10 NICS App. 20, MATHESON AND LANPHERE v. WRIGHT (April 2011)
IN THE PUYALLUP TRIBAL COURT OF APPEALS
PUYALLUP INDIAN RESERVATION
TACOMA, WASHINGTON
Paul M. Matheson and Amber Lanphere, Plaintiffs/Appellants,
v.
Chad R. Wright, Cigarette Tax Department, and the Puyallup Tribe of Indians, Defendants/Appellees.
NO. PUY-CV- 06-974 (April 29, 2011)
(Reconsideration denied June 6, 2011)
SYLLABUS*
Tribally-licensed cigarette retailer and non-Indian customer brought suit challenging an agreement between the Tribe and the State of Washington, and taxes and regulations enacted by the Tribe thereunder, concerning the sale and taxation of cigarette sales by Tribal members and licensees. Trial court dismissed the suit, holding that the Tribe, its Cigarette Tax Department, and the Tax Department Director are immune from suit. Trial court ruling affirmed.
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Robert E. Kovacevich, Attorney for Appellants Paul M. Matheson and Amber Lanphere; John Howard Bell, Attorney for Appellees Puyallup Tribe of Indians and Chad R. Wright. |
OPINION
Silverman, J.:
INTRODUCTION
Appellant Mr. Paul Matheson, an enrolled member of the Puyallup Tribe of Indians and a Tribally-licensed retailer of cigarettes on Tribal land, and appellant Ms. Amber Lanphere, a non-Indian purchaser of cigarettes from Mr. Matheson, filed the present action against the Puyallup Tribe of Indians (“the Tribe”) and Mr. Chad Wright, the Cigarette Tax Administrator of the
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Tribe, claiming, inter alia, (1) that the Tribe may not legally impose a cigarette tax on non-Indian purchasers, (2) that the Cigarette Tax Agreement (“the Agreement”) entered into by the Tribe and the State of Washington (“the State”) is illegal, (3) that the Tribe may not legally require Indian cigarette retailers to purchase cigarettes only from wholesalers who comply with Washington State law and the State “Master Settlement Agreement”, and (4) that the Tribe may not legally set a minimum price for the sale of cigarettes by Puyallup Indian retailers. The remedies sought by the appellants through this lawsuit include damages, prospective injunctive relief and declaratory judgments. The court below dismissed the lawsuit on the grounds that both the Tribe and Mr. Wright were immune from suit under the doctrine of tribal sovereign immunity. Appellants then filed the present appeal, arguing that it was error for the court below to dismiss the lawsuit.
THE TRIBE’S ASSERTION OF SOVEREIGN IMMUNITY
“Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 759 (1998), the United States Supreme Court reaffirmed its prior holdings that “[a]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Id. at 754. The Court also noted that “our cases have sustained tribal immunity from suit without drawing a distinction based on where the tribal activities occurred”—whether on or off the reservation—and without drawing “a distinction between governmental and commercial activities of a tribe.” In addition, the United States Court of Appeals for the Ninth Circuit has recognized that “when tribal officials act in their official capacity and within the scope of their authority, they are immune” from suit as well. Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269, 1271 (9th Cir. 1991); United States v. Oregon, 657 F.2d 1009, 1012 n.8 (9th Cir. 1981); Snow v. Quinault Indian Nation, 709 F.2d 1319, 1321 (9th Cir. 1983), cert. denied, 467 U.S. 1214 (1984).
The Puyallup Tribe of Indians is a federally recognized Indian tribe. Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 170n.7 (1977)(The Puyallup Tribe of Indians “is clearly recognized as such by the United States.”); The Department of Game et al., Respondents, v. The Puyallup Tribe, Inc., et al., 70 Wn.2d 245, 422 P.2d 754 (1967)(“[T]he United States government, through its appropriate agencies, continues to recognize the existence of the Puyallup Tribe of Indians and its tribal roll.”). As such, the Tribe enjoys a general immunity from suit under the doctrine of tribal sovereign immunity.
