Jim v. Shiprock Associated Schools

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 10, 2020
• Docket: 19-2100
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 10, 2020 _________________________________ Christopher M. Wolpert Clerk of Court KIM R. JIM,

Plaintiff - Appellant, No. 19-2100 v. (D.C. No. 1:17-CV-01114-RB-JFR) (D. N.M.) SHIPROCK ASSOCIATED SCHOOLS, INC.,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges. _________________________________

Ms. Kim Jim sued her employer (Shiprock Associated Schools, Inc.)

for discrimination under Title VII, which contains an exception for Indian

tribes. 42 U.S.C. § 2000e(b). 1 But what is an Indian tribe? Sometimes the

existence of a tribe is obvious. But what about a private corporation

* This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 In district court, Ms. Jim also claimed a violation of the Americans with Disabilities Act, and the corporation addresses this claim in the appeal. But Ms. Jim hasn’t appealed the ruling on this claim. serving a tribe? The issue arises here because Ms. Jim’s employer was a

private corporation that served an Indian tribe (the Navajo Nation).

The district court granted summary judgment to the corporation,

regarding it an Indian tribe under the exception in Title VII. Ms. Jim

appeals, and we affirm.

How we review the district court’s ruling

In reviewing the district court’s characterization of the corporation

as an Indian tribe, we engage in de novo review. Ferroni v. Teamsters,

Chauffers & Warehousemen Local No. 222, 297 F.3d 1146, 1149 (10th Cir.

2002). In conducting this review, we focus on the context for Title VII’s

reference to an “Indian tribe.” See Dille v. Council of Energy Res. Tribes,

801 F.2d 373, 376 (10th Cir. 1986) (“[T]he definition of an Indian tribe

changes depending upon the purpose of the regulation or statutory

provision under consideration.”); accord Smith v. Salish Kootenai Coll.,

434 F.3d 1127, 1133 (9th Cir. 2006) (“Whether an entity is a tribal entity

depends on the context in which the question is addressed.”). In the

context of Title VII, we consider the statutory aim of allowing Indian

tribes “to control their own economic enterprises.” Duke v. Absentee

Shawnee Tribe of Oklahoma Hous. Auth., 199 F.3d 1123, 1125 (10th Cir.

1999) (quoting Dille, 801 F.2d at 375).

2 The Navajo Nation’s creation and control of the corporation

In this context, we have not said how we’d decide whether to

characterize a corporation as an Indian tribe. In analogous circumstances,

however, courts elsewhere have considered an entity an “Indian tribe”

under Title VII when a tribe created and controlled the enterprise. See Pink

v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1188 (9th Cir. 1998)

(Indian tribe supplied the directors and controlled the enterprise); Thomas

v. Choctaw Mgmt./Servs. Enter., 313 F.3d 910, 911 (5th Cir. 2002) (Indian

tribe owned and operated the commercial enterprise).

The corporation here was created under the auspices of the Navajo

Nation. For example, the Navajo Nation’s statutes authorize chapters to

establish local school boards. Navajo Nation Code Ann. tit. 10, § 201.

Given this authority, the Navajo Nation’s Board of Education empowered

the corporation to operate educational programs. The corporation operates

these educational programs under the Tribally Controlled Schools Act. 25

U.S.C. §§ 2501–11.

Given the educational purpose of the corporation, it acts through a

local school board whose members are elected under the Navajo Nation

Election Code. Navajo Nation Code Ann. tit. 10, § 201. Under the Code,

every board member must be enrolled in the Navajo Nation. See id.; Navajo

Nation Code Ann. tit. 11, § 8(D)(4)(b).

3 The Navajo Nation supplies not only the board members, but also

most of the students and employees. (Enrollees in Indian tribes comprise

over 98% of the students and roughly 80% of the school employees.)

Despite the heavy involvement of tribal members, Ms. Jim observes

that (1) some students and employees are not members of an Indian tribe

and (2) the corporation was formed under state law. But these observations

do little to diminish the role of the Navajo Nation.

Though roughly 80% of the employees are tribal members, Ms. Jim

contends that all of the employees are considered federal employees for

purposes of the Federal Tort Claims Act. But characterization as an Indian

tribe turns on context (see p. 2, above), and the issue here involves the

tribe’s creation and control of an enterprise rather than tort liability. So an

employee’s status as a federal employee under the Federal Tort Claims Act

does not affect characterization of the corporation as an Indian tribe.

Ms. Jim not only likens the corporation to a federal entity but also

points out that the entity was created as a non-profit corporation under

state law rather than tribal law. But the corporation also obtained authority

to conduct business under the Navajo Corporation Code.

