                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                              FILED
                            FOR THE ELEVENTH CIRCUIT                 U.S. COURT OF APPEALS
                             ________________________                  ELEVENTH CIRCUIT
                                                                          AUGUST 15, 2001
                                                                        THOMAS K. KAHN
                                     No. 00-12280                            CLERK
                               ________________________

                          D.C. Docket No. 98-00136-CV-D-N

MICHELE C. TAYLOR,

                                                                   Plaintiff-Appellant,

       versus

ALABAMA INTERTRIBAL COUNCIL
TITLE IV J.T.P.A.,
CHARLOTTE STEWART, Board Member,
et al.,

                                                                   Defendants-Appellees.

                             __________________________

                  Appeal from the United States District Court for the
                             Middle District of Alabama
                            _________________________

                                        (July 9, 2001)

Before CARNES and MARCUS, Circuit Judges, and PROPST*, District Judge.



       *
         Honorable Robert B. Propst, U.S. District Judge for the Northern District of Alabama,
sitting by designation.
PER CURIAM:

        Michele C. Taylor, acting pro se, appeals from the district court order

entering summary judgment on her 42 U.S.C. § 1981 employment discrimination

claim in favor of her employer, the Alabama Intertribal Council Title IV J.T.P.A.

(“AIC”) and two AIC Board Members, Charlotte Stewart and Ron Etheridge. In

accordance with Goodman v. Lukens Steel Company, the district court ruled that

Taylor’s § 1981 claim was time barred under Alabama’s two-year statute of

limitations for personal injury actions. See 482 U.S. 656, 660-62 (1987)

(explaining that since § 1981 claims have no statute of limitations courts should

apply the statute of limitations available under state law in their jurisdictions for

personal injury actions). Taylor’s primary argument on appeal is that the statute of

limitations on her §1981 claim has not run because the claim is governed by the

four year statute of limitations under 28 U.S.C. § 1658.2 We need not address


       2
         28 U.S.C. § 1658 provides that all claims created by federal statute subsequent to 1990
that do not contain a statute of limitations are governed by the default four year statute of
limitations created under § 1658. In this Circuit, one court has held that the Congressional
amendments made to § 1981 in 1991, allowing plaintiffs to bring employment discrimination
claims under this section, were sufficient to establish that § 1981 employment discrimination
claims have a four year statute of limitations period. Nealey v. Univ. Health Serv. Inc., 114 F.
Supp. 2d 1358, 1364-66 (S.D. Ga. 2000). Another court has held that § 1658 does not apply to
any § 1981 claim because the statute was passed in 1870, and § 1658 only applies to newly
created statutes passed after 1990. Lane v. Ogden Entertainment Inc., 13 F. Supp. 2d 1261,
1268-70 (M.D. Ala. 1998). Instead, the district court explained that § 1981 employment
discrimination claims are governed by each jurisdiction’s state law statute of limitations for
personal injury actions, as explained in Goodman, 482 U.S. at 660.

                                                2
whether the statute of limitations under § 1658 applies to Taylor’s § 1981 claim,

because we conclude that Taylor’s action must be dismissed as barred by Indian

sovereign immunity.3

       We review a district court order granting summary judgment de novo, Raney

v. Vinson Guard Serv. Inc., 120 F.3d 1192, 1196 (11th Cir. 1997), and when

necessary will sua sponte conduct an inquiry into whether a party enjoys Indian

sovereign immunity, as this consideration determines whether a court has

jurisdiction to hear an action. See Suarez Corp. Industries v. McGraw, 125 F.3d

222, 227 (4th Cir.1997) (recognizing obligation of sua sponte review on sovereign

immunity issues); Sanderlin v. Seminole Tribe of Florida, 242 F.3d 1282, 1285

(11th Cir. 20001) (recognizing sovereign immunity inquiry as part of subject

matter jurisdiction analysis).


       Indian sovereign immunity is a unique legal concept and, unlike state

Eleventh Amendment immunity, it can be more freely limited by Congressional

enactment. Sanderlin, 242 F.3d at 1285. Therefore, as we recognized in Florida

Paraplegic Association Incorporated v. Miccosukee Tribe of Indians of Florida, a



       3
          Inexplicably, counsel for the tribe never raised the defense of Indian sovereign
immunity in any of the earlier proceedings in this case, despite the fact that the EEOC indicated
that immunity applied, and countless precedents indicate that Indian sovereign immunity bars
race discrimination in employment claims for intramural tribal employment decisions.

                                                 3
Congressional statute of general applicability presumptively applies to Indian tribes

absent some clear indication that Congress did not intend for tribes to be subject to

the legislation. 166 F.3d 1126 (11th Cir. 1999) (citing Federal Power Comm'n v.

Tuscarora Indian Nation, 362 U.S. 99 (1960)). Review of the cases on Indian

sovereign immunity shows that courts will only rule that a generally applicable

statute does not govern an Indian tribe when the statute would “(1) abrogate rights

guaranteed under an Indian treaty, (2) interfere with purely intramural matters

touching [on an Indian tribe’s] exclusive rights of self-government, or (3) contradict

Congress’s intent.”4 Id. The AIC has not suggested that any treaty right is at issue

in this case; therefore, we review Taylor’s § 1981 claim to determine whether

permitting the AIC to be sued under this statute would run contrary to Congress’s

intent, or would infringe on the tribal organization’s “exclusive rights of self-

governance in purely intramural matters.” Id.

       We begin with an inquiry into Congressional intent. Section 1981 was

passed in 1870, in the aftermath of the Civil War; therefore, it does not address the

conception of Indian sovereign immunity that is recognized in modern precedent.