If, then, the lower court committed error in dismissing the action, it must be the case that either the Congress of the United States has abrogated an Indian tribe’s sovereign immunity in lawsuits of this kind or the Tribe itself has consented to be sued by waiving its immunity. Regarding the former alternative, the Appellants have not cited to this Court, nor is the Court aware of, any federal statute divesting the Tribe of sovereign immunity from the present lawsuit.
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Quite to the contrary, existing Supreme Court precedent upholding tribal sovereign immunity in cases involving taxation of cigarettes on tribal lands suggests that no such federal statutes exist. In Oklahoma Tax Comm'n v. Citizen Band of Potawatomi Tribe of Oklahoma, 498 U.S. 505 (1991), for example, the Supreme Court sustained tribal sovereign immunity from a tax enforcement action brought by the State of Oklahoma demanding payment of state taxes on cigarette sales to non-Indian purchasers in Indian country.
In the absence of a federal statute abrogating a tribe’s sovereign immunity, a tribe is immune from suit unless it consents to be sued by waiving its immunity. A tribe “can waive immunity by tribal law or by contract as long as it is ‘clearly’ done.” Cohen’s Handbook of Federal Indian Law § 7.05 (2009). It is settled law that “a waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978), citing United States v. Testan, 424 U.S. 392, 399 (1976), quoting United States v. King, 395 U.S. 1, 4 (1969). The Appellants have not cited to this Court, nor is this Court aware of, any Tribal law through which the Tribe has waived its immunity from the present suit. The Appellants argue instead that the Tribe waived its immunity from suit by entering into a cigarette tax agreement with the State of Washington under which it collects Tribal cigarette taxes in lieu of state cigarette taxes and shares a certain percentage of that tax revenue with the State. Part I, Section 1 of the Agreement, however, clearly states that “[n]othing in this Agreement shall be construed as a waiver, in whole or in part, of either party’s sovereign immunity.” Far from waiving its immunity from suit, this language unequivocally expresses the Tribe’s intent not to do so. Accordingly, we find that the Tribe did not waive its sovereign immunity.
Appellants also argue that even if the Tribe is immune from a suit for damages, such immunity would not bar the present action because Appellants seek prospective equitable relief, namely injunctions and declaratory judgments. This argument, however, is unpersuasive. The legal principles relevant to assessing this argument were clearly set forth by the United States Supreme Court in United States v. United States Fidelity & Guaranty Co. et al., 309 U.S. 506, 514 (1940). Therein, the Court noted that “[c]onsent alone gives jurisdiction to adjudge against a sovereign” and “[a]bsent that consent, the attempted exercise of judicial power is void.” Applying these principles to the issue before us, we note that a court’s issuance of an injunction or a declaratory judgment is no less an exercise of judicial power than an award of damages. Thus, a court may neither enjoin a sovereign, nor adjudge against a sovereign through a declaratory judgment, without that sovereign’s consent.
This conclusion is buttressed by a consideration of Puyallup Tribal law. While the Puyallup Tribal Code lacks any express statement of the scope and extent of the Tribe’s sovereign immunity, we may infer the Tribe’s understanding of the scope of its sovereign immunity from various provisions in the Tribal Code in which the Tribe waives its immunity from suit in specific circumstances. For example, the Tribe provides a limited waiver of its immunity from a suit in the Tribal Tort Claims Act. See PTC, § 4.12.030. From this provision, we may infer that Tribe views itself as immune from suits for damages sounding in tort. If the
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Tribe did not view itself as immune from suits for damages sounding in tort, there would be no need to waive its immunity in this context. Confirming this analysis, the language introducing this section states that “[t]he Tribe’s immunity from suit shall remain in full force and effect except to the extent that it is waived by this Act.” Moreover, section 2.12.010, setting forth the purpose of the Tribal Tort Claims Act, states that “[t]he Tribal Council declares that the purpose of this Act is to establish a limited waiver of the Tribe’s sovereign immunity, and to impose strict procedures under which a person may file an action or claim for monetary damages against the Tribe, its agents, employees, and officers.”
