13 NICS App. 43, J.I. and E.I. v. MPC, et al. (July 2015)
IN THE MUCKLESHOOT TRIBAL COURT OF APPEALS
MUCKLESHOOT INDIAN RESERVATION
AUBURN, WASHINGTON
J.I. and E.I., Husband and Wife, on behalf of themselves and as Guardians of their Minor Child, T.I., Plaintiffs/Appellants,
v.
Muckleshoot Pentecostal Church1, Muckleshoot Indian Tribe; K.M.C.; C.W.; et al., Defendants/Respondents.
NO. MUC-CIV-03/14-032 (July 23, 2015)
SYLLABUS*
Appellants challenge ruling of the trial court dismissing all tort claims against two of the Defendants. Issue on appeal is whether Trial court has subject matter jurisdiction over a case of battery sounding in tort brought against a private individual. Two of the three Court of Appeals’ Judges affirm the lower court’s ruling that trial court is a court of limited jurisdiction. The Tribe’s Constitution vests in the Tribal Council the power to create a court of limited jurisdiction. Judges argue no ordinance grants the trial court’s jurisdiction over an action for battery sounding in tort against a private individual. Dissenting Judge points to the Constitution’s Preamble to determine Tribal Council’s intentions and argues that Tribal Council does not expressly limit the court’s jurisdiction and therefore, the Court is one of general jurisdiction and can hear the tort being alleged in the Complaint.
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Before: |
Robert J. Miller, Chief Judge; Gregory M. Silverman, Judge; Thomas Weathers, Judge. |
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Appearances: |
Charles R. Hostnik, Anderson Hostnik PLLC, for Appellants; Gabriel S. Galanda and Ryan D. Dreveskracht, Galanda Broadman PLLC, for Respondents K.M.W. and C.W.; Andrew T. Biggs, Northcraft, Bigby & Biggs, P.C., for |
13 NICS App. 43, J.I. and E.I. v. MPC, et al. (July 2015) p. 44
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Respondent Muckleshoot Indian Tribe. |
OPINION
Silverman, J., with whom Weathers, J., concurs:
This matter comes before the Court of Appeals pursuant to the Notice of Appeal filed on January 28, 2015. Appellants challenge the rulings of the Muckleshoot Court of Justice issued on November 10, 2014 and January 22, 2015 dismissing all tort claims against Defendants K.M.W. and C.W. The appeal presents a single issue of law to be reviewed de novo: whether the Muckleshoot Court of Justice has subject matter jurisdiction over a case of battery sounding in tort brought against a private individual?2 On this issue, the lower court ruled that the Muckleshoot Court of Justice lacked jurisdiction. We agree and affirm the lower court’s ruling.
I. The Muckleshoot Court of Justice is a court of limited jurisdiction.
Article VI, Section 1, Paragraph k of the Constitution of the Muckleshoot Indian Tribe of the Muckleshoot Reservation Washington states that the Tribal Council shall have the power “[t]o promulgate and enforce ordinances… providing for the maintenance of law and order and the administration of justice by establishing a court system and defining its duties and powers.” As this paragraph makes clears, the Muckleshoot Constitution does not create a tribal court of general jurisdiction, but vests in the Tribal Council the power to create a court and expressly define its duties and powers through the passage of tribal ordinances. It follows that the tribal court, once created, only has those powers defined by the Tribal Council in the ordinances that the Council promulgates. A court of limited jurisdiction is a court whose jurisdiction is confined to particular types of cases or actions set by statute or ordinance. Accordingly, the Muckleshoot Constitution vests in the Tribal Council the power to create a court of limited jurisdiction.
