Appeal from the United States District Courtfor the Eastern District of CaliforniaGarland E. Burrell, District Judge, PresidingSubmitted June 20, 1998*San Francisco, CaliforniaFiled October 6, 1998Before: Herbert Y. C. Choy, Joseph T. Sneed, andCharles Wiggins, Circuit Judges.Opinion by Judge Sneed
______________________COUNSEL Rosemarie Southcott Pink, Pro per, Denver, Colorado, for theplaintiff-appellant.Debora G. Luther, Assistant United States Attorney, Sacra-mento, California; Robert J. Logan, San Jose, California, forthe defendants-appellees.
_____________________________OPINION SNEED, Circuit Judge:Rosemarie Pink ("Pink") appeals the district court's judg-ment dismissing her Complaint for lack of subject matterjurisdiction. Pink brought suit against the Modoc IndianHealth Project, Inc. ("Modoc") (her former employer), ErinForrest ("Forrest") (her former supervisor), and Indian HealthServices ("IHS") (a federal agency), seeking damages for sex-ual harassment, gender, race, and national origin discrimina-tion, and wrongful termination. We review de novo thedistrict court's dismissal for lack of subject matter jurisdic-tion, see Mobil Oil Corp. v. City of Long Beach, 772 F.2d534, 538 (9th Cir. 1985), and affirm.I.FACTSModoc is a nonprofit corporation created and controlled bythe Alturas and Cedarville Rancherias, both federally recog-nized tribes. Modoc was "organized for charitable, educa-tional, and scientific purposes and such other related purposes. . . relative to the delivery of certain services pursuant to [theIndian Self-Determination Act]." IHS, an agency of theUnited States Department of Health and Human Services,awarded Modoc an Indian self-determination contract to pro-vide health services to tribe members. See 25 U.S.C. S 1661.Pink, a Native American, was hired by Modoc in Novem-ber 1983 as the coordinator of the Indian Child Welfare ActProgram. Pink alleged that from July 1991 until her termina-tion in October 1993, her former supervisor Forrest subjectedher to sexual harassment, sexual assault and a hostile work-place environment. Pink brought suit under federal and statelaw in tort, for employment discrimination and breach ofcontract.1The district court dismissed Pink's Complaint on severalgrounds. First, the court concluded that it lacked subject mat-ter jurisdiction to hear Pink's suit under 28 U.S.C.S 1346against IHS, a federal agency. Second, the court refused toallow Pink to substitute the United States as a defendantbecause Congress did not waive sovereign immunity toinclude the class of claims raised by Pink. Third, the courtconcluded that Modoc is a "tribe" for purposes of Title VII ofthe Civil Rights Act of 1964, and as such, is exempt from lia-bility under Title VII. Fourth, the court held that Modoc didnot lose its immunity merely because the Indian Self-Determination and Education Assistance Act ("ISDEAA")contract was performed outside of reservation premises. Fifth,the court refused to impose Title VII liability against Forrestbecause a Title VII claim cannot be brought against an indi-vidual employee supervisor. Pink timely appealed pro se thedistrict court's dismissal for lack of subject matter jurisdiction.2II.DISCUSSION A. Indian Health Services[1] Pink contends that the district court erred by dismissingher claims against Indian Health Services ("IHS"). This con-tention lacks merit. Federal agencies "cannot be sued eonomine unless so authorized by Congress in explicitlanguage." Shelton v. United States Customs Serv., 565 F.2d1140, 1141 (9th Cir. 1977) (per curiam). Congress did notexpressly authorize suits against federal agencies under theFederal Tort Claims Act. See Allen v. Veterans Admin., 749F.2d 1386, 1388 (9th Cir. 1984). The district court thereforeproperly dismissed Pink's claims against IHS.B. Amendment to Substitute the United States [2] Pink's proposed amendment to substitute the UnitedStates would have been futile because Congress did not waivesovereign immunity. See 28 U.S.C. S 2680(h). Further, Pinkconceded that she had no claim against the United States inde-pendent of her claims against Modoc and Forrest. Accord-ingly, the district court properly rejected Pink's amendment.See Stock West, Inc. v. Confederated Tribes of the ColvilleReservation, 873 F.2d 1221, 1225 (9th Cir. 1989).C. Title VIIPink also argues that the district court erred by dismissingher claims against Modoc under Title VII because Modoc isnot a "tribe" as defined by the Act. We disagree.[3] Title VII prohibits employers from engaging in discrim-inatory practices. Congress, however, exempted "Indiantribe[s]" from the scope of the definition of "employer" asused in Title VII. See 42 U.S.C. S 2000e(b).Although the Ninth Circuit has not specifically addressedwhether a nonprofit organization incorporated by two Indiantribes is a "tribe" for purposes of Title VII exemption, theTenth Circuit has addressed a similar question. In Dille v.Council of Energy Resource Tribes, 801 F.2d 373 (10th Cir.1986), the court held that a council comprised of thirty-nineIndian tribes that had joined together to collectively manageenergy resources was a "tribe" within the scope of Title VII'sIndian tribe exemption. The Dille Court held that Congressintended to exempt individual Indian tribes as well ascollective efforts by Indian tribes. The court reasoned that thepurpose of the tribal exemption, like the purpose of sovereignimmunity itself, was to promote the ability of Indian tribes tocontrol their own enterprises. See Dille, 801 F.2d at 375-76;see also Wardle v. Ute Indian Tribe, 623 F.2d 670, 672 (10thCir. 