11 NICS App. 52, PENDERGRASS v. SAUK-SUIATTLE TRIBE (June 2013)
IN THE SAUK-SUIATTLE TRIBAL COURT OF APPEALS
Judy Pendergrass, Cabrini Artero, Denise Baird, Owen Couch, Barbara Cousins, Christopher Danilson, Rose Dills, Michelle Fink-Custer, Plaintiffs and Appellees,
v.
Sauk-Suiattle Tribe, Norma Joseph, Thomas De Coteau, Michael Hoffman, Kevin Lenon, Defendants and Appellants.
No. Sau Civ 01/12-002 (June 27, 2013)
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Eric Nielsen, Chief Judge; Douglas Nash, Judge; Daniel A. Raas, Judge. |
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Susan B. Mindenbergs and Jeffrey L. Needle, for Plaintiffs/Appellees; Thomas B. Nedderman and Sean E. Moore, for Defendants/Appellants. |
11 NICS App. 52, PENDERGRASS v. SAUK-SUIATTLE TRIBE (June 2013) p. 53
OPINION
I. INTRODUCTION AND PROCEDURAL HISTORY
The Sauk-Suiattle Tribal Council held a council meeting on June 10, 2011. On the approved agenda were several matters of routine business; however, during the meeting the Council considered a series of resolutions that were not on the agenda. Each of the resolutions terminated the employment of a named employee of the Sauk-Suiattle Tribe.1 Each resolution is identical with the others, save for identification of the terminated employee. Each passed by the same 4-2-1 (for, against, abstain) margin.2 There are seven members of the Sauk-Suiattle Tribal Council. Each resolution was signed by the Vice Chair of the Council, although the Chair was present.
The Tribe moved to dismiss the Pendergrass Complaint on the ground that tribal sovereign immunity barred all claims for relief. The Trial Court dismissed some of the claims, but not all. The Tribe appeals the portion of the Trial Court’s order holding that some of the claims are not barred by sovereign immunity. Pendergrass did not appeal the dismissal of the other claims.3
11 NICS App. 52, PENDERGRASS v. SAUK-SUIATTLE TRIBE (June 2013) p. 54
II. IS THE APPEAL TIMELY?
Section 1(a) of the Sauk-Suiattle Rules of Court – Appellate permits an appeal from “[A]ny appealable judgment or order.”4 The denial of a motion to dismiss on sovereign immunity grounds is an appealable order. See Miller v. Wright, 705 F.3d 919 (9th Cir, 2013). One of the purposes of a motion to dismiss because a tribe has sovereign immunity is to conserve tribal resources (including the time and expense of litigating the merits of the claims in the Trial Court). If the suit is barred by sovereign immunity, tribal assets are conserved: the Tribe does not have to expend its money, staff time or energy that would be needed if it had to wait until the conclusion of a trial to appeal the denial of sovereign immunity. The assets and energy of the plaintiffs are likewise conserved by allowing an appeal of the denial of a motion to dismiss on sovereign immunity grounds. This appeal is timely.
III. STANDARD OF REVIEW
Denial of a motion to dismiss due to tribal sovereign immunity is analogous to a motion for summary judgment. See Miller v. Wright, supra. As with motions for summary judgment, the standard of review is de novo, Id. at 923, and the Court of Appeals is in the same position as the Trial Court. This review is based on the documents filed in the Trial Court and the resolutions terminating Pendergrass. All inferences from this evidence are made in favor of the non-moving party: here that is the Appellee, Pendergrass. Williams v. Madison, 6 NICS App. 205 (Tulalip Tribal Ct. App. 2004).