We addressed a similar issue in Duke v. Absentee Shawnee Tribe of

Oklahoma Housing Authority, 199 F.3d 1123 (10th Cir. 1999). There we

concluded that an Indian housing authority could be characterized as an

4 “Indian tribe” under Title VII even though the entity had been created

under state law. Duke, 199 F.3d at 1124–25. 2

The corporation not only bears the characteristics of an Indian tribe

but also operates under tribal oversight. For example, the corporation

operates the school board, which is accountable to the Navajo Nation for

educational performance. Navajo Nation Code Ann. tit. 10, § 200(B).

Given the Navajo Nation’s oversight, “[i]t is . . . obvious” that the schools

“have been inextricably intertwined with the Navajo Nation government

and their local Navajo communities from their inception.” Rough Rock

Community School v. Navajo Nation, No. SC-CV-06-94, at 71–72 (Nav.

Nat. Sup. Ct. 1995).

Ms. Jim downplays the Navajo Nation’s oversight, pointing to two

proposals. The first proposal apparently remains under consideration; the

second proposal was nixed.

The current proposal would allow the Navajo Nation to authorize

operation of the schools for ten years (rather than only for one year at a

time). But the proposal would still require compliance with the Navajo

2 We’ve held that a private corporation does not share a tribe’s sovereign immunity when the corporation was formed under state law. Somerlott v. Cherokee Nation Distributors, Inc., 686 F.3d 1144, 1149–50 (10th Cir. 2012). This holding does not apply for two reasons. First, our issue involves interpretation of Title VII, not the scope of a tribe’s sovereign immunity. Second, the corporation was formed not only under state law but also under Navajo law.

5 Nation’s requirements. For example, the schools would remain obligated to

submit quarterly and annual reports to the Navajo Nation, satisfy the

Navajo Nation’s academic standards, and comply with the Navajo Nation’s

election laws. Failure to comply with these requirements could force the

corporation to relinquish control of the schools to the Navajo Nation.

Ms. Jim relies not only on this proposal but also on a previous

proposal to remove the Navajo Nation from the funding process. That

proposal would have affected the distribution channels for federal funds.

Funding from the Board of Indian Education has gone to the Navajo

Nation, which then distributes funds to the corporation. Ms. Jim insists

that the corporation had considered removing the Navajo Nation as the

“middle-man.” But even if this proposal were adopted, it wouldn’t affect

the Navajo Nation’s oversight; the proposed change would simply

eliminate the Navajo Nation’s administrative role in distributing the

federal funds.

In addition to these proposals, Ms. Jim argues that the corporation

once refused to provide the Navajo Nation with requested information. For

this argument, Ms. Jim relies only on an excerpt from the corporate

minutes, which reflects disapproval of a request for the corporation’s

report of school board expenditures. A single failure to provide requested

information does not diminish the Navajo Nation’s authority to oversee the

corporation’s activities.

6 Despite the Navajo Nation’s oversight, Ms. Jim argues that the

corporation is controlled by the federal government. This control,

according to Ms. Jim, arises because the corporation operates the schools

with federal and state funding. For example, the corporation receives much

of its funding from the U.S. Bureau of Indian Education, and these funds

come with restrictions. Those restrictions allegedly trigger control by the

federal government rather than the Navajo Nation. We disagree.

Though the financial benefits came with restrictions, the corporation

received federal funding only because the schools were considered

“tribally controlled.” 25 U.S.C. § 2502(a)(1)(B). And a school is

considered “tribally controlled” only if it is “operated by an Indian tribe or

a tribal organization.” 25 U.S.C. § 2511(9).

Though the school is tribally controlled, Ms. Jim argues that the

federal government controls the curriculum. For this argument, Ms. Jim

relies on a federal regulation (25 C.F.R. § 36.24), which applies only to

schools operated by the Bureau of Indian Affairs or other contract schools

that had agreed to adopt the federal regulations on the curriculum. 25

C.F.R. §§ 36.1, 36.2. But Ms. Jim does not present any evidence of an

agreement requiring compliance with the federal regulations. 3 In the

3 In her appeal briefs, Ms. Jim also relies on federal regulations addressing employee grievances (25 C.F.R. part 38). In oral argument, however, Ms. Jim concedes that these regulations do not apply. 7 absence of such an agreement, the Bureau’s funding does not trigger any of

the regulatory requirements. 25 U.S.C. § 2503(b)(1)(B).

* * *

On de novo review, we conclude that the corporation constitutes an

“Indian tribe” under Title VII. The corporation serves the Navajo

community, obtains its governing board from the Navajo Nation, follows

Navajo law, oversees schools populated by Navajo students and staffed by

Navajo members, and receives federal funding because of the corporation’s

service to the Navajo community. In these circumstances, the district court

properly applied the exception for an “Indian tribe.” So we affirm the

dismissal.

Entered for the Court

Robert E. Bacharach Circuit Judge