, U.S. ()... Ute Distribution Corp. v. Ute Indian Tribe, F.d 0 (0th Cir. )... Williams v. Lee, U.S. ()... Wilson v. Marchington, F.d 0 (th Cir. )... Wisconsin Potowatomies v. Houston, F.Supp. (W.D. Mich )... State Cases Brown v. Babbitt Ford, Inc. Ariz., P.d (Ariz. Ct. App. )... Lopez v. Civil Service Commission, Cal. App. d 0 ()..... Mexican v. Circle Bear, 0 N.W.d (S.D. )... Redding Rancheria v. Superior Court, Cal.App.th (Cal. App. d Dist. 0)..., Federal Statutes U.S.C U.S.C U.S.C U.S.C U.S.C.... U.S.C Other Authorities Fed. Reg.... S.Rep. No., 00th Cong., d Sess. ()..., Witkin, CALIFORNIA PROCEDURE (d ed. )... Rules Fed. R. Civ. P....,

5 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 INTRODUCTION This case raises issues at the intersection of Indian, anti-discrimination, and administrative law. In the complaints filed by Frances A. Boricchio, Darcy Foster, Cynthia L. Napoli, Corena L. Raymond, and Robert H. Watts, the plaintiffs contend that the defendants, Chicken Ranch Rancheria of Me-Wuk Indians of California, its on-reservation economic enterprise, and its tribal official and tribal employee (collectively, the Tribe ), are bound by the requirements of the Age Discrimination in Employment Act, U.S.C., et seq. (the ADEA ), and as such, should be amenable to suit for its violation. Notably, the plaintiffs have plead neither the existence of any statement within any employment contract that could plausibly constitute a waiver of tribal sovereign immunity, nor any evidence of congressional intent to abrogate the Tribe s immunity so as to subject the Tribe to its legislation. The Tribe, therefore, seeks dismissal, pursuant to Fed. R. Civ. P. (b)() and (b)(), on the grounds that this Court lacks jurisdiction over the subject matter of this suit. Specifically, the Tribe demonstrates that jurisdiction is lacking over the plaintiffs causes of action because: () the Chicken Ranch Rancheria of Me-Wuk Indians of California, a federally recognized Indian tribe, did not waive its immunity from suit and is thus entitled to sovereign immunity from suit in the absence of congressional authorization of this action; () the Chicken Ranch Casino ( Casino ) is an arm of the Tribe and possesses the same immunity enjoyed by the Tribe; () sovereign immunity extends to Mr. Mathieson, as a tribal official, and Mr. Smith, as a tribal employee, who, at all times relevant to this action, acted in their official capacities and within the scope of their authority; () the ADEA does not apply to the Tribe s employment relationship with the plaintiffs because Congress has not evidenced its intent to bring Indian tribes under the ambit of the ADEA; () the Indian Gaming Regulatory Act, U.S.C. 0, et seq. ( IGRA ), preempts the application of the ADEA; and () the plaintiffs have not challenged their terminations in a manner consistent with tribal law and, as a result, they have failed to exhaust their tribal remedies, which are a jurisdictional prerequisite to suit in this Court. For purposes of this motion, due to the generally uniform nature of the complaints filed by Frances A. Boricchio, Darcy Foster, Cynthia L. Napoli, Corena L. Raymond, and Robert H. Watts, the Tribe cites only to the Boricchio complaint as representative of all complaints, where applicable, and in the case that there exists a variance between complaints, such differences will be so noted and cited accordingly.

6 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 For these reasons, the plaintiffs complaints must be dismissed. STATEMENT OF FACTS The relevant facts of this case are set forth in the declarations of Chad Miranda and Melisa Ralston filed in support of Defendants Motion to Dismiss for Lack of Subject Matter Jurisdiction. For the Court s convenience, the Tribe will not repeat those facts here, but rather will incorporate them by this reference as if set forth here in full. ARGUMENT I. DEFENDANTS ENJOY THE PROTECTION OF SOVEREIGN IMMUNITY FROM THIS SUIT. A. The Tribe Enjoys Sovereign Immunity From Unconsented Suit. Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Santa Clara Pueblo v. Martinez, U.S., (). The sovereign immunity of an Indian tribe is coextensive with that of the United States itself, Chemehuevi Indian Tribe v. California State Bd. of Equalization, F.d 0, 00 (th Cir. ), rev d on other grounds, U.S. (), and thus extends to governmental and commercial activities whether they occur on or off of a reservation. See Kiowa Tribe v. Mfg. Techs., Inc., U.S. (). Id. at -. To date, our cases have sustained tribal immunity from suit without drawing a distinction based on where the tribal activities occurred. Nor have we yet drawn a distinction between governmental and commercial activities of a tribe. Though respondent asks us to confine immunity from suit to transactions on reservations and to governmental activities, our precedents have not drawn these distinctions. Inclusion of an Indian tribe on the Federal Register list of federally recognized tribes is generally sufficient to establish a tribe s entitlement to sovereign immunity. Larimer v. Konocti Vista Casino Resort, Marina & RV Park, F.Supp. d, (N.D. Cal. ), citing Ingrassia v. Chicken Ranch Bingo and Casino ( Ingrassia ), F. Supp. d, (E.D. Cal. 0); Cherokee Nation v. Babbitt, F.d, (D.C. Cir. ).

