            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 01-30692
                                         Summary Calendar
                                         _______________



                                           KATY HINES,

                                                             Plaintiff-Appellee,

                                              VERSUS

                 GRAND CASINOS OF LOUISIANA, LLCSSTUNICA-BILOXI,

                                                             Defendant-Appellant.


                                   _________________________

                            Appeal from the United States District Court
                               for the Western District of Louisiana
                                  _________________________
                                         January 4, 2002


Before JONES, SMITH, and                             dismiss Katy Hines’s title VII claims. Grand
  EMILIO M. GARZA, Circuit Judges.                   Casinos argues that the district court erred in
                                                     concluding that Grand Casinos was Hines’s
JERRY E. SMITH, Circuit Judge:*                      employer, in failing to join the Tunica-Biloxi
                                                     Indian Tribe of Louisiana (“the Indian Tribe”)
  Grand Casinos of Louisiana, LLC (“Grand            as a necessary and indispensable party under
Casinos”), appeals a denial of its motion to         FED. R. CIV. P. 19(a), and in failing to dismiss
                                                     Hines’s claims because joinder of the Indian
                                                     Tribe is not feasible under FED. R. CIV. P.
   *
                                                     19(b). Finding no error, we affirm.
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
                                                                         I.
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.          Grand Casino Avoyelles is a gaming
47.5.4.                                              enterprise owned and operat ed by the Indian
Tribe pursuant to the Indian Gaming                   received a right to sue letter, and sued Grand
Regulatory Act, 25 U.S.C. § 2703. The Indian          Casinos. Grand Casinos argued that it was not
Tribe entered into a Management and                   Hines’s employer, so she had failed to state an
Construction Agreement (“the agreement”)              essential element of her title VII claim under
with Grand Casinos. The agreement declared            FED. R. CIV. P. 12(b)(6). Grand Casinos also
Grand Casinos solely responsible for “all             argued that the Indian Tribe was an
business and affairs in connection with               indispensable party under rule 19(b), and thus
financing, construction, improvement,                 Hines’s failure to name the Indian Tribe as a
development, and day-to-day operation,                defendant mandated dismissal under rule
management and maintenance.”             Grand        12(b)(7). While this motion was pending,
Casinos was assigned “exclusive responsibility        Hines filed employment discrimination claims
and authority to direct the selection, control        against Grand Casinos and the Indian Tribe in
and discharge of all personnel performing             tribal court.
regular services for the Enterprise,” including
the duty to perform background checks, draft              The district court treated the motion to dis-
personnel policies, design a job classification       miss as a motion for summary judgment, which
and salary system, and establish an employee          it denied. The district court and this court
grievance procedure.                                  granted leave to appeal the denial of the
                                                      motion under 28 U.S.C. § 1292(b).
    Grand Casino promised to provide a
security force “comprised of security officers                              III.
employed directly by the Tribe, or under a               Grand Casinos argues that the Indian Tribe,
third party and the Tribe, who shall report to        not Grand Casinos, was Hines’s employer, so
the General Manager.” The General Manager             the Indian the Tribe is an indispensable party.
is, in turn, selected by Grand Casinos and ap-        FED. R. CIV. P. 19(a). Because title VII does
proved by a tribal representative. The                not apply to Indian tribes, 42 U.S.C. § 2000e,
agreement contradicts itself as to who employs        joinder of the Indian Tribe is not feasible and
the General Manager, first stating that Grand         therefore, Grand Casinos argues, the suit
Casinos is the employer, but fourteen pages           should be dismissed. FED. R. CIV. P. 12(b)(7),
later stating that the Tribe is.                      19(b).

   Hines worked as a security officer at Grand           To determine whether a protected
Casino Avoyelles. She alleges that her                employment relationship exists under Title
supervisor, Patrick Laborde, made                     VII, we apply the “hybrid” common law con-
inappropriate sexual remarks to her; when she         trol/economic realities test. Mares v. Marsh,
complained, the casino retaliated against her         777 F.2d 1066 (5th Cir. 1985). “The right to
through more difficult work assignments and           control an employee’s conduct is the most
a demotion. Consequently, she suffered                important component of this test.”1 In evalu
medical problems, missed work, and was fired.

                   II.                                   1
                                                          Deal v. State Farm County Mut. Ins. Co., 5
  Hines filed a complaint with the Equal              F.3d 117, 119 (5th Cir. 1993); accord Fields v.
Employment Opportunity Commission,                    Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019
                                                                                           (continued...)

