Key Holdings at a Glance

• A tribal constitution’s generic promise not to conflict with applicable federal law is not a “clear” or “unequivocal” waiver of tribal sovereign immunity.
• When a tribe’s own law requires waivers to be made by “formal, written resolution” of its council, courts will enforce that pathway; no waiver exists absent compliance.
• A statute’s substantive applicability to a tribe (here, the FLSA) is distinct from the tribe’s amenability to suit under a private right of action; the latter remains barred without clear waiver or congressional abrogation.
• Dismissal for lack of subject-matter jurisdiction affirmed; claims dismissed without prejudice.

Introduction

This published Sixth Circuit decision addresses whether the Hannahville Indian Community (HIC) waived tribal sovereign immunity in a federal employment case brought by a former restaurant employee at the Island Resort & Casino, a tribal enterprise. After the employee, Alexandria Parrotta, alleged she was pressured to resign rather than be accommodated as a new mother and filed Fair Labor Standards Act (FLSA) and related state-law claims, the district court dismissed, holding that HIC’s sovereign immunity barred the suit.

On appeal, Parrotta argued the tribe waived immunity through its tribal constitution, which pledges the Tribal Council will not exercise powers in conflict with applicable federal law. The Sixth Circuit rejected that argument and affirmed, holding that generalized commitments to follow federal law do not constitute a clear waiver of sovereign immunity, and that HIC’s Tribal Sovereign Immunity Code requires a formal written council resolution to waive immunity—none existed here. The court further emphasized the doctrinal distinction between a statute’s applicability to a tribe and the tribe’s suability under a private cause of action.

Summary of the Opinion

• Standard and burden: Reviewing de novo, the court held Parrotta bore the burden to establish subject-matter jurisdiction in the face of the tribe’s sovereign immunity defense.
• No clear waiver in constitution: The HIC Constitution’s statement that the council will not act contrary to applicable federal law is a general compliance promise, not an explicit consent to be sued. It lacks the specificity (as to forum, governing law, and process) that courts require for a clear waiver.
• Tribal law controls the waiver mechanism: HIC’s Sovereign Immunity Code requires any waiver to be by “formal, written resolution of the Tribal Council.” No such resolution was identified, and the constitution cannot itself serve as a council resolution because the constitution creates the council rather than emanating from it.
• Applicability vs. amenability: The court underscored that the FLSA may apply to a tribe as a statute of general applicability, yet the tribe can still be immune from private suit to enforce those obligations absent waiver or congressional abrogation. The court noted non-judicial avenues for relief (the briefs referenced administrative routes).
• Outcome: Because no waiver was shown, the Sixth Circuit affirmed dismissal without prejudice for lack of subject-matter jurisdiction and did not reach other arguments.

Analysis

Precedents Cited and Their Role

• Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998): The Supreme Court described it as “settled law” that tribes enjoy sovereign immunity from suit unless waived or abrogated. This case continues to anchor the doctrine and dispels distinctions between on/off-reservation or commercial/governmental activities for immunity purposes.
• Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), and Oklahoma Tax Commission v. Citizen Band Potawatomi Tribe of Oklahoma, 498 U.S. 505 (1991): These decisions reiterate that only a clear tribal waiver or unequivocal congressional abrogation can overcome immunity. The Sixth Circuit applied that high threshold here.
• C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001): The Supreme Court found a clear waiver where a tribe agreed by contract to arbitrate disputes and to enforcement in specified courts under identified law. The Sixth Circuit contrasted HIC’s generic constitutional provision with C & L’s specificity regarding forum, governing law, and enforcement, holding the former falls short.
• Florida Paraplegic Association v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999): This case articulates the crucial distinction the Sixth Circuit emphasized—being subject to a statute is different from being amenable to suit for its violation.
• Miller v. Wright, 705 F.3d 919 (9th Cir. 2013); Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282 (11th Cir. 2001); Dillon v. Yankton Sioux Tribe Housing Authority, 144 F.3d 581 (8th Cir. 1998); Seneca v. Great Lakes Inter-Tribal Council, Inc., No. 22-2271, 2023 WL 4340699 (7th Cir. July 5, 2023): These authorities stand for the proposition that general commitments to comply with federal or funding conditions do not waive immunity. The Sixth Circuit aligned with this cross-circuit consensus.
• Nanomantube v. Kickapoo Tribe in Kansas, 631 F.3d 1150 (10th Cir. 2011); Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006): Courts have rejected arguments that employee handbooks or general employment policies referencing federal law amount to waiver. The Sixth Circuit analogized HIC’s constitutional language to these insufficient statements.
• Ladd v. Marchbanks, 971 F.3d 574 (6th Cir. 2020): Cited for the standard of review and for the plaintiff’s burden to establish jurisdiction when immunity is invoked.

Legal Reasoning

The court proceeded from bedrock principles: tribal sovereign immunity bars suits unless either the tribe clearly waives immunity or Congress unmistakably abrogates it. Parrotta argued waiver only and tethered that argument to one sentence in the HIC Constitution committing the Tribal Council not to exercise powers in conflict with applicable federal law.