The Tribal Council exercised its power to create a court of limited jurisdiction in Section 1.01.01 of the Muckleshoot Tribal Code (hereinafter MTC). Section 1.01.01, entitled Establishment of Court, states “[t]here is hereby established for the Muckleshoot Reservation a court to be known as the Muckleshoot Court of Justice hereinafter referred to as the Muckleshoot Court of Justice and the Court.” In the very next section, the Tribal Council emphasized the limited jurisdiction of the court established. MTC 1.02.01, entitled Muckleshoot Jurisdiction Defined, states that “the Court shall have exclusive jurisdiction to enforce all ordinances of the Muckleshoot Indian Tribe as provided in these ordinances and as further set forth herein [referring to the Muckleshoot Tribal Code], except when this Code places jurisdiction in a Tribal administrative body.” As the Tribal Code is simply the codification of ordinances passed by the
13 NICS App. 43, J.I. and E.I. v. MPC, et al. (July 2015) p. 45
Tribal Council, this section makes clear that consistent with the Muckleshoot Constitution, the powers of the Muckleshoot Court of Justice are circumscribed and defined by the ordinances of the Tribal Council. See, e.g., MTC 12.03.040 and former MTC 12A.01.040 (evidencing this understanding by limiting Tribal Court jurisdiction “in accordance with tribal priorities and resources.”) Accordingly, the Muckleshoot Court of Justice is a court of limited jurisdiction.
As a court of limited subject matter jurisdiction, the Muckleshoot Court of Justice has subject matter jurisdiction over a particular action sounding in tort only if an ordinance of the Muckleshoot Tribal Council grants the Muckleshoot Court of Justice subject matter jurisdiction over that kind of action. Thus, to resolve the issue presented by this appeal, we must ascertain whether the Muckleshoot Tribal Council has enacted any ordinance that grants the Muckleshoot Court of Justice subject matter jurisdiction over an action for battery sounding in tort against a private individual in his or her personal capacity.
II. No ordinance of the Tribal Council grants the Tribal Court jurisdiction over an action for battery sounding in tort against a private individual.
A review of the Muckleshoot Tribal Code reveals that there are only two ordinances that grant the Court jurisdiction over actions sounding in tort. The first ordinance is the only ordinance that grants the Tribal Court jurisdiction over an action sounding in tort against a private individual. Sections .070 and .080 of the Nuisance Ordinance (Ordinance No. C77, enacted March 23, 2000), read together, grant the Tribal Court jurisdiction over a common law nuisance action brought against a private individual as defendant.
The second ordinance grants the Tribal Court jurisdiction over actions sounding in tort brought by a patron of a Tribal enterprise against the Muckleshoot Tribe. Ordinance No. 07-069, enacted February 16, 2007, and codified as MTC 01.02.02, states in relevant part that “the Muckleshoot Court of Justice shall have exclusive jurisdiction over actions for monetary damage awards initiated against the Muckleshoot Indian Tribe by any patron of a Tribal Enterprise for any injury to that person caused by . . . an act or omission by the Tribe”. Thus, while the Tribal Court has subject matter jurisdiction over a variety of tort actions that may be brought against the Muckleshoot Tribe, the only tort action against a private individual over which it has subject matter jurisdiction is a nuisance action.
Beyond the jurisdictional provisions in Ordinances Nos. C77 and 07-069, there are other sections of the Muckleshoot Tribal Code that address ancillary matters related to tort actions against the Tribe and a nuisance action against a private individual. These sections address such matters as sovereign immunity, statute of limitations and choice of law. Regarding the latter, it is important to recognize that provisions addressing choice of law and decisional authority do not extend the subject matter jurisdiction of the Tribal Court, but merely indicate the sources of law that the Tribal Court may use to adjudicate cases over which it already has subject matter jurisdiction. For example, section 9.04.01 of the Muckleshoot Tribal Code, entitled Decisional Authority, states in relevant part that
13 NICS App. 43, J.I. and E.I. v. MPC, et al. (July 2015) p. 46
In cases otherwise properly before the Trial and Appellate Courts of the Muckleshoot Tribe, decision on matters of both substance and procedure will be based on the following, in the following order of precedent[sic]:
(1) The Constitution and Bylaws of the Muckleshoot Tribe;
(2) Statutes of the Muckleshoot Tribe;
(3) Resolutions of the Muckleshoot Tribe;
(4) Customary law, Customs, traditions and culture of the Muckleshoot Tribe;
(5) Laws, rules and regulations of the United States, States, and Indian tribes and cases interpreting such laws, rules and regulations;
(6) The Common Law.