7 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 The Tribe is included on the list of federally recognized tribes promulgated by the Bureau of Indian Affairs, Department of the Interior. Fed. Reg. (Jan., ). As such, it enjoys tribal sovereign immunity from unconsented suit and cannot be sued without its consent. Moreover, it must be recognized that sovereign immunity is not a discretionary doctrine that may be applied as a remedy depending on the equities of a given situation. Chemehuevi, F.d at 0, fn. (internal citations omitted); Rehner v. Rice, F.d 0,, rev d on other grounds, U.S. () [tribal sovereign immunity applies irrespective of the merits of the claim asserted against the tribe]. Rather, it presents a pure jurisdictional question. Chemehuevi at 0. Accordingly, where, as here, a federally recognized Indian tribe properly raises sovereign immunity, the court is deprived of jurisdiction to adjudicate the claims. B. The Tribe s Sovereign Immunity From Suit Extends to the Casino. The doctrine of tribal sovereign immunity applies to claims brought against entities established by a tribe that function as an arm of the tribe. Marceau v. Blackfeet Hous. Auth., F.d, (th Cir. 0). Where a casino is wholly owned and operated by a tribe, and its profits inure directly to the tribe, that casino is considered to be functioning as an arm of the tribe. See Allen v. Gold Country Casino, F.d 0, 0 (th Cir. 0). The United States Court of Appeals for the Ninth Circuit has unequivocally ruled that tribal casinos operated pursuant to the IGRA are protected by sovereign immunity: [T]his is no ordinary business. The Casino s creation was dependent upon government approval at numerous levels, in order for it to conduct gaming activities permitted only under the auspices of the Tribe. The Indian Gaming Regulatory Act ( IGRA ), U.S.C. 0(d)(), 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. **** 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, U.S. 0, 0 S. Ct. 0, L. Ed. d () (noting that sovereign immunity protects the financial integrity of States, many of which could have been forced 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.

8 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 Allen v. Gold Country Casino, F.d 0, 0- (th Cir. 0). Accord, Cook v. AVI Casino Enterprises, Inc., F.d, - (th Cir. 0). Here, the Tribe wholly owns and operates a gaming facility under the fictitious name, Chicken Ranch Casino. Declaration of Melisa Ralston in Support of Defendants Motion to Dismiss ( Ralston Declaration ), p., ; Declaration of Chad Miranda in Support of Defendants Motion to Dismiss ( Miranda Declaration ), p.,. The Tribe conducts gaming on its tribal trust lands pursuant to a Tribal-State Compact Between the State of California and the Chicken Ranch Rancheria and pursuant to the requirements of the IGRA. Ralston Declaration, p.,. Thus, because the Casino is wholly owned and operated by an Indian tribe entitled to sovereign immunity, the Casino is immune from suit. Ingrassia, F. Supp. d at. C. Defendants Mathiesen And Smith Are Similarly Cloaked In The Tribe s Sovereign Immunity From Suit. Tribal sovereign immunity extends to tribal officials when acting in their official capacity and within the scope of their authority. See Linneen v. Gila River Indian Cmty., F.d, (th Cir. 0); Snow v. Quinalt Indian Nation, 0 F.d, (th Cir. ); Imperial Granite Co. v. Pala Band of Mission Indians, 0 F.d, (th Cir. ); Hardin v. White Mountain Apache, F.d, -0 (th Cir. ); Davis v. Littel, F.d, (th Cir. ). Tribal officials are not limited to political officials, but include all employees of a tribe or tribal casino if they are acting within the scope of their employment. See Cook v. AVI Casino Enters. Inc., F.d, (th Cir. 0). The relevant inquiry for sovereign immunity purposes is not whether an individual or the tribe itself is named in the suit, but whether payment is in effect sought from the Tribe s treasury. Larimer v. Konocti Vista Casino Resort, Marina & RV Park, F. Supp. d, (N.D. Cal. ). The plaintiffs complaints seek relief against the former Chairman of the Tribe, Lloyd Mathiesen, and former acting General Manager, James Smith, for their roles in exercising authority and control over employment decisions of the [T]ribe. Borrichio Complaint, p.,,. Additionally, the complaints allege that specific discriminatory acts were taken by Mr. Mathiesen and Mr. Smith in the course and scope of their office and employment, respectively. Borrichio Complaint,