The Tribal Tort Claims Act is not the only Tribal law that imposes strict procedures under which a person may file an action against the Tribe. The Puyallup Administrative Procedure Act does so as well. For example, sections 2.08.100 and 2.08.190 of the Puyallup Code impose strict procedures under which a person may file a declaratory judgment action against the Tribe challenging the validity of a rule, including an order, directive or regulation of general applicability approved by the Tribal Council the violation of which subjects a person to a civil penalty or other civil administrative sanction.1 Section 2.08.100 clearly states that unless these procedures are strictly followed, the declaratory judgment action cannot be maintained.2 While these sections are not denominated waivers of sovereign immunity, if the Tribe did not view itself as generally immune from declaratory judgment actions, it could not and would not assert in section 2.08.190 that “[a] person aggrieved by . . . promulgation of a rule may not use any other procedure to obtain judicial review of such . . . final rule, even though another procedure is provided elsewhere by a . . . Tribal law of general application.” PTC § 2.08.190 (emphasis added). Accordingly, from these sections of the Puyallup Administrative Procedure Act, we may infer that the Tribe understands its sovereign immunity as extending to equitable actions and remedies.
Concluding that sovereign immunity extends to equitable actions and remedies also makes sense from a public policy perspective. Holding that a sovereign is subject to a court’s power to impose equitable relief would threaten to disrupt basic governmental functions and the provision of essential governmental services. Imagine a court issues an injunction enjoining members of the Tribal Council from meeting together. If the members of the Tribal Council were subject to the court’s power to issue injunctive relief, then the Tribal Council could not convene a meeting in order to address important Tribal matters. A central governmental function would be disrupted. Similarly, imagine a court issues an injunction enjoining the Tribal Tax Administrator from collecting certain Tribal taxes. If a Tribal official acting within the scope of
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his or her authority were subject to the court’s power to issue injunctive relief, then the Tribal Tax Administrator would have to forego collecting those taxes. If those taxes were an important source of revenue for the Tribe, then as a result of that injunction, the Tribe’s revenue would be reduced and essential governmental services might have to be cut due to a lack of funding. For these reasons, inter alia, it is clear that a sovereign’s immunity from suit must extend to equitable actions and remedies.
This understanding of the scope and extent of tribal sovereign immunity parallels the federal government’s understanding of the scope and extent of federal sovereign immunity. The United States Supreme Court has held that federal sovereign immunity extends to suits seeking injunctive relief, Larson, War Assets Administrator and Surplus Property Administrator v. Domestic and Foreign Commerce Corp., 337 U.S. 687-689 (1949), and to declaratory judgment actions, id. at 689 n.9. Moreover, federal courts, including the United States Supreme Court and the Court of Appeals for the Ninth Circuit, have held repeatedly that tribal sovereign immunity extends to actions for injunctive relief and declaratory judgments. Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 172 (1977) (holding that the Puyallup Tribe was immune from a state court action seeking an injunction enjoining off-reservation fishing allegedly in violation of state law); Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991) (holding Indian tribe immune from a counterclaim by the state seeking an injunction requiring the collection of a tax on nonmembers); Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269, 1271 (9th Cir. 1991) (holding that a tribe’s sovereign “immunity extends to suits for declaratory and injunctive relief.”); Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 478 (9th Cir. 1985) (suit for declaratory and injunctive relief, as well as damages, barred by tribal sovereign immunity); Chemehuevi Indian Tribe v. California State Bd. of Equalization, 757 F.2d 1047, 1052 n.6 (9th Cir.), rev'd. in part on other grounds, 474 U.S. 9 (1985) (tribal “sovereign immunity is not a discretionary doctrine that may be applied as a remedy depending on the equities of a given situation”).
