Dean S. Seneca v. Great Lakes Inter-Tribal Council, Inc.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 22, 2023*
Decided July 5, 2023
Before
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2271
DEAN S. SENECA,
Plaintiff-Appellant,
v.
GREAT LAKES INTER-TRIBAL
COUNCIL, INC.,
Defendant-Appellee.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 21-cv-304-wmc
William M. Conley,
Judge.
O R D E R
Dean Seneca sued the Great Lakes Inter-Tribal Council, a non-profit consortium
of Indian tribes, alleging employment discrimination. The district court dismissed the
case. It correctly ruled that, like its constituent member tribes, the Council enjoys tribal
sovereign immunity from suit. We therefore affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-2271 Page 2
We begin with two procedural observations. First, we take Seneca’s factual
allegations as true and draw all reasonable inferences in his favor. Aluminum Trailer Co.
v. Westchester Fire Ins. Co., 24 F.4th 1134, 1136 (7th Cir. 2022). Second, as the district court
did, we also rely on uncontested information about the structure and function of the
Council set forth in one of the declarations supporting the Council’s motion to dismiss.
By relying on materials outside of the complaint, the district court converted the motion
to dismiss into one for summary judgment. See FED. R. CIV. P. 12(d). Doing so normally
requires notice to each party of that conversion and a chance to present relevant
materials. United States v. Rogers Cartage Co., 794 F.3d 854, 861 (7th Cir. 2015). But on
appeal Seneca does not argue that he would have submitted materials to contest the
Council’s structure or function; thus this deviation from Rule 12(d) is irrelevant. See id.
The Council is a non-profit composite of its member Indian tribes, which are
federally recognized and own and control it. It offers government services related to
community development; assistance for families, the elderly, people with disabilities,
and children; oversight of health and epidemiology; and vocational training. It does not
generate its own revenue and instead relies on dues from member tribes and federal,
state, and private grants. The Council employed Seneca as director of epidemiology for
under a year, discharging him in 2018. Seneca alleges that the Council fired him because
of his race, color, national origin, age, sex, gender identity, and sexual orientation in
violation of federal law, including Title VII of the Civil Rights Act of 1964.
The Council successfully moved to dismiss his suit. It sought dismissal based on
tribal sovereign immunity and its view that the federal statutes Seneca invoked exclude
claims against Indian tribes. The district court accepted this first argument and did not
reach the second, reasoning that the Council, as a consortium of its members, enjoys
tribal sovereign immunity. Noting that tribal sovereign immunity is not a jurisdictional
defense, it ruled that Seneca failed to state a claim. See Meyers v. Oneida Tribe of Indians of
Wis., 836 F.3d 818, 820 (7th Cir. 2016).
On appeal, Seneca asserts that the court erred for three reasons. First, it applied
the wrong test when deciding that the Council enjoys sovereign immunity. Second, the
Council had waived sovereign immunity. Third, shielding the Council with sovereign
immunity violates his due process rights.
We review de novo dismissals based on the doctrine of tribal sovereign
immunity. See Meyers, 836 F.3d at 820 (citing Miller v. Herman, 600 F.3d 726, 732–33
(7th Cir. 2010)); Aluminum Trailer Co., 24 F.4th at 1136. This doctrine is over two