9 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 p., -. Thus, it is clear on the face of the complaints that any actions allegedly taken by Mr. Mathiesen and Mr. Smith against the plaintiffs were within the course and scope of their authority as a tribal official and tribal employee. Ralston Declaration, pp. -, -. Finally, because the plaintiffs claims against Mr. Mathiesen and Mr. Smith are indistinguishable from their claims against the Tribe, and because the plaintiffs requested relief would necessarily be sought from the tribal treasury, the Court should find that tribal sovereign immunity also extends to Mr. Mathiesen and Mr. Smith. Ingrassia, F. Supp. d at. D. The Tribe Has Not Waived Its Tribal Sovereign Immunity From Suit And Congress Has Not Abrogated Its Immunity. Whilst tribal sovereign immunity may be waived by an Indian tribe or abrogated by Congress, any such abrogation must be unequivocally expressed and is to be narrowly construed. Santa Clara Pueblo, U.S. at [a waiver of tribal sovereign immunity cannot be implied but must be unequivocally expressed. ]. Accord, C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, U.S., (0) [ To abrogate tribal immunity, Congress must unequivocally express that purpose. ]; Pan American Co. v. Sycuan Band of Mission Indians, F.d, (th Cir. ) [ [T]ribal sovereign immunity remains intact unless surrendered in express and unequivocal terms. ]. The requirement that the waiver be unequivocally expressed is not a requirement that may be flexibly applied or even disregarded based on the parties or the specific facts involved. Ute Distribution Corp. v. Ute Indian Tribe, F.d 0, (0th Cir. ). In the absence of a clearly expressed waiver by either the tribe or Congress, the Supreme Court has refused to find a waiver of tribal sovereign immunity based on policy concerns, perceived inequities arising from the assertion of immunity, or the unique context of a case. Id. Moreover, the Ninth Circuit has held that [t]here is a strong presumption against waiver of tribal sovereign immunity, Demontiney v. U.S. ex rel. Dept. of Interior, Bureau of Indian Affairs, F.d 0, (th Cir. 0). It is the plaintiff, not the defendant, who bears the burden of showing a waiver of tribal sovereign immunity. Hall v. Mooretown Rancheria, U.S. Dist. Lexis, citing Ingrassia v. Chicken Ranch Bingo and Casino, F.Supp.d, - (E.D. Cal. 0).

10 Case :-cv-00-awi-sms Document - Filed 0// Page 0 of 0 In the present action, the plaintiffs have neither plead the existence of any statements within an employment contract nor provided the Court with any other indicia, express or implicit, that tribal waiver of sovereign immunity exists in this case. In fact, the plaintiffs personnel files demonstrate the opposite: the plaintiffs, having reviewed the Casino Handbook, consented to the exclusive jurisdiction of the Tribe and agreed to raise any and all claims in connection with their employment in a tribal forum. Miranda Declaration, p., -, Exhibits A and B thereto. See also, Argument IV, infra. The plaintiffs, therefore, have failed to carry their burden of showing a waiver of the Tribe s sovereign immunity and the Tribe s sovereign immunity remains intact. The plaintiffs have also failed to demonstrate that Congress has abrogated the Tribe s sovereign immunity. Like tribal waivers of sovereign immunity, congressional abrogation cannot be implied. See Okla. Tax Comm n v. Citizen Band of Potawatomi Tribe of Okla., U.S. 0, 0 () [Supreme Court holding that an abrogation of tribal sovereign immunity by Congress cannot be determined by implication and must be expressly stated]; C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., U.S., (0) [ To abrogate tribal immunity, Congress must unequivocally express that purpose ]. The ADEA does not expressly and unequivocally abrogate tribal immunity. Court decisions addressing whether similar legislation abrogates tribal sovereign immunity support the interpretation that the ADEA does not abrogate the Tribe s immunity. In, the United States District Court for the Northern District of California considered whether the Fair Labor Standards Act ( FLSA ) applied to a casino wholly owned and operated by the Big Valley Band of Pomo Indians. In Larimer v. Konocti Vista Casino Resort, Marina & RV Park, F. Supp. d (N.D. Cal. ), the district court specifically addressed the issue of whether the FLSA abrogated tribal sovereign immunity. Id. at. The court noted that the FLSA did not specifically reference tribes anywhere in the statutory scheme. Id. The court further found that Congress had limited the definition of public agencies in the FLSA, and therefore had specifically considered the abrogation issue and did not include tribes among those sovereigns whose immunity was being abrogated. Id. Congress omission was thus telling evidence of Congress decision not to abrogate and, therefore, the district court held that the FLSA claim was barred by tribal sovereign immunity. Id. 0