                                                  2
ating this component, we look to who has the                                    IV.
power to hire, fire, supervise, and set the work                                 A.
schedule for the employee. Deal, 5 F.3d at                     Grand Casinos argues that the federal and
119; Mares, 777 F.2d at 1068.                              tribal courts may render inconsistent
                                                           judgments as to who is Hines’s employer, and
    The agreement is unambiguous; Grand Ca-                the Indian Tribe should be joined to avoid this
sinos has total, nearly exclusive authority over           risk. This argument is meritless.
all perso nnel decisions. It hires and fires all
regular employees; it alone designs the                        There is nothing inconsistent in holding that
casino’s personnel policies, job classification            for purposes of title VII, Grand Casinos is
and salary system, and employee grievance                  Hines’ employer, but under certain tribal or
procedure; and it performs all employee                    state anti-discrimination laws, the Indian Tribe
background checks. The fact that the Indian                is her employer. Nor is there any risk of doub-
Tribe preserved a veto power over other hiring             le liability for the Indian Tribe. The agreement
decisions and imposed an Indian-preference re-             renders Grand Casinos solely liable for any
quirement for hiring does not alter our                    title VII judgment against it; the Indian Tribe
conclusion. See Fields, 906 F.2d at 1020;                  has no duty to indemnify.
Mares, 777 F.2d at 1068.
                                                                                  B.
   The Indian Tribe did pay Hines’s salary,                   Grand Casinos asserts that the Indian Tribe,
withhold her taxes, and provide her benefits,              as a party to the agreement, has an interest in
satisfying the economic realities component of             how the agreement is interpreted, and this
this test. See Deal, 5. F.3d at 119. The                   interest makes it an indispensable party. But,
common law control component is the crucial                Grand Casinos fails to articulate any concrete
factor, however; the economic component is                 effect from this title VII suit on the Indian
secondary. Thus, where one party exercises                 Tribe. Even if it could, such a weak, indirect
total control over hiring, firing, and                     interest would not be sufficient. The Indian
supervising an employee, it must be the                    Tribe cannot be joined as a defendant under
employer under title VII, regardless of whether            rule 19(a) unless Hines has a cause of action
a different party exercises economic control.              against it. See Vieux Carre Prop. Owners,
Accordingly, the district court was correct to             Residents & Assocs., Inc. v. Brown, 875 F.2d
conclude that Grand Casinos was Hines’s                    453, 457 (5th Cir. 1989). Title VII explicitly
employer.                                                  excludes Indian tribes from its scope, 42
                                                           U.S.C. § 2000e, and thus the Indian Tribe can-
                                                           not be joined.

   1                                                                               C.
     (...continued)
(5th Cir. 1990); see also Nowlin, 33 F.3d at 506
                                                               Grand Casinos contends that the Indian
(stating that “the right to control is an especially       Tribe has a “sovereign interest” in having this
crucial factor”); Mares, 777 F.2d at 1067 (opining         suit heard in tribal court. We disagree. Indian
that the hybrid test “focuses more on the extent of        tribes enjoy limited sovereignty. Although
the employer’s right to control the means and              they have retained certain inherent powers as
manner of the worker’s performance” (internal              sovereignsSSthe power to punish tribal
quotation marks omitted)).

                                                       3
offenders, to determine tribal membership, to
regulate domestic relationships among tribe
members, and prescribe rules of inheritance for
membersSSthey have been divested of nearly
all power to regulate relations with non-
members of the tribe. Montana v. United
States, 450 U.S. 544, 563 (1981). Only where
“necessary to protect tribal self-government or
to control internal relations” do they have sov-
ereign power over non-members. Id.

    Hines’s claim involves two nonmembers, a
federal (not tribal) statute, and no possibility of
liability for the Indian Tribe. Grand Casinos
has not even alleged that this suit implicates
the Indian Tribe’s self-government or internal
relations. Accordingly, the district court did
not err in concluding that the Indian Tribe is
not indispensable under rule 19.

                       V.
   Grand Casinos argues that the Hines is re-
quired to exhaust her remedies in tribal court
before the district court may hear them. As a
matter of comity, a federal court will not en-
join tribal court proceedings or rule on a tribal
court’s jurisdiction before tribal court remedies
are exhausted.2 None of these elements
applies to the instant suit, so the exhaustion
doctrine is inapposite.

   The order denying Grand Casinos’ motion
to dismiss is AFFIRMED. We express no
view on the ultimate merits of this case.




   2
    Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9,
15-16 (1987); Nat’l Farmers Union Ins. Cos. v.
Crow Tribe of Indians, 471 U.S. 845, 857 (1985).

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