Theresa Carsten v. Inter-Tribal Council of Nevada

MEMORANDUM

Theresa Carsten appeals the district court’s order dismissing her claim of alleged violation of the Family Medical Leave Act (FMLA) by her individual supervisors and her employer, the Inter-Tribal Council of Nevada (ITCN). We review the district court’s determination that it lacks jurisdiction because of tribal sovereign immunity de novo. Maxwell v. Cnty. of San Diego, 708 F.3d 1075, 1081-82 (9th Cir.2013). We reverse and remand for jurisdictional discovery.

The district court correctly held that the FMLA does not abrogate tribal sovereign immunity. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 , 98 S.Ct. 1670 , 56 L.Ed.2d 106 (1978). Accordingly, Carsten’s claim against ITCN is barred if ITCN is an arm of a tribe acting on behalf of the tribe and therefore has tribal sovereign immunity. See White v. Univ. of Cal., 765 F.3d 1010, 1025 (9th Cir.2014) (“Tribal sovereign immunity not only protects tribes themselves, but also extends to arms of the tribe acting on behalf of the tribe.”). After the district court dismissed Carsten’s claim, this court issued its decision in White , which set out a test for determining whether an entity is an “arm of the tribe.” Id.…