The Fifth Amendment to the United States Constitution forbids a denial of due process or the equal protection of federal laws to any person within U.S. jurisdiction. But the Fifth Amendment does not apply to Indian Tribes. Talton v. Mayes, 163 U.S. 376 (1896); see also Cherokee Nation v. Georgia, 30 U.S. 1 (1831). Neither do the Fourteenth Amendment Due Process or Equal Protection Clauses. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, and n.7 (1978). The federal Equal Opportunity Employment Act, among its provisions, prohibits employment discrimination on the basis of such factors as race or national origin. 42 U.S.C. § 2000e-2(a). However, 42 U.S.C.§ 2000e-2(i) exempts employment on or near an Indian reservation if Indians are given employment preference. This provision has been held to be a valid exercise of Congressional power that does not violate the United States Constitution. A similar provision requiring Indian preference in federal employment on or near Indian reservations, 25 U.S.C. §§461, et seq., is a lawful distinction based on a person’s choice of political affiliation with a tribe (tribal membership or non-tribal membership) rather than impermissible racial or national origin discrimination. Morton v. Mancari, 417 U.S. 535 (1975).
11 NICS App. 52, PENDERGRASS v. SAUK-SUIATTLE TRIBE (June 2013) p. 55
Thus Pendergrass’ claims under the United States Constitution fail, even if these would be otherwise cognizable in the Sauk-Suiattle Court.
V. TRIBAL SOVEREIGN IMMUNITY
Indian Tribes like the Sauk-Suiattle Indian Tribe are domestic dependent sovereigns, possessed of all sovereignty under American law except that which has been limited by their dependency on the United States, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978);5 explicitly limited by Congress, Santa Clara Pueblo v. Martinez, supra, at 56-7; or waived by the Tribe, C&L Enterprises v. Citizen Band of Potawatomi Indian Tribe, 532 U.S. 411 (2001). Sovereign immunity is a necessary corollary of tribal sovereignty. Three Affiliated Tribes of the Ft. Berthold Reservation v. Wold Engineering, 476 U.S. 877 (1986). A congressional or tribal waiver of sovereign immunity must clear and explicit. C&L Enterprises, supra, at 418.
A. Has the Sauk-Suiattle Tribe Waived Its Sovereign Immunity For This Action?
Nothing in this code shall be deemed to constitute a waiver by the Sauk-Suiattle Tribe of its sovereignty, rights, powers or privileges.6
Sauk-Suiattle Law and Order Code, Section 1.030 Nonwaiver of Sovereign Immunity.
Sauk-Suiattle Law and Order Code, Section 1.040 Liberal Construction of Code.
11 NICS App. 52, PENDERGRASS v. SAUK-SUIATTLE TRIBE (June 2013) p. 56
implied, by virtue of the enactment of this resolution or any administrative or legal action which may arise directly or indirectly from the same, not does the Sauk-Suiattle Tribal Council waive, alter, or otherwise diminish any rights, privileges, remedies, or services guaranteed by the Point Elliot Treaty.
In order to overcome these unambiguous, clear and explicit assertions of Sauk-Suiattle sovereign immunity, Pendergrass turns to the Constitution of the Sauk-Suiattle Tribe. Pendergrass’ Complaint claims that the Sauk-Suiattle Constitution, in particular Article VII, §17 and Article VIII8, impliedly incorporate three federal statutes as “applicable federal law”, binding on the Sauk-Suiattle Tribe, and this constitutes an implied waiver of sovereign immunity. The Complaint and subsequent briefing assert that each of these laws – (a) the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, (b) 42 U.S.C. §1981, and (c) 25 U.S.C. §1302(8), the Equal Protection clause of the Indian Civil Rights Act (ICRA) – apply to the Sauk-Suiattle Tribe under these Sauk-Suiattle Constitutional provisions, and each thereby waives Sauk-Suiattle sovereign immunity and permits jurisdiction in the Sauk-Suiattle Court for this action.
Initially, implied waivers of tribal sovereign immunity are disfavored. In C&L Enterprises, supra, the Supreme Court held that tribal waivers of sovereign immunity must be clear. The Sauk-Suiattle Code is an assertion of Sauk-Suiattle sovereign immunity which negates any implied waiver in the Sauk-Suiattle Constitution.