11 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 Like the FLSA, notably absent in the ADEA is any reference to Indian tribes. There is no indication that Congress intended to include Indian tribes within the ambit of the ADEA. Abrogation of tribal sovereign immunity by implication may not be inferred. Okla. Tax Comm n., U.S. at 0. If Congress had intended to waive tribal sovereign immunity in its enactment of the ADEA, it could have easily done so by explicitly applying the ADEA to Indian tribes. For example, Congress applied the Bankruptcy Act, U.S.C. 0, et seq., to governmental units, defining them to include [any] foreign state; or other foreign or domestic government. U.S.C. 0() (emphasis added). See Krystal Energy Co. v. Nation, 0 U.S. App. LEXIS, * (th Cir. 0) [ Indian tribes are certainly governments [for purposes of the Bankruptcy Act], whether considered foreign or domestic (and, logically, there is no other form of government outside the foreign/domestic dichotomy, unless one entertains the possibility of extra-terrestrial states). ]. There simply is no abrogation of tribal sovereign immunity in the ADEA. Because all the defendants enjoy sovereign immunity from suit and neither the Tribe nor Congress has waived that immunity, the Court is obligated to dismiss the complaints. II. THE ADEA DOES NOT APPLY TO INDIAN TRIBES AND, THEREFORE, THE PLAINTIFFS CAUSES OF ACTION FAIL TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED. Dismissal for failure to state a claim under Rule (b)() is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Id., quoting Balistreri v. Pacifica Police Dep t, 0 F.d, (th Cir. ). To survive a motion to dismiss, a plaintiff s complaint must have sufficient facts to state a facially plausible claim to relief. Id., quoting Shroyer v. New Cingular Wireless Servs., Inc., F.d 0, 0 (th Cir. 0). This plausibility standard asks for more than a sheer possibility that a defendant has acted unlawfully. Ashcroft v. Iqbal, U.S.,. Where a complaint pleads facts that are merely consistent with a defendant s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id., quoting Bell Atl. Corp. v. Twombly, 0 U.S., (0). Here, the plaintiffs claims must be dismissed because all claims rely upon alleged violations of the ADEA, a statute that is inapplicable to Indian tribes.

12 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 A. The Plain Language Of The ADEA Does Not Apply The Statute To Indian Tribes. In the complaints, the plaintiffs allege that Defendants Chicken Ranch Casino and Chicken Ranch Rancheria of Me-Wuk Indians of California are an employer as defined by the ADEA, U.S.C. 0(b), in that Defendants engage in an industry affecting commerce and has had more than employees for each working day in each of or more calendar weeks in the current or preceding year. Borrichio Complaint, p.,. This conclusion is incorrect. The ADEA defines the term employer as: [A] person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 0,, employers having fewer than fifty employees shall not be considered employers. U.S.C. 0(b) (emphasis added). U.S.C. 0 defines the term person to mean: one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons. U.S.C. 0(a). An Indian tribe is not an individual, partnership, association, corporation, business trust, legal representative, or group of persons. Rather, Indian tribes are quasi-sovereign entities possessing inherent powers of self-government. United States v. Mazurie, U.S., (). As a quasisovereign entity, the Tribe does not fall within the definition of person and is therefore not encompassed within the meaning of employer. Indian tribes are beyond the legislation s reach. See United States v. Cooper, U.S. 00, 0 () [ Since in common usage the term person does not include the sovereign, statutes employing the phrase are ordinarily construed to exclude it. ]; Al- Haramain Islamic Found., Inc. v. Obama, 0 F.d, - (th Cir. Cal. ) [upholding United States v. Cooper interpretation of person to exclude the sovereign]. In the absence of any Recently, the Ninth Circuit Court of Appeals referred, with approval, to the holding in Cooper, with respect to civil liability under the Foreign Intelligence Surveillance Act of : [W]e do not interpret the reference to person in 0 to mean that a government employee is liable in his official capacity. See also United States v. Cooper Corp., U.S. 00, 0, S.Ct., L.Ed. 0 () (noting in a criminal antitrust action that in common usage, the term person does not include the sovereign ). Congress can and did waive sovereign immunity with respect to violations for which it wished to render the United States liable. It deliberately did not waive immunity with

13 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 provision of the ADEA that evidences an intention on the part of Congress to apply the legislation to Indian tribes, the Court is compelled to conclude that the ADEA does not apply to the Tribe. B. The Federal Cases Interpreting The ADEA Support The Tribe s Position. The issue of whether a federal statute silent on the issue of applicability to Indian tribes is, in fact, applicable to Indian tribes was squarely addressed by the Ninth Circuit in EEOC v. Karuk Tribe Hous. Auth., 0 F.d 0 (th Cir. Cal. ) ( Karuk ). There, an employee of the Karuk Tribe Housing Authority, who was also a tribal member, filed an administrative complaint with the Equal Employment Opportunity Commission ( EEOC ), alleging that he had been terminated due to his age. Following the rule set forth in Donovan v. Coeur d Alene Tribal Farm, F.d, (th Cir. ), the Ninth Circuit held that, where a statute is silent with respect to Indians, the statute will not apply if: () [T]he law touches exclusive rights of self-governance in purely intramural matters ; () the application of the law to the tribe would abrogate rights guaranteed by Indian treaties ; or () there is proof by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations... In any of these three situations, Congress must expressly apply a statute to Indians before we will hold that it reaches them. In Karuk, the parties had agreed that only the first Coeur d Alene exception whether the law touches exclusive rights of self-governance in purely intramural matters was at issue. Karuk, 0 F.d at 0. Finding that the ADEA did not apply to the tribe, the court observed that the employer was a tribal government, acting in its role as a provider of a governmental service: ensuring the provision of housing for its members. Id. at 0-0. The court then looked to the federal law that provided a source of funding for the Housing Authority and which expressly specified that such funds should be provided in a manner that recognizes the right of Indian self-determination and tribal selfgovernance. Id. at 00. The court noted that the legislation highlighted the importance of affordable homes in safe and healthy environments on Indian reservation [and] in Indian communities as a respect to 0, and the district court erred by imputing an implied waiver. Al Haramain s suit for damages against the United States may not proceed under 0. Al-Haramain Islamic Found., Inc. v. Obama, 0 F.d, - (th Cir. Cal. ).