Also, Congress’s 1991 amendments to § 1981 and the amendments’ legislative


       4
         An entity entitled to Indian sovereignty may waive this privilege and consent to suit.
However, this consideration has no bearing on the instant case, as there is no indication in the
record that AIC has waived its immunity.

                                                 4
history fail to address this issue. However, we need not adopt an overly technical

understanding of the claim at issue in this case, as Taylor’s § 1981 claim, in

substance, is a disparate treatment employment discrimination claim and, in its

discussions of Title VII, Congress has explicitly indicated that it does not intend for

Indian tribes to be subject to disparate treatment employment discrimination suits

for Indian tribe-based employment. See, e.g., Dawavendewa v. Salt River Project

Agric. Improvement and Power Dist., (9th Cir. 1998) (recognizing same); Pink v.

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

Specifically, Congress expressly exempts Indian tribes from the definition of

employer under Title VII, and indicates that Indian tribal preference programs

cannot serve as the basis for Title VII race discrimination claims. See 42 U.S.C. §

2000e-(b) & e-(b)(2)(i). In our view, it would be wholly illogical to allow plaintiffs

to circumvent the Title VII bar against race discrimination claims based on a tribe’s

Indian employment preference programs simply by allowing a plaintiff to style his

claim as § 1981 suit. Ferrill v. The Parker Group, 168 F.3d 468 (11th Cir. 1999)

(explaining that § 1981 race based claims of disparate treatment are governed by the

same analysis used for Title VII disparate treatment claims). See Wardle v. Ute

Indian Tribe, 623 F.2d 670, 673 (10th Cir. 1980) (dismissing § 1981 and § 1985

claim against tribal employer based on same facts as Title VII claim). Thus, we


                                           5
conclude that permitting Taylor to bring a § 1981 claim against AIC for race

discrimination would contradict Congressional intent.

      Moreover, Taylor’s employment discrimination claim against the tribe by is

also precluded by Indian tribes’ strong interest in self government. In Morton v.

Mancari, 417 U.S. 435, 551-555 (1974), the Supreme Court recognized that an

Indian tribe’s strong interest in internal self government prevents parties from

raising employment discrimination claims alleging injury from the use of Indian

preferences for jobs administrating Indian affairs. Specifically, in Morton,

petitioner brought a due process claim charging the Bureau of Indian Affairs (BIA)

with race discrimination for its policies preferring Indians for BIA positions. The

Court explained that the BIA’s Indian preference program did not constitute race

discrimination because it was a political program, designed to promote Indian self

governance. Id. Since that time, courts have held that, absent some evidence of

Congress’s “clear and plain intent” to abrogate a tribe’s sovereign immunity, they

will not interpret federal employment discrimination statutes to cover Indian tribes’

employment decisions for tribal or reservation based positions concerning purely

tribal governance and administrative matters. EEOC v. Fond du Lac Heavy Equip.

and Constr. Co., 986 F.2d 246 (8th Cir. 1993) (holding that tribe member did not

have an ADEA claim against a tribe employer because the ADEA did not show

                                          6
Congress’s “clear and unmistakable intent” to abrogate the tribe’s sovereign

immunity from suit in this area of internal tribal relations); EEOC v. Cherokee

Nation, 871 F.2d 937 (10th Cir. 1989) (holding same in context of non-tribe

member’s ADEA suit). As explained above, nothing in § 1981 supports the

proposition that Congress intended to abrogate tribes’ immunity and permit private

parties to bring employment discrimination claims against them for intramural tribal

employment decisions.

      We recognize that the AIC is an intertribal council as opposed to a “tribe,”

and this difference might give some pause in extending to the AIC the same

protection against employment discrimination actions as provided to tribes.

However, several courts have recognized that Congress intended to protect group

activities between tribes as well as individual tribes when it created the Indian tribe

exceptions under Title VII. See Pink v. Modoc Indian Health Project, 157 F.3d

1185 (9th Cir. 1998) (holding that corporation whose Board was composed of two

representative tribe members constituted tribe under Title VII tribal exemption);

Dille v. Council of Energy Resource Tribes, 801 F.2d 373 (10th Cir. 1986)(holding

that council composed of thirty nine Indian tribes which managed energy resources




                                           7
entitled to Title VII tribal exemption).5 AIC is an intertribal consortium, with a

Board dominated by tribal chiefs and tribe members, organized to promote business

opportunities for and between the tribes; as such, we conclude that it is entitled to

the same protections as a tribe itself.

       Also, we recognize that the complaint names two AIC board members as

individuals, and therefore might be interpreted to raise claims under Ex Parte

Young against these individuals. See Tamiami Partners, Ltd. v. Miccosukee Tribe

of Indians of Florida, 63 F.3d 1030, 1050 (11th Cir. 1995) (permitting Ex Parte

Young claim against members of tribal organization). However, a review of the

claim shows that the action has been brought against the board members in their

official capacity, as there is no question that the AIC is the real party of interest in

this action: any judgment paid by the individual board members would be drawn

from the AIC fisc, and any equitable and injunctive relief provided (such as

reinstatement) would conflict with the AIC’s right to hire persons in accordance

with its desire to promote Indian self government. cf. ACLU v. Finch, 638 F.2d




       5
         Also persuasive, the EEOC and the district court concluded that Taylor had no claim
against the AIC under Title VII because the AIC was entitled to the tribal employer exceptions
under Title VII.

                                                8
1336, 1341-42 (11th Cir. 1981) (discussing principles in context of state sovereign

immunity).6

       Therefore, we conclude that Taylor’s claim against the AIC, and the

individual board members should have been dismissed, as Indian sovereign

immunity protects them from claims alleging race discrimination against non-Indian

employees in favor of Indian employees when the employment concerns tribal self

governance, reservation administration and other intramural Indian matters.

       AFFIRMED.




       6
         In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of
business on September 30, 1981.

                                                9