The foregoing establishes that the court below correctly dismissed Appellants’ claims for damages and injunctive relief. It remains to consider, however, whether Appellants’ claim for a declaratory judgment falls within the limited waiver for declaratory judgment actions under the Puyallup Administrative Procedure Act. Under this Act, “[t]he validity of any rule may be determined upon petition for a declaratory judgment addressed to the Puyallup Tribal Court.” PTC § 2.08.100. A “rule” is defined as
Any order, directive or regulation of general applicability approved by the Tribal Council:
(A) The violation of which subjects a person to a civil penalty or other civil administrative sanction;
(B) Which establishes, alters or revokes any procedure, practice or requirement relating to department hearings;
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(C) Which establishes, alters or revokes any qualification or requirement relating to the enjoyment of benefits or privileges conferred by law;
(D) Which establishes, alters or revokes any qualifications or standards for the issuance, suspension or revocation of licenses to pursue any commercial activity.
PTC § 2.08.020(k)(1). In their Complaint, Appellants seek five declaratory judgments. All five of the declaratory judgments requested concern the validity and lawfulness of various contracts and agreements, including a Contract, dated April 20, 2005, between the Governor of the State of Washington and the Puyallup Tribe, a Memorandum of Agreement, dated May 3, 2005, between the Tribe and the Washington State Liquor Control Board, and a Master Settlement Agreement, dated November 23, 1998, between tobacco manufacturers, leading tobacco product manufacturers, and 46 states, including the State of Washington. None of these contracts and agreements constitutes a “rule” within the meaning of the Puyallup Administrative Procedure Act. Accordingly, none of the claims for declaratory judgment falls within the limited waiver of sovereign immunity under that Act.
For the foregoing reasons, we conclude that Appellants’ attempt to rely on their prayer for equitable remedies in order to pierce the Tribe’s sovereign immunity must fail3 and, a fortiori, the lower court did not err in dismissing the action against the Tribe on the grounds that it is immune from suit under the doctrine of tribal sovereign immunity. It remains only to consider whether this immunity extends to Appellee Mr. Chad Wright, the Cigarette Tax Administrator of the Tribe.
MR. WRIGHT’S ASSERTION OF SOVEREIGN IMMUNITY
Tribal sovereign immunity “extends to tribal officials when acting in their official capacity and within the scope of their authority.” United States v. Oregon, 657 F.2d 1009, 1013 n. 8 (9th Cir. 1981); Linneen v. Gila River Indian Cmty., 276 F.3d 489, 492 (9th Cir. 2002). A plaintiff cannot “avoid the doctrine of sovereign immunity by the simple expedient of naming an officer of the Tribe as a defendant, rather than the sovereign entity.” Snow v. Quinault Indian Nation, 709 F.2d 1319, 1322 (9th Cir. 1983), cert. denied, 467 U.S. 1214 (1984). However, the protection provided to tribal officials under the doctrine of tribal sovereign immunity is not absolute. The Ninth Circuit has extended the doctrine of Ex Parte Young to tribal officials as well: “tribal sovereign immunity does not bar a suit for prospective relief against tribal officers allegedly acting in violation of federal law.” Burlington N. R. Co. v. Blackfeet Tribe of Blackfeet Indian Reservation, 924 F.2d 899 (9th Cir. 1991), overruled on other grounds by Big Horn
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County Electric Cooperative, Inc. v. Adams, 219 F.3d 944 (9th Cir. 2000); see also Arizona Pub. Serv. Co. v. Aspaas, 77 F.3d 1128, 1133-34 (1996). As the United States Court of Appeals for the Tenth Circuit has noted,
The situation is different, however, when the [tribal] law under which the official acted is being questioned. . . . If the sovereign did not have the power to make a law, then the official by necessity acted outside the scope of his authority in enforcing it, making him liable to suit. Any other rule would mean that a claim of sovereign immunity would protect a sovereign in the exercise of power it does not possess.