14 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 means to achieve self sufficiency and self-determination. Id. In reaching its conclusion, the court also considered that the dispute was between a tribal member and a tribal government, that the business was located on-reservation, and that the intramural nature of the dispute was underscored by the fact that the Tribe ha[d] an established internal process for adjudicating such matters. Id. at 0. The court therefore held that federal regulation of the employment relationship between the Housing Authority and the former employee/member of the Tribe did touch exclusive rights of selfgovernance in purely intramural matters and therefore the ADEA was applicable to Indian tribes only if Congress explicitly so indicated, which it did not. Id. at 0. Likewise, in analyzing the jurisdictional authority of the EEOC over the Cherokee Nation pursuant to the ADEA, the Tenth Circuit in EEOC v. Cherokee Nation, F.d (0th Cir. ) ( Cherokee Nation ) reached the same result through different reasoning. In Cherokee Nation, the court analyzed the application of the ADEA to Indian tribes much like the second Coeur d Alene exception, finding that a right to tribal self-government derived from the treaty that unequivocally recognize[d] tribal self-government. Id.. While the Tenth Circuit did not go into great detail regarding how the application of the ADEA to the tribe in particular, to its employment relationship with an employee of a tribal health and human services would encroach upon the right to selfgovernment, the court found that because the ADEA is silent on its applicability to Indian tribes, and rules of statutory construction require that ambiguous provisions be construed liberally in favor of the Indians Blackfeet Tribe, U.S. at, the ADEA does not apply to Indian tribes. Karuk at 00, discussing Cherokee Nation. In reaching its conclusion, the court also held that: We believe that unequivocal Supreme Court precedent dictates that in cases 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 sovereignty rights (as manifested, e.g., by the legislative history, or the existence of a comprehensive statutory plan), the court is to apply the special canons of construction to the benefit of Indian interests. Cf. Merrion, U.S. at - n. ( Because the Tribe retains all inherent attributes of sovereignty that have not been divested by the Federal Government, the proper inference from silence [in the Tribe s Constitution] is that the sovereign power to tax remains intact. ). We conclude that, in this case, the bases for inferring congressional intent were not so clear as to overcome the burden which the EEOC was required to carry. Cherokee Nation at. See also County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 0 U.S., (); Montana v. Blackfeet Tribe, U.S., ();

15 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 Artichoke Joe s California Grand Casino v. Norton, F.d, 0 (th Cir. 0) [ We adopt Defendants construction, not because it is necessarily the better reading, but because it favors Indian tribes and the statute at issue is both ambiguous and intended to benefit those tribes. ]. Thus, where ambiguity or silence exists as to whether a federal law should be applied to Indian tribes, especially where there exists a comprehensive statutory plan, the court found that the Indian canons of construction must preclude application of the ADEA. Turning to the present action, if the ADEA is applied to the Tribe, it would unavoidably result in an impermissible infringement upon the exclusive rights of tribal self-government, an abrogation of the rights guaranteed to the Tribe by virtue of its inherent sovereignty, and its application would contravene the express legislative history and congressional intent that underlies the IGRA. First, with respect to the first Coeur d Alene exception, like the tribal employer in Karuk acting in its role as provider of a governmental service, the Tribe, in its operation of the Chicken Ranch Casino, acts to ensure the provision of tribal revenue, the vast portion of which is specifically set aside for the operation of the tribal government and the provision of services to tribal members. Section 0() of the IGRA, entitled Declaration of Policy, specifically states that the purpose of the IGRA is to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments. U.S.C. 0() (emphasis added). Moreover, the Gaming Compact expressly requires that the Tribe adopt and comply with standards no less stringent than federal age anti-discrimination laws, thus compelling the Tribe to enact its own standards in accordance with the strong federal policy encouraging tribal selfgovernance, which it did. In addition to the policies established in the Gaming Compact and the IGRA, the instant case is indistinguishable from the Karuk case in that the Tribe s business is located within the exterior boundaries of the Tribe s Reservation and the Tribe has established an internal protocol for the resolution of disputes of this kind. Unlike an off-reservation hotel/restaurant or commerce initiated outside of Indian country, the Tribe operates exclusively within its tribal trust lands. Ralston Declaration, p... Also like Karuk, the intramural nature of the dispute is evidenced by the fact that the Tribe has established three internal independent procedures for adjudicating such matters, which