The Sixth Circuit rejected that argument on multiple grounds:

• Clarity requirement: Waiver must be “clear” and “unequivocal.” The HIC Constitution’s general compliance promise lacks any explicit consent to suit, does not identify forums, governing law, or enforcement mechanisms, and therefore does not meet the exacting standard. By contrast, C & L Enterprises demonstrates what clarity looks like: a contract expressly providing for arbitration and judicial enforcement.
• Consistency with sister circuits: Courts routinely treat similar provisions in grant conditions, policy manuals, or handbooks as promises to comply with the law—not as waivers of immunity. The Sixth Circuit observed that Parrotta cited no authority to the contrary and found none.
• Tribal law governs the method of waiver: The HIC Tribal Sovereign Immunity Code requires waiver by “formal, written resolution of the Tribal Council.” No such resolution was presented. The argument that the constitution itself is a council resolution failed because the constitution creates the council; it is not a resolution enacted by it. Even if it were, the language still would not amount to a clear waiver.
• Applicability versus amenability: The court underscored that the FLSA may apply to the tribe without authorizing a private suit against the tribe. The appellee’s briefing suggested administrative avenues for relief (the opinion references “like filing a complaint with the NLRB” as an example of a non-judicial mechanism), underscoring that the enforcement question is separate from a private party’s ability to hale the tribe into court.

Because no waiver was shown and no congressional abrogation was argued, the court affirmed dismissal without prejudice for lack of subject-matter jurisdiction and declined to reach ancillary arguments.

Impact and Implications

• Clarifies waiver standards in the Sixth Circuit: This published decision cements that general “we will follow federal law” clauses—whether in constitutions, policies, or grant agreements—do not waive sovereign immunity. Parties seeking to overcome immunity must identify a waiver that is explicit, specific, and compliant with the tribe’s own waiver procedures.
• Elevated role for tribal law: Litigants must consult and respect tribal sovereign immunity codes and constitutions. Where those codes require a formal council resolution, no waiver exists unless and until that procedure is followed.
• Employment and labor litigation against tribal enterprises: Although statutes like the FLSA may substantively apply to tribal employers, private suits against tribal entities remain barred absent waiver or abrogation. Employees may need to pursue administrative enforcement or remedies in tribal forums, depending on tribal law and federal agency jurisdiction. (As a practical note, FLSA enforcement commonly proceeds through the U.S. Department of Labor’s Wage and Hour Division; the opinion’s reference to the NLRB underscores the broader point about non-judicial avenues.)
• Contracting and risk allocation: Non-tribal counterparties and employees who want judicial recourse must secure explicit waivers in contracts or policies—often by arbitration clauses with court-enforcement provisions or by consent-to-suit clauses identifying forum and governing law. Absent such provisions, litigation in state or federal court will likely fail at the threshold.
• Alignment with nationwide trends: The Sixth Circuit’s approach aligns with other circuits that distinguish compliance undertakings from true waivers. The decision thus contributes to a uniform national doctrine requiring specificity for waiver.

Complex Concepts Simplified

• Tribal sovereign immunity: A doctrine under federal common law that protects federally recognized Indian tribes and their arms (like tribally owned enterprises) from being sued in federal or state court unless the tribe consents (waiver) or Congress clearly authorizes suits (abrogation).
• Clear waiver: The tribe must unmistakably express its consent to be sued—typically by specifying the forum, governing law, and means of enforcement. Vague or general statements about obeying the law are not enough.
• Congressional abrogation: Congress can remove immunity, but only by an unequivocal statement. If Congress is silent or ambiguous, immunity remains.
• Statutory applicability versus amenability to suit: A statute can bind a tribe substantively (the tribe must comply) without authorizing private lawsuits against the tribe to enforce it. Administrative enforcement or tribal-court remedies may still be available.
• Formal resolution requirement: Many tribes codify how immunity can be waived (e.g., a tribal council’s formal written resolution). Courts will look to and enforce these internal rules.
• Dismissal without prejudice for lack of subject-matter jurisdiction: The court did not decide the merits; it concluded only that the court lacks power to hear the case against the tribe in the absence of a valid waiver or abrogation. The plaintiff may pursue other avenues consistent with law.

Conclusion

The Sixth Circuit’s decision in Parrotta v. Island Resort & Casino reinforces a stringent, clarity-driven approach to tribal sovereign immunity waivers. A tribal constitution’s generic promise to comply with federal law does not consent to suit. When tribal law prescribes a specific mechanism for waiving immunity—here, a formal written council resolution—courts will require strict adherence. And the court reaffirms the vital doctrinal separation between a federal statute’s substantive reach and the distinct question whether a private party can sue a tribe to enforce it.

For practitioners, the message is unambiguous: to overcome tribal sovereign immunity, identify an express waiver that satisfies the tribe’s own procedural requirements and that clearly designates the law, forum, and enforceability of any judgment or award. For employees and regulators, the decision points toward administrative enforcement or tribal forums rather than private federal litigation, unless and until such a waiver is secured or Congress unmistakably abrogates immunity for the claim at issue.