Tenneco Oil Co. v. Sac & Fox Tribe of Indians, 725 F.2d 572, 574 (10th Cir. 1984). For example, “tribal officials are not immune from suit to test the constitutionality of the taxes they seek to collect.” Blackfeet Tribe, 725 F.2d at 901-02.
Appellants argue that Mr. Chad Wright in his official role as Tribal Tax Administrator is acting in violation of federal law when he administers the Tribal cigarette tax imposed on cigarette sales by Indian retailers to non-Indian purchasers on Tribal lands. However, Appellants’ argument that Mr. Wright is acting in violation of federal law does not bear scrutiny. In Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152 (1980), the United States Supreme Court stated that “[t]he power to tax transactions occurring on trust lands . . . is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status.” The Supreme Court then went on to hold that “federal law to date has not worked a divestiture of Indian taxing power” and that a tribe’s power to tax cigarettes is not implicitly divested by virtue of the tribes’ dependent status. Id. at 153-54. In reaching these conclusions, the Supreme Court stated that “we can see no overriding federal interest that would necessarily be frustrated by tribal taxation.” Id. at 154. To the contrary, referring back to the 19th and early 20th century, the Court noted that
Executive Branch officials have consistently recognized that Indian tribes possess a broad measure of civil jurisdiction over the activities of non-Indians on Indian reservation lands in which the tribes have a significant interest, 17 Op. Atty. Gen. 134 (1881); 7 Op. Atty. Gen. 174 (1855), [*153] including jurisdiction to tax, 23 Op. Atty. Gen. 214 (1900); Powers of Indian Tribes, 55 I.D. 14, 46 (1934).
Id. at 153. The Court then quoted the Solicitor of the Department of the Interior from 1934 claiming that
Chief among the powers of sovereignty recognized as pertaining to an Indian tribe is the power of taxation. Except where Congress has provided otherwise, this power may be exercised over members of the tribe and over nonmembers, so far
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as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions.
Id. Moreover, the Court continued, “[f]ederal courts also have acknowledged tribal power to tax non-Indians entering the reservation to engage in economic activity[,] Buster v. Wright, 135 F. 947, 950 (CA8 1905), appeal dism'd, 203 U.S. 599 (1906); Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (CA8 1956)” and “[n]o federal statute cited to us shows any congressional departure from this view.” Id. Indeed, the Court opined that the
authority to tax the activities or property of non-Indians taking place or situated on Indian lands, in cases where the tribe has a significant interest in the subject matter, was very probably one of the tribal powers under “existing law” confirmed by § 16 of the Indian Reorganization Act of 1934, 48 Stat. 987, 25 U.S.C. § 476.
Id. In other words, contrary to the claims of the Appellants, all three branches of the federal government have recognized that Indian tribes have the power to tax economic activities involving non-Indians in Indian country. We are, therefore, led ineluctably to the conclusion that Mr. Chad Wright is not acting in violation of federal law when performing his official duties as the Cigarette Tax Administrator of the Tribe and administering the Tribal cigarette tax imposed on cigarette sales to non-Indians on Tribal lands.
For the reasons set forth above, we conclude that the lower court did not err in dismissing the action against Mr. Wright on the grounds that he is immune from suit under the doctrine of tribal sovereign immunity. At all times relevant to the present action, Mr. Chad Wright was a tribal official acting in his official capacity, within the scope of his authority, and not in violation of federal law.