Secondly, the Fourteenth Amendment to the United States Constitution is a limitation on powers of States, not Indian Tribes. Talton, supra. Like the Fourteenth Amendment, 42 U.S.C. §1981, applies on its face to States and not to Indian Tribes. Neither would apply to the Sauk-Suiattle Tribe even assuming that Pendergrass’s ‘implied adoption’ argument is correct: an implied adoption of the Fourteenth Amendment and 42 U.S.C §1981 would not change the plain meaning of these prohibitions on States and not Indian Tribes. Pendergrass’ argument requires not only that these provisions were adopted by the Sauk-Suiattle Tribe, but that (1) the adoption worked a substantive alteration of them to apply them to the Sauk-Suiattle Tribe, and (2) the adoption worked an unstated waiver of the Sauk-Suiattle Tribe’s sovereign immunity. Neither of these assumptions is supported by any logic or evidence.
11 NICS App. 52, PENDERGRASS v. SAUK-SUIATTLE TRIBE (June 2013) p. 57
Suiattle Constitution. Article VIII, supra, extends the provisions of the ICRA, including the equal protection of its laws, only to its members. Pendergrass’ claim for denial of equal protection is based on the assertion that they are not Indians: this claim requires that Pendergrass not be members of the Sauk-Suiattle Tribe. Thus they are not entitled to the protection of the equal protection provisions of Sauk-Suiattle Constitution.
In sum, there has been no tribal waiver of Sauk-Suiattle tribal sovereign immunity that would allow this action to go forward against the Sauk-Suiattle Tribe in its own courts. However, (1) the United States has plenary power over tribal governmental actions, Lone Wolf, supra, so a waiver may be found in federal statutes, (2) Pendergrass has asserted claims against the four tribal councilmembers in their individual as well as in their official capacities, and (3) Pendergrass argues that method by which the Resolutions terminating their employment were adopted denied them due process of Sauk-Suiattle law because the procedure by which the Resolutions were adopted was contrary to the internal rules of the Sauk-Suiattle Tribal Council.
The foregoing analysis of Sauk-Suiattle law does not decide if the United States, in enacting the ICRA, waived the sovereign immunity of the Sauk-Suiattle Tribe in its own courts.9 The preamble to the list of rights in the ICRA states: “No Indian tribe, in the exercise of self-government, shall … (8) deny to any person the equal protection of its laws or deprive any person of liberty or property without due process of law.” (Emphasis added). Santa Clara Pueblo v. Martinez, supra, is the starting point for interpretation of the ICRA and sovereign immunity.
Santa Clara Pueblo involved an equal protection claim against the Pueblo for discriminating for enrollment between classes of children of members based on the gender of the parent. The action, against both the Pueblo and individual officers of the Pueblo, was brought in federal court. The Supreme Court stated the “threshold issue” the case presented was whether ICRA “may be interpreted to impliedly authorize such actions, against a tribe or its officers in the federal courts.” Santa Clara Pueblo, 436 U.S. at 52. (Emphasis added).
The Court answered this question in the negative, Id., and the remainder of its opinion explained its reasoning. The Court acknowledged that Congress' decision not to create a federal cause of action for the enforcement of rights created by the Indian Civil Rights Act was motivated not only by its desire not to be at odds with the congressional goal of protecting tribal self-government; but to also avoid the imposition of serious financial burdens on the tribes. Id. at 59.
11 NICS App. 52, PENDERGRASS v. SAUK-SUIATTLE TRIBE (June 2013) p. 58
The opinion recognizes that tribal courts are appropriate forums for determination of controversies involving both Indians and non-Indians, see, e.g., Id. at 65,10 but at no point does the Court directly address the issue of whether the ICRA is a Congressional waiver of tribal sovereign immunity in a tribe’s own courts.11 And, given the facts in this case it is unnecessary for us to decide the issue.
Employment with a Tribe is different than employment with other entities. Tribes are unique political bodies, and unlike private employers they perform governmental functions for the benefit of their members within their territory. See United States v. Mazurie, 419 U.S. 544, 557 (1975) (Indian tribes “are unique aggregations possessing attributes of sovereignty over both their members and their territory.”). Unlike states and the federal government, Tribes are unconstrained by the constitutional limitations of federal or state authority. Santa Clara Pueblo v. Martinez, supra, 436 U.S. at 56.