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No. 22-2271 Page 3
centuries old, see, e.g., Parks v. Ross, 52 U.S. (11 How.) 362 (1851), and the Supreme Court
has consistently affirmed it, see, e.g., Michigan v. Bay Mills Indian Cmty., 572 U.S. 782
(2014). Under the doctrine, “[s]uits against Indian tribes are … barred … absent a clear
waiver by the tribe or congressional abrogation.” Okla. Tax Comm’n v. Citizen Band
Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991). It is undisputed that each
member of the Council enjoys tribal immunity from suit. It is also undisputed that the
Council is a combination of its member tribes, which own and operate the Council’s
not-for-profit services. Thus, the tribal immunity of its members extends to the Council.
On appeal, Seneca contests this conclusion about immunity. First, he urges us to
adopt the test in McNally CPA’s & Consultants, S.C. v. DJ Hosts, Inc., 692 N.W.2d 247,
251–52 (Wis. Ct. App. 2004). There, the court determined that a for-profit corporation
did not enjoy tribal sovereign immunity after a tribe bought all of its shares. Id. at 250.
We have not adopted McNally’s test, but it would not help Seneca even if we had. As
McNally held, its ruling was “narrow” and confined to cases where, unlike here, a tribe
buys all the shares of “an existing for-profit corporation.” Id. at 253. Seneca also argues
that the Council is not entitled to immunity under other tests involving corporate
ownership. E.g., J.L. Ward Assocs. v. Great Plains Tribal Chairmen’s Health Bd., 842 F. Supp.
2d 1163 (D.S.D. 2012); Runyon ex rel. B.R. v. Ass’n of Vill. Council Presidents, 84 P.3d 437
(Alaska 2004); Cash Advance & Preferred Cash Loans v. State ex rel. Suthers, 242 P.3d 1099
(Colo. 2010). But these tests do not cut in favor of Seneca either: the Council is a non-
profit combination of its member Indian tribes, organized to provide government-like
services to members of its community and their families, children, people with
disabilities, and the elderly. Put simply, it is an arm of the tribes and therefore entitled
to tribal sovereign immunity. See Mestek v. Lac Courte Oreilles Cmty. Health Ctr., __ F.4th
__, No. 22-2077, 2023 WL 4240807, at *3 (7th Cir. June 29, 2023) (adopting the arm-of-
the-tribe test).
Seneca’s next argument—that the Council waived its sovereign immunity—also
fails. First, he argues that the Council waived its immunity by agreeing to abide by Title
VI of the Civil Rights Act of 1964 when it accepted federal funds. Title VI allows for
judicial review of claims of discriminatory exclusion from federally funded programs.
See 42 U.S.C. § 2000d-2. Even if the Council’s receipt of federal funds waived its
sovereign immunity under Title VI (a question we do not decide), that would not help
Seneca. He asserts employment discrimination under Title VII and similar employment-
protection laws, not Title VI. As the Supreme Court has explained, “it was unnecessary
to extend Title VI more generally to ban employment discrimination, as Title VII
comprehensively regulates such discrimination.” Consol. Rail Corp. v. Darrone, 465 U.S.

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No. 22-2271 Page 4
624, 632 n.13 (1984). And Seneca does not cite any provisions in the laws he sued under
that purport to waive sovereign immunity based on a receipt of federal funds.
Seneca also argues that the Council waived sovereign immunity through its job
postings. The postings stated that the Council is an equal opportunity employer and
will “comply fully with all federal and state laws.” This is not the required “clear
waiver by the tribe” of immunity from suit. Okla. Tax Comm’n, 498 U.S. at 509. The job
postings do not mention sovereign immunity, forums available for litigation,
amenability to suit, or anything else that clearly waived the Council’s immunity.
See, e.g., Nanomantube v. Kickapoo Tribe, 631 F.3d 1150, 1152–53 (10th Cir. 2011).
Finally, Seneca argues that, unless we deem the Council to have waived its tribal
sovereign immunity, he will have no forum to litigate the merits of his discrimination
claims, which is an outcome that he asserts would violate his right to due process under
the Fifth and Fourteenth Amendments. But neither the Fifth Amendment nor the
Fourteenth Amendment applies to Indian tribes. Talton v. Mayes, 163 U.S. 376, 384
(1896); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). Seneca responds by citing
Public Law 280, which grants certain states criminal jurisdiction over persons in “Indian
country” and opens some states’ courts to civil claims arising there. 18 U.S.C. § 1162;
25 U.S.C. §§ 1321–26; 28 U.S.C. § 1360. But the Supreme Court has rejected Seneca’s
assumption that this law overcomes tribal sovereign immunity. Three Affiliated Tribes of
the Fort Berthold Rsrv. v. Wold Eng’g, 476 U.S. 877, 892 (1986).
We have considered Seneca’s remaining arguments, and none has merit.
AFFIRMED

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