This provision authorizes the Tribal Court to use various sources of law in a particular order of precedence when adjudicating cases properly before it. Thus, when adjudicating a case for which the Muckleshoot Constitution provides a rule of decision, the Court is to use that constitutional rule to decide the case rather than a statute (i.e., ordinance) of the Tribal Council. Similarly, when neither the Constitution, nor the ordinances, nor resolutions of the Muckleshoot Tribe provides a rule of decision for a particular case, then the Court must use the customs and traditions of the Muckleshoot Tribe to decide the case rather than the laws of the United States or the Common Law. Only when no tribal source of law provides a rule of decision may the Court use a law of the United States or a Common Law rule to decide the case before it.
While section 9.04.01 permits the Court to use a law of the United States or a Common Law rule when no Tribal source of law provides a rule of decision, it is important to realize that this provision does not grant the Tribal Court subject matter jurisdiction to hear any and all cases that could be brought under the laws of the United States or the Common Law. This provision states only that when no tribal source of law provides a rule for deciding a case properly before it, then and only then may the Court use a law of the United States or a Common Law rule to decide it. That this provision is a choice of law provision and not a jurisdictional grant is made clear by its first 14 words: “In cases otherwise properly before the Trial and Appellate Courts of the Muckleshoot Tribe”. A case is not “properly before the Trial and Appellate Courts of the Muckleshoot Tribe” unless the Court has jurisdiction over that case. In other words, jurisdiction over a case is a condition precedent to the application of this provision and not a result of applying it. Thus, section 9.04.01 does not grant the Court subject matter jurisdiction over a common law battery against a private individual or any other type of case.
A similar conclusion must be drawn regarding section 1.02.03 of the Muckleshoot Tribal Code. Section 1.02.03, like section 9.04.01, is a choice of law provision and not a jurisdictional grant. Section 1.02.03 supplements section 9.04.01. It states that when adjudicating an action sounding in tort, when no Tribal source of law provides the rule of decision, then the Tribal Court may use certain Common Law rules to decide the case. The section then lists the Common Law rules that may be used to decide such a case by referring to the sections expressing them in
13 NICS App. 43, J.I. and E.I. v. MPC, et al. (July 2015) p. 47
the American Law Institute’s Restatement of Torts (Second). Like section 9.04.01, this section only applies to cases over which the Court already has subject matter jurisdiction. It does not grant the Tribal Court subject matter jurisdiction over any case that could be decided using the rules expressed in the enumerated sections of the Restatement of Torts (Second). Section 1.02.03 states in relevant part that
The Muckleshoot Tribal Courts shall apply the tribal custom and applicable substantive laws and ordinances of the Muckleshoot Tribe to all civil tort actions, provided that where no applicable Muckleshoot tribal law can be found, the Courts may utilize the enumerated sections of Restatement of Torts 2nd as follows: . . . .
This section clearly presupposes that the Court already has subject matter jurisdiction over some tort actions and requires the Court to apply Tribal sources of law to decide those cases. The section then contemplates the possibility that in a tort case over which it already has jurisdiction, Tribal sources of law may not provide a rule of decision. Under those circumstances, the section permits the Court to decide such a case using Common Law rules taken from the enumerated sections of the Restatement of Torts (Second). Similar to section 9.04.01, jurisdiction over a tort case is a condition precedent to the application of this section and not a result of applying it. Thus, also like section 9.04.01, section 1.02.03 does not grant the Court jurisdiction over a common law battery against a private individual or any other case sounding in tort.
In light of the foregoing, we conclude that the Tribal Court does not have subject matter jurisdiction over an action for battery sounding in tort against a private individual.
The Dissent claims that the Muckleshoot Tribal Court is a court of general jurisdiction. The Dissent offers two arguments for this claim. First, the Dissent argues that MTC 1.02.03
grants the Tribal Court authority to adjudicate the causes of action expressly listed in 1.02.03, including “Freedom from Harmful Bodily Contact,” and “Freedom from Offensive Bodily Contact,” and “Freedom from Emotional Distress.” By incorporating and expressly naming these causes of action from the Restatement (Second) of Torts, the Tribal Council granted the Court jurisdiction to hear these types of causes of action.