Federal law recognizes that the principles of tribal self-governance and sovereignty justify preferential employment of Indians by Indian tribes or by employers located on or near Indian reservation, and specifically exempts tribes from laws designed to prohibit discrimination based on factors like race or national origin. 42 U.S.C. § 2000e; see Morton v. Mancari, supra, (“These 1964 exemptions as to private employment indicate Congress' recognition of the
11 NICS App. 52, PENDERGRASS v. SAUK-SUIATTLE TRIBE (June 2013) p. 59
longstanding federal policy of providing a unique legal status to Indians in matters concerning tribal or ‘on or near’ reservation employment.”). Federal law also accords an employment preference for qualified Indians in the Bureau of Indian Affairs based on the same principles of self-governance and political affiliation with a Tribe. 25 U.S.C. § 461 et seq. The Mancari Court held Indian preference employment laws did not violate due process because they furthered self-governance. Id. at 555. A Tribe’s ability to decide what agents it will employ to implement and administer its laws and policies regulating its members, reservation, and internal affairs directly impacts a Tribe’s self-governance and sovereignty.
The unique nature of tribal employment recognized by federal law, and the role of employment decisions in the area of tribal self-governance, leads us to conclude an allegation that termination of an “at will” tribal employee because the employee is not a tribal member or because the decision was made contrary to the governing body’s meeting procedures is not a violation of the ICRA’s equal protection or due process provisions. Indeed, “… an at-will government employee ... generally has no claim based on the Constitution at all.” Waters v. Churchill, 511 U.S. 661, 679 (1994) (plurality opinion).
Moreover, a statute may create jurisdiction without creating a substantive enforceable right. United States v. Testan, 424 U.S. 392, 398-401 (1976). Where a plaintiff sues the government for monetary damages under the Constitution or a statute, that remedy is unavailable unless the provision can be fairly interpreted as mandating compensation for that damage. Id. at 402 (citation omitted). The Martinez Court reasoned Congress’s failure to provide a federal remedy for an alleged violation of the ICRA was, in part, to avoid the imposition of financial burdens on a Tribe. 436 U.S. at 59. The relief requested in Pendergrass’ complaint is for monetary damages. As the Sauk-Suiattle Tribal Court has previously held:
Moses v. Joseph, 2 Tribal Ct. Rep. A-51, A-54 (Sauk-Suiattle Tribal Ct. 1980), as quoted in Vicki J. Limas, Employment Suits Against Indian Tribes: Balancing Sovereign Rights and Civil Rights, 70 Denv. U. L. Rev., 359, at 379 (1992-1993).
Even if the ICRA were an express and unequivocal waiver of the Tribe’s sovereign immunity for suits brought in its Tribal court for violations of its provisions, there is no legal basis to conclude it authorizes the monetary damages remedy sought by Pendergrass in the absence of the Tribe’s waiver of its sovereign immunity allowing for that remedy. See, Nez v.
11 NICS App. 52, PENDERGRASS v. SAUK-SUIATTLE TRIBE (June 2013) p. 60
Bradley, 3 Nav. R.126, 130-31 (1982) (ICRA does not give any new jurisdiction to the tribal court, because tribal court jurisdiction comes from the sovereignty of the tribe or nation which establishes the court). Pendergrass has failed to allege a cause of action cognizable under the ICRA for monetary damages based on the allegation of wrongful termination in violation of the ICRA, and the Tribe’s judiciary has no power to impute a private cause of action in the ICRA.12
The Sauk-Suiattle Tribe has chosen to assert its sovereign immunity.13 The result could make it difficult for the Tribe to recruit and keep qualified non-member employees. The wisdom of that decision, however, rests with the Tribe’s governing body.
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ARE THE FOUR COUNCILMEMBER DEFENDANTS INDIVIDUALLY LIABLE FOR THEIR VOTES TERMINATING PENDERGRASS? |
Notwithstanding governmental liability which may be defeated by the sovereign immunity of the government, individual liability of a government official may be present if the official acts outside the scope of her or his authority. Ex Parte Young, 209 U.S. 123 (1908). The legal rationale behind this theory is that an official who is otherwise cloaked with governmental sovereign immunity loses that immunity when he or she acts in a way that the government is prohibited from acting, Id., for the authority of the official cannot exceed the scope of that of the government. Ergo, she or he has exceeded the scope the government’s authority and loses the cover of the government’s sovereign immunity.