16 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 are contained in: the Employment Rights Ordinance, the Claims Ordinance, and the Tribal Court Ordinance. For these reasons, the Tribe s operation of its Casino is within the kind of internal and intramural activity contemplated by the first Coeur d Alene exception. Second, regarding whether the application of the ADEA to the Tribe would abrogate rights guaranteed by Indian treaties, the present dispute is analogous to that decided in Cherokee Nation. Despite the absence of applicable treaty provisions, an analysis of the second Coeur d Alene exception is relevant to the instant action because as the Ninth Court noted: the identical right should not have a different effect because it arises from general treaty language rather than recognized, inherent sovereign rights. Karuk at 00, citing United States Dep t of Labor v. Occupational Safety & Health Review Comm n, F.d, (th Cir. ). Here, because the ADEA is silent as to its application to Indian tribes and there exists a comprehensive statutory plan, the IGRA, the Court is obligated to construe the ADEA liberally and in favor of the Tribe. Any contrary determination would eradicate the effect of the Indian canons of construction to the determination of the tribal interests for which the canons exist to advance. Third, regarding the final Coeur d Alene exception, the legislative history and the comprehensive nature of the IGRA clearly demonstrate congressional desire for tribal law, rather than federal law, to apply in matters of employment rights in connection with Indian gaming. See S.Rep. No., 00th Cong., d Sess. (), reprinted in U.S.C.C.A.N. 0, 0. Moreover, as demonstrated in Argument II(B), infra., the IGRA preempts the field of Indian gaming and, therefore, the plaintiffs, having been employed by the Tribe s Casino, fall within the ambit of such activities. Gaming Corp. of America v. Dorsey & Whitney, F.d (th Cir. ). In conclusion, the Tribe, having been required to meet but one of the above exceptions, has demonstrated that it falls within the first, second, and third exceptions. As such, Congress must have expressly applied the ADEA to Indians or Indian tribes before this Court can find that it reaches them. Because Congress has not, the Court is compelled to dismiss the plaintiffs complaints brought pursuant to the ADEA. /// ///

17 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 III. THE INDIAN GAMING REGULATORY ACT, U.S.C. 0, ET SEQ., PREEMPTS THE APPLICATION OF THE ADEA IN THIS CASE. In Gaming Corporation of America v. Dorsey & Whitney, F.d, the Court of Appeals for the Eighth Circuit held that the IGRA preempts the field of gaming on Indian reservations. The legislative history contains a strong statement about IGRA s preemptive force. The Senate committee report [that accompanied the bill that became the IGRA] stated that S. is intended to expressly preempt the field in the governance of gaming activities on Indian lands. Consequently, Federal courts should not balance competing Federal, State, and tribal interests to determine the extent to which various gaming activities are allowed. S.Rep. No., 00th Cong., d Sess. (), reprinted in U.S.C.C.A.N. 0, 0. Id. at (emphasis added). The IGRA, therefore, preempts the application of standards other than those contained within it. The preemption referred to in S. Rep. No. was intended to exclude statutes like the ADEA. Furthermore, the Tribal-State Compact Between the State of California and the Chicken Ranch Rancheria ( Gaming Compact ) envisions that the Tribe will enact and enforce its own employment standards at its casinos, leaving no room for the ADEA to do so. Section 0.(g) of the Gaming Compact provides, in relevant part, that the Tribe must: Adopt and comply with standards no less stringent than federal laws forbidding employers generally from discriminating in the employment of persons to work for the Gaming Operation or in the Gaming Facility on the basis of age [.] Ralston Declaration, p.,. To implement Section 0.(g) of the Gaming Compact, on February, 0, the Chicken Ranch Tribal Council adopted, by unanimous vote, Ordinance 0-0-, entitled An Ordinance of the Tribal Council of the Chicken Ranch Rancheria Establishing Employment Rights Standards for the Tribe s Gaming Facility ( Employment Rights Ordinance ). Exhibit B to the Ralston Declaration. Section.0.00 of the Employment Rights Ordinance provides that an unlawful employment practice is established when the complaining party demonstrates that age was a motivating factor for any employment practice, even though other factors also motivated the practice. Id. at p.. The Employment Rights Ordinance establishes a procedure for any person who believes that he or she has been a victim of an unlawful employment practice, including age discrimination. Id. Under Section.0.00 of the Employment Rights Ordinance, employees are permitted to file an appeal of a Tribal