APPELLANTS’ PENDING MOTIONS
Finally, we must take up four pending motions by the Appellants. On February 17, 2011, Appellants filed a motion entitled “Plaintiffs’ Combined Motion for Appointment of Special Master to Compel Answers and to Continue Hearing Set for February 25, 2011 Until Motion to Compel is Decided.” In the Court’s “Confirmation that Oral Argument will be Heard on February 25, 2011,” dated February 18, 2011, we wrote in response to this motion that “[t]he caption of this pleading directs Plaintiffs’ Combined Motion to the Tribal Court of the Puyallup Tribe of Indians of the Puyallup Indian Reservation. Despite its reference to the February 25, 2011 oral argument scheduled before this Court, Plaintiffs’ Combined Motion is not directed to the Court of Appeals.” The Appellants’ second pending motion, filed on November 9, 2010 and entitled “Plaintiffs’ Motion to Reconsider Order Denying Plaintiffs’ Amendment to their Complaint,” also appeared from its caption to be directed to the Tribal Court and not the Court of Appeals. Accordingly, we took no action with regard to either of them. At oral argument,
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however, the Appellants clarified that notwithstanding the erroneous caption on the motion, they were filing both motions before this Court. At that time, we reserved ruling on the motions. We now rule on both. Neither Plaintiffs’ Combined Motion nor Plaintiffs’ Motion to Reconsider raises any issues that Appellants have not already raised in prior filings, including Appellants’ November 9, 2010 Motion to Reconsider Order Denying Plaintiffs’ Amendment to Their Complaint and Appellants’ May 28, 2009 Motion to Recuse Appellate Panel. The issues set forth in Plaintiffs’ Combined Motion and Plaintiffs’ Motion to Reconsider have already been addressed by various Orders of the Court of Appeals, including our January 5, 2011 Order on Oral Argument, which expressly directed the parties to present argument on Appellants’ motion to amend their complaint. For these reasons, Plaintiffs’ Combined Motion and Plaintiffs’ Motion to Reconsider are DENIED.
The third motion pending before this Court was made at oral argument and requests that that appellate panel of judges recuse itself. Like Plaintiffs’ Combined Motion and Plaintiffs’ Motion to Reconsider, this motion restates an earlier motion already ruled upon by this Court. On May 28, 2009, Appellants filed a motion entitled “Motion to Recuse Appellate Panel Including Judge Robert J. Miller.” On June 29, 2009, this Court denied this motion in an order entitled “Order Denying Appellants’ Motions to Recuse Panel and to Argue Additional Issues.” For the same reasons stated in that order, Appellant’s pending motion to recuse appellate panel is DENIED.
The fourth and last motion pending before this Court was filed on January 7, 2011 and is entitled “Plaintiffs' Motion for Temporary Injunction to Relieve Plaintiff Paul Matheson from Requirements Imposed by Defendant on Plaintiff to Purchase Cigarettes only from State of Washington Licensed Wholesalers or State Certified Wholesalers and also from the Requirement that Plaintiff Paul Matheson Must Sell Cigarettes to Retail Customers at a Minimum Price that Includes Defendants' Tribal Tax Added to the Wholesale Price Paid by Matheson.” For the reasons stated earlier in this opinion, under the doctrine of tribal sovereign immunity both the Tribe and Mr. Chad Wright enjoy immunity from the injunctions sought by the Appellants. Moreover, as this motion seeks a temporary injunction and our decision issues a final judgment in this case, the motion is now moot. Accordingly, Plaintiffs’ Motion for Temporary Injunction is DENIED.
The judgment of the Puyallup Tribal Court is, accordingly,
Affirmed.
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
Section 2.08.100 states, in relevant part, that “[t]he validity of any rule may be determined upon petition for a declaratory judgment addressed to the Puyallup Tribal Court when it is alleged that the rule, or its threatened application, interferes with or impairs or immediately threatens to interfere with or impair, the legal rights or privileges of the petitioner.”
Section 2.08.100 states, in relevant part, that “the Tribal Court shall not have jurisdiction to hear any such petition for declaratory judgment, and no declaratory judgment may be rendered, unless the petitioner has first requested in writing that the sponsoring department pass upon the validity of the rule in question.”
For a different reason, the same argument failed to persuade the Court of Appeals of Washington, Division Two. In Matheson v. Gregoire, 139 Wn. App. 624, 632, 161 P.3d 486, 491 (2007), the court rejected this argument claiming that “[b]ecause Matheson requested both equitable relief and damages, sovereign immunity protects the Tribe from his suit, even” if “tribal immunity does not protect tribes from declaratory and injunctive relief.”