1980) ("Indian tribes and businesses operating on or nearIndian reservations are excluded from the employment prohi-bitions of Title VII.").[4] Here, Modoc served as an arm of the sovereign tribes,acting as more than a mere business. Modoc's board of direc-tors consisted of two representatives from each Rancheriatribal government. Like the collection of tribes in Dille,Modoc was organized to control a collective enterprise andtherefore falls within the scope of the Indian Tribe exemptionof Title VII. See 42 U.S.C. S 2000e(b); see also Dille, 801F.2d at 375-76. The district court properly concluded thatPink could not bring suit against Modoc under Title VII.D. ISDEAAPink also contends that the district court erred by holdingthat the ISDEAA did not confer it subject matter jurisdiction.Pink is incorrect.[5] Congress sought to achieve essentially the same goalwhen it enacted the ISDEAA as when it excluded "tribes"from the operation of Title VII. Both the ISDEAA and theTitle VII "tribe" exemption attempt to aid tribal entities intheir efforts to conduct their own affairs and economic activi-ties with as much autonomy as possible. See Dille, 801 F.2dat 374. Accordingly, the ISDEAA states, "[n]othing in thisAct shall be construed as affecting, modifying, diminishing,or otherwise impairing the sovereign immunity from suitenjoyed by an Indian tribe." 25 U.S.C. S 450n(1). Because theISDEAA does not effect tribal sovereign immunity, the dis-trict court was correct in holding that the ISDEAA could notconfer subject matter jurisdiction.[6] Pink additionally contends that Modoc waived itsimmunity because the alleged misconduct occurred outside ofthe reservation land. We disagree. Congress did not limit thescope of tribal immunity, as such, the tribes retain the extra-territorial component of sovereign immunity. See Richardsonv. Mt. Adams Furniture (In re Greene), 980 F.2d 590, 596(9th Cir. 1992); see also 25 U.S.C. S 450n (stating that noth-ing in the ISDEAA shall be construed as waiving a tribe'ssovereign immunity). Thus, Modoc did not lose its exemptionsimply because it performed the self-determination contractfor health services off the reservation. See In re Greene, 980F.2d at 596.E. Individual LiabilityPink contends that the district court erred by dismissing heremployment discrimination claims against Forrest becauseTitle VII imposes individual liability. We disagree.[7] Assuming arguendo that Modoc's immunity did notextend to Forrest, civil liability for employment discrimina-tion does not extend to individual agents of the employer whocommitted the violations, even if that agent is a supervisoryemployee. See Miller v. Maxwell's Int'l Inc., 991 F.2d 583,587-88 (9th Cir. 1993). The district court therefore properlydismissed Pink's employment discrimination claims againstForrest, a Modoc employee.F. Indian Civil Rights Act[8] Pink additionally contends that the district court's dis-missal violates her right to due process under the Indian CivilRights Act ("ICRA"), 25 U.S.C. S 1301. Pink is incorrect.ICRA only provides a basis for an individual to bring ahabeas corpus civil claim. See Santa Clara Pueblo v. Marti-nez,
436 U.S. 49, 59
(1978); R.J. Williams Co. v. FortBelknap Housing Auth., 719 F.2d 979, 981 (9th Cir. 1983).This court therefore rejects Pink's contention, raised for thefirst time on appeal, that her due process rights under ICRAwere violated. Cf. Barker v. Menominee Nation Casino, 897F. Supp. 389, 394-95 (E.D. Wis. 1995) (holding that formeremployee of Indian casino could not sue for any allegedbreach of due process rights under ICRA).3 G. Leave to AmendPink contends that the district court erred by denying herleave to amend her complaint. This contention lacks merit.[9] This court reviews a denial of leave to amend for abuseof discretion. See DCD Programs, Ltd. v. Leighton, 833 F.2d183, 185-86 (9th Cir. 1987). A district court properly deniesa party's request for leave to amend if such leave would befutile. See id. at 186. Here, the district court denied Pink'srequest for leave to amend because the alleged facts, even iftrue, provided no basis for subject matter jurisdiction. Thedistrict court did not abuse its discretion by denying leave toamend on that basis. See id.In sum, we find that the district court did not err in its dis-missal of Pink's claims for lack of subject matter jurisdiction.AFFIRMED.
___________________________FOOTNOTES 1 Specifically, Pink alleged eleven causes of action in her secondamended complaint: (1) breach of contract (v. IHS, Modoc); (2) bad faith(v. IHS, Modoc); intentional misrepresentation (v. IHS, Modoc, Forrest);(3) negligent misrepresentation (v. IHS, Modoc, Forrest); (5) intentionalinterference with business relations (v. Forrest); (6) negligence (v. IHS,Modoc, Forrest); (7) race and national origin discrimination under TitleVII and FEHA (v. IHS, Modoc, Forrest); (8) sexual harassment and hostilework environment under FEHA only (v. IHS, Modoc, Forrest); (9) retalia-tory discharge in violation of public policy under the California constitu-tion and "U.S. Const. (Title VII)" (v. IHS, Modoc, Forrest); (10)intentional infliction of emotional distress (v. IHS, Modoc, Forrest); and(11) assault and battery (v. IHS, Modoc, Forrest). At the hearing, Pinkwithdrew her seventh cause of action under Title VII against IHS.2 Pink was represented by counsel in the district court.3 Only the tribal judiciary and legislature would be subject to liability infederal court under ICRA. See Barker, 897 F. Supp. at 395. Because Pinkdid not allege that she first challenged her termination in tribal court, noviolation of Pink's civil rights under ICRA has occurred. See id. the end