18 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 Gaming Commission decision to either the Tribal Council or to the Tribal Court. Id. at p. ; see Argument IV., infra. It is, thus, unquestionable that Congress intended the IGRA, the Gaming Compact, and the Employment Rights Ordinance to govern the relationship between the Tribe s Casino employees and the Tribe. Congress did not intend the ADEA to cover employees of an Indian tribe s casino, and, instead, made provision for such employees to be covered under tribal law. The ADEA cannot be used to undermine that congressional intent. IV. THE PLAINTIFFS FAILED TO EXHAUST THEIR TRIBAL ADMINISTRATIVE REMEDIES, WHICH IS A JURISDICTIONAL PREREQUISITE TO SUIT IN THIS COURT. It is a well-established rule of federal law that a plaintiff must exhaust his or her tribal court remedies prior to maintaining a lawsuit against an Indian or Indian tribe. National Farmers Union Ins. Cos. v. Crow Tribe, U.S. (); Iowa Mutual Ins. Co. v. LaPlante, 0 U.S. (). The rationale for the rule was concisely expressed in Williams v. Lee, U.S., (): There can be no doubt that to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves. It is immaterial that respondent is not an Indian. He was on the Reservation and the transaction with an Indian took place there. Allowing the plaintiffs to pursue their actions in a federal, rather than a tribal, forum would infringe on the right of reservation Indians to make their own laws and be ruled by them. Williams v. Lee, U.S., (). Such a result cannot be allowed by this Court consistent with the relevant decisions of the Ninth Circuit Court of Appeals:... both the Supreme Court and this circuit have held that non-indian defendants must exhaust tribal court remedies before seeking relief in federal court, even where defendants allege that proceedings in tribal court exceed tribal sovereign jurisdiction. Burlington Northern Railroad Company v. Crow Tribal Council, 0 F.d, ( Cir. ). See also Iowa Mut. Ins. Co. v. LaPlante, 0 U.S. at ; National Farmers Union Ins. Companies v. Crow Tribe, U.S. at -; Stock West Corp. v. Taylor, F.d, (th Cir. ); Stock West, Inc. v. Confederated Tribes of the Colville Reservation, F.d, (th Cir. ).

19 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 The tribal exhaustion doctrine applies even when a tribal agency other than a tribal court arguably has jurisdiction, Burlington Northern R. Co. v. Crow Tribal Council, 0 F.d, (th Cir.), and applies in state court as well as federal court. U.S. v. Plainbull F.d, (th Cir.); Redding Rancheria, Cal.App.th at 0-. A tribe s administrative procedures are quasi-judicial functions that are often analogized to tribal courts. As the court stated in National Farmers Union Insurance Cos. v. Crow Tribe, U.S. at : Our cases have often recognized that Congress is committed to a policy of supporting tribal self-government and self-determination. That policy favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge. Decisions of the federal courts have recognized the mandatory, jurisdictional nature of the policy of exhausting administrative remedies as a condition precedent to maintaining a suit in federal court. With regard to claims against the United States, the Ninth Circuit has held: In a claim for damages against the United States, an independent cause of action must first be submitted for administrative review before that claim can be filed in federal court. See U.S.C. (a). Where such a claim is not first presented to the appropriate agency, the district court, pursuant to Federal Rule of Civil Procedure (b)(), must dismiss the action for lack of subject matter jurisdiction. Goodman v. United States, F.d 0, 0 (th Cir. 0), citing McNeil v. United States, 0 U.S. 0 (). The requirement that a plaintiff exhaust his or her tribal administrative remedies under tribal law prior to maintaining a lawsuit in federal court is also in conformity with well-established state law and policy: A failure to exhaust administrative remedies is a fundamental defect. Lopez v. Civil Service Commission, Cal. App. d 0, (). In Lopez, the California Court of Appeals stated the rationale for requiring the exhaustion of administrative remedies prior to filing a lawsuit: The administrative tribunal is created by law to adjudicate the issues sought to be presented to the court. The claim or cause of action is within the special jurisdiction of the administrative tribunal, and the courts may act only to review the final administrative determination. If a court were to allow a suit to be maintained prior to such final determination, it would be interfering with the subject matter jurisdiction of another tribunal. Accordingly, the exhaustion of an administrative remedy has been held jurisdictional in California.

20 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 Id. at, quoting Witkin, CALIFORNIA PROCEDURE (d ed. ), Actions,, p.. See also Redding Rancheria v. Superior Court, Cal.App.th, 0 (0) [dismissing claims based on failure to exhaust tribal administrative remedies: Any unfairness here is largely a product of plaintiffs litigation tactics. Although the Tribe provides a mechanism to resolve civil suits, literally by means of a hearing before the sovereign, the tribal council, plaintiff refused to follow this procedure. ]. The Ninth Circuit Court of Appeals has ruled that the enforcement of tribal law in state and federal courts is exclusively a question of comity. Wilson v. Marchington, F.d 0 (th Cir. ). In Wilson, the court ruled that tribal law should generally be enforced in state and federal courts: As a general policy, [c]omity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect. Id. at 0, citing Somportex Ltd. v. Philadelphia Chewing Gum Corp., F.d, 0 (rd Cir.). See also Wisconsin Potowatomies v. Houston, F.Supp. (W.D. Mich ); Mexican v. Circle Bear, 0 N.W.d (S.D. ); Brown v. Babbitt Ford, Inc. Ariz., P.d (Ariz. Ct. App. ). This reasoning concerning comity applies equally well here. It is, furthermore, the policy of Congress to give full faith and credit to tribal courts and laws. Under Public Law 0, U.S.C. 0(c), Congress specifically required states covered by the Act to recognize tribal law: Any tribal ordinance or custom heretofore or hereafter adopted by an Indian Tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of any civil causes of action pursuant to this section. Thus, this Court is obligated to recognize tribal law requiring the exhaustion of tribal remedies prior to the exercise of jurisdiction by the Court. The plaintiffs have failed to exhaust three independent tribal remedies and that failure precludes this Court from exercising jurisdiction. A. The Plaintiffs Have Failed to Exhaust the Remedies Provided By The Tribe s Employment Rights Ordinance. As stated above, the Tribe has enacted an Employment Rights Ordinance, as required by Section 0. of the Tribal-State Gaming Compact, in order to establish standards to prevent tribes from