Pendergrass gets no support from this doctrine. The four councilmembers who voted for Pendergrass’ terminations were acting as elected members of the Sauk-Suiattle Tribal Council when they took their votes. Pendergrass does not question the ability of the Tribal Council to pass the termination resolutions: only the motives and methods behind the resolutions and the internal procedure of the Tribal Council are challenged.14 These four councilmembers constituted a majority of the Tribal Council: their actions are the official actions of the Tribal Council and hence of the Sauk-Suiattle Tribe itself. The claim that these actions were outside the scope of the councilmembers’ authority merges with the claim that the Tribal Council’s official acts were improper. There is no distance between the individual councilmembers’ official votes and the official action of the Tribal Council. Thus, the question becomes: Is the action of the Sauk-Suiattle Tribal Council beyond its power? As discussed above, the Sauk-Suiattle Tribe, by choosing to employ Pendergrass and its other employees as “at-will” employees, has eliminated equal protection challenges to its employment decisions when those decisions are based on tribal membership.
11 NICS App. 52, PENDERGRASS v. SAUK-SUIATTLE TRIBE (June 2013) p. 61
VII. WOULD PROCEDURAL IRREGULARITIES IN THE ENACTMENT OF THE RESOLUTIONS TERMINATING PENDERGRASS INVALIDATE THE RESOLUTIONS?
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VII. |
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.
Each resolution is an official act of the Sauk-Suiattle Tribal Council, and thus an official act of the Sauk-Suiattle Tribe. Although none of the resolutions are a part of the Clerk’s Papers in this appeal, judicial notice of these official acts is proper. See: Federal Rule of Evidence FRE 201, 201(b)(2); Washington Rules of Evidence, ER 201 and 201(b)(2).
The parties do not agree on the precise claims that were dismissed below.
Pendergrass does not claim that their hiring and firing by the Sauk-Suiattle Tribe is in any way inconsistent with its status as a ‘domestic dependent nation.’
The ICRA did not waive Sauk-Suiattle sovereign immunity regarding equal protection or due process claims in the federal courts, Santa Clara Pueblo v. Martinez, supra.
“Moreover, contrary to the reasoning of the court below, implication of a federal remedy in addition to habeas corpus is not plainly required to give effect to Congress' objective of extending constitutional norms to tribal self-government. Tribal forums are available to vindicate rights created by the ICRA, and § 1302 has the substantial and intended effect of changing the law which these forums are obliged to apply. Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians. See, e. g., Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). See also Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883). Nonjudicial tribal institutions have also been recognized as competent law-applying bodies. See United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). Martinez, supra, at 65-6 (footnotes omitted).
In the fifteen to twenty years after the decision in Martinez in 1978, tribal courts across the United States have split over whether the ICRA, as interpreted in Martinez, was a Congressional waiver of tribal sovereign immunity in a Tribe’s own courts. See Vicki J. Limas, Employment Suits Against Indian Tribes: Balancing Sovereign Rights and Civil Rights, 70 Denv. U. L. Rev., 359 (1992-1993); Robert J. McCarthy, Civil Rights In Tribal Courts: The Indian Bill of Rights At Thirty Years, 34 Idaho L. Rev. 465 (1997-1998); Frank Pommersheim, Tribal Court Jurisprudence: A Snapshot From The Field, 21 Vt. L. Rev. 7, at 22 (1996-1997); Mark D. Rosen, Multiple Authoritative Interpretations of Quasi-Constitutional Federal Law: of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L. Review, 479 (2000-2001); Catherine T. Struve, Tribal Immunity And Tribal Courts, 36 Ariz. St. LJ 138, (2004). More recent tribal court decisions have not coalesced into a generally accepted view of whether the ICRA and Martinez constitute a Congressional waiver of tribal sovereign immunity.