NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 20 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN MCCOY, No. 18-35729

Plaintiff-Appellant, D.C. No. 9:17-cv-00088-DLC

v.

MEMORANDUM*

SALISH KOOTENAI COLLEGE, INC.,

DBA Salish Kootenai College,

Defendant-Appellee,

CONFEDERATED SALISH AND

KOOTENAI TRIBES OF THE

FLATHEAD RESERVATION,

Appellee-Intervenor.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Argued and Submitted October 25, 2019 Portland, Oregon

Before: FARRIS, BEA, and CHRISTEN, Circuit Judges.

Appellant Stephen McCoy appeals from the district court’s judgment

dismissing his Title VII and Montana Human Rights Act claims against Salish

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Kootenai College, Inc. (“the College”), his former employer, for lack of subject

matter jurisdiction. The district court concluded that the College was immune from

suit under the doctrine of tribal sovereign immunity because it qualified as an arm

of the Confederated Salish Kootenai Tribes of the Flathead Reservation (“CSKT”)—

an “Indian Tribe” exempted from the definition of “employer” in Title VII. We

review a district court’s determination that it lacks jurisdiction because of tribal

sovereign immunity de novo and its factual findings relevant to subject matter

jurisdiction for clear error. Maxwell v. Cty. of San Diego, 708 F.3d 1075, 1081–82

(9th Cir. 2013); Cook v. AVI Casino Enters., Inc., 548 F.3d 718, 722 (9th Cir. 2008).

We affirm.

The parties do not dispute that CSKT is an “Indian Tribe” expressly exempted

from the scope of Title VII’s definition of “employer.” See 42 U.S.C. § 2000e(b)

(stating that “Indian Tribes” are not “employers” under Title VII). Nor do the parties

dispute that an entity that functions as an arm of a tribe also “falls within the scope

of the Indian Tribe exemption of Title VII.” Pink v. Modoc Indian Health Project,

Inc., 157 F.3d 1185, 1187–88 (9th Cir. 1998). Thus, the only issue on appeal is

whether the College is an arm of CSKT that shares CSKT’s sovereign status.

To determine whether an entity is entitled to sovereign immunity as an “arm

of a tribe,” this circuit considers the following factors: “(1) the method of creation

of the economic entities; (2) their purpose; (3) their structure, ownership, and

2 management, including the amount of control the tribe has over the entities; (4) the

tribe’s intent with respect to the sharing of its sovereign immunity; and (5) the

financial relationship between the tribe and the entities.” White v. Univ. of Cal., 765

F.3d 1010, 1025 (9th Cir. 2014) (quoting Breakthrough Mgmt. Grp., Inc. v.

Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1187 (10th Cir. 2010)).

Applying the White factors, we conclude that only the first factor—the method

of creation factor—weighs against finding that the College is an arm of CSKT

because this action is against the Montana corporation, not the tribal corporation.

The four remaining White factors—which assess the College’s purpose; its structure,

ownership, and management, including the amount of control CSKT has over the

College; CSKT’s intent to extend its sovereign immunity to the College; and the

financial relationship between CSKT and the College—weigh in favor of immunity.

Even though the College is incorporated under Montana law, the record

demonstrates that CSKT has significant control over the College and that the College

is structured and operates for the benefit of CSKT. Because a proper weighing of

the White factors demonstrates, by a preponderance of the evidence, that the College

is an arm of CSKT, the College is entitled to tribal sovereign immunity.

AFFIRMED.

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