21 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 engaging in discriminatory employment practices at the Tribe s gaming operation on the basis of race, color, national origin, gender, sexual orientation, age, or disability. Exhibit B to the Ralston Declaration. Section.0.00 of the Employment Rights Ordinance provides that an unlawful employment practice is established when the complaining party demonstrates that age was a motivating factor for any employment practice, even though other factors also motivated that practice. Id. at p.. Section.0.00 of the Employment Rights Ordinance sets forth the procedure for filing a complaint against the Tribe for violation of Section.0.00:.0.00 Procedure for Filing of Complaint; Enforcement. Any person who believes that he/she has been the victim of an unlawful employment practice under this Ordinance ( Complainant ) may file a complaint with the Tribe s Tribal Gaming Commission ( TGC ).. The TGC shall have 0 days from the filing of the Complaint in which to investigate the allegations of the Complaint. All investigations must be concluded within 0 days.. If, at the conclusion of the investigation, the TGC determines that this Ordinance has been violated, the TGC shall issue a Notice of Violation to the Employer, informing the Employer that the violation has occurred.. The TGC, the Complainant, and a representative of the Employer shall, within 0 days of the issuance of the Notice of Violation, meet and attempt to reach an informal settlement of the issues related to the violation.. Where the TGC determines, based upon substantial evidence that a violation of this Ordinance has occurred, and no informal settlement of the issues related to the violation is reached, it may impose one or more of the following sanctions: A. Issue an order instructing the Employer to hire, reinstate, or promote the Complainant or otherwise carry out the action that should have occurred had the violation of this Ordinance not occurred; B. Issue an order instructing the Employer to pay to the Complainant any back pay or pay increase that was lost by the Complainant as a result of the violation of this Ordinance; C. Award out of pocket damages actually incurred by the Complainant to the Complainant; and D. Impose punitive damages in the nature of fine of up to $, on the Employer, or the person or persons who committed the act of discrimination.

22 Case :-cv-00-awi-sms Document - Filed 0// Page of 0 Under Section.0.00 of the Employment Rights Ordinance, should the claim be denied, employees are permitted to file an appeal of a Tribal Gaming Commission decision to either the Tribal Council or to the Tribal Court. Id. at p.. As a part of the implementation of the Employment Rights Ordinance, the Casino adopted an Employee Handbook ( Handbook ), which establishes the rights and responsibilities of Casino employees. Exhibit A to the Miranda Declaration. The Handbook states the goals of the Casino to include provid[ing] equal employment opportunity and treatment regardless of age. Id. at p. 0. The Handbook further sets forth Employee Rights : Id. at p.. The tribe has enacted an Employee Rights Ordinance, which recognizes and seeks to insure that employees enjoy a stable working environment and protection of their rights. Every employee has the right to file a grievance and seek assistance in accordance with the limitations of these policies and procedures and the Employment Rights Ordinance. The employee accepts the terms and conditions of the Handbook by executing an Acknowledgment of Receipt ( Acknowledgement ) that: Id. As an employee of the Chicken Ranch Casino, I understand and consent to the exclusive jurisdiction of the its [sic] Grievance Processes, these Handbook rules for any and all disputes in connection with my employment with the organization. I also consent to the application of tribal laws, both substantive and procedural, regarding any and all proceedings, matters and things relating to my employment relationship within the organization. Here, the plaintiffs have failed to comply with the grievance processes set forth in the Employment Rights Ordinance and Handbook the very processes to which the plaintiffs consented by executing the Acknowledgment. The plaintiffs have not filed complaints with the Tribal Gaming Commission for violation of Section.0.00 of the Employment Rights Ordinance pursuant to Section Miranda Declaration, p.. By executing the Acknowledgment, each of the plaintiffs acknowledged receipt of a copy of the Handbook that contains notice of the Employment Rights Ordinance, which states that the plaintiffs understood and agreed that it was their responsibility to read and become familiar with the Casino s policies and procedures, including the procedures under the Employment Rights Ordinance. Exhibit B to the Miranda Declaration. This failure by the plaintiffs