Here, however, we must respectfully disagree. The Dissent has misconstrued MTC 1.02.03, a choice of law provision, as an affirmative grant of subject matter jurisdiction. Only two provisions in the Tribal Code grant the Tribal Council subject matter jurisdiction over actions sounding in tort. MTC 1.02.02 grants the Tribal Court subject matter jurisdiction “over actions for monetary damages against the Muckleshoot Indian Tribe by any patron of a Tribal Enterprise” and the Nuisance Ordinance, Ordinance No. C77, enacted March 23, 2000, grants the Tribal Court subject matter jurisdiction over nuisance actions against a private individual. MTC 1.02.03, in contrast, merely states what law the Tribal Court should apply in such actions. Under
13 NICS App. 43, J.I. and E.I. v. MPC, et al. (July 2015) p. 48
MTC 1.02.02, the Tribal Court is granted subject matter jurisdiction to hear many different “actions for monetary damages against the Muckleshoot Indian Tribe”, including actions for harmful bodily contact, offensive bodily contact, apprehension of a harmful or offensive bodily contact, wrongful confinement, emotional distress, trespass to chattels, conversion, trespass to land, standard negligence, contributory negligence, reckless disregard of safety, abnormally dangerous activities, fraudulent misrepresentation, wrongful concealment and nondisclosure, and defamation. MTC 1.02.03 simply states that when adjudicating such lawsuits, the Tribal Court shall apply “tribal custom and applicable substantive laws and ordinances of the Muckleshoot Tribe of Indians”, but “where no applicable Muckleshoot tribal law can be found, the Courts may utilize the enumerated sections of Restatement of Torts (Second).” Thus, it is no coincidence that the sections of the Restatement of Torts enumerated in MTC 1.02.03 are exactly those sections of the Restatement that provide a rule of decision for adjudicating the actions for monetary damages that MTC 1.02.02 allows a patron of a Tribal Enterprise to bring against the Tribe. Indeed, the only section of the Restatement enumerated in MTC 1.02.02 that do not provide a rule of decision for adjudicating actions for monetary damages brought against the Tribe alone concerns nuisance, and this enumerated section of the Restatement may be applied to an action for nuisance against a private individual over which the Tribal Court has subject matter jurisdiction under the Nuisance Ordinance. Thus, the inclusion of the Restatement section on nuisance, also explains the use of the phrase “all tort actions” in MTC 1.02.03: insofar as the Nuisance Ordinance and MTC 1.02.02 are currently the only provisions of the Tribal Code that grant the Tribal Court subject matter jurisdiction over actions sounding in tort, MTC 1.02.03 directs the Tribal Court which laws and customs to apply “to all civil tort actions” over which it has subject matter jurisdiction.
This leaves only the Dissent’s claim that MTC 1.02.01 is ambiguous and must be interpreted in light of the Preamble to the Muckleshoot Tribal Code. Here two points need to be made. First, MTC 1.02.01 is not ambiguous. The provision states that “the Muckleshoot Court of Justice shall have exclusive jurisdiction over all offenses in this Code . . . [and] shall have exclusive jurisdiction to enforce all ordinances of the Muckleshoot Tribe as provided in these ordinances . . . .” The first part of this provision grants the Tribal Court subject matter jurisdiction over all criminal offenses in the Tribal Code. Title 5 of the Tribal Code is entitled “Criminal Offenses” and includes the following chapters: Offenses Against Public Peace (5.3), Offenses Against Public Safety (5.4), Offenses Against Public Morals (5.5), Offenses By Or Against Public Officers And Government (5.6), Offenses Against Persons (5.7), and Offenses Against Property (5.8), Offenses Against By Or Against Minor Children (5.9), Offenses To Animals (5.10), Anticipatory Offenses (5.11), and Miscellaneous Offenses (5.12). Clearly, in the Muckleshoot Tribal Code the word ‘offenses’ unambiguously refers to “criminal offenses”. Nor does the adjective ‘exclusive’ render the word ‘offenses’ ambiguous: MTC 1.02.01 clearly states that “with respect to all offenses enumerated in this Code, when state or federal courts have any jurisdiction over those offenses, the Court shall have concurrent jurisdiction over those offenses.” The Tribal Council obviously added this sentence to the ordinance to take account of U.S. Supreme Court cases recognizing circumstances under which federal and state courts may have jurisdiction over criminal offenses in Indian Country. While the Dissent claims that U.S.
13 NICS App. 43, J.I. and E.I. v. MPC, et al. (July 2015) p. 49
Supreme Court cases such as Oliphant v Suquamish Indian Tribe, 435 U.S. 151 (1978), render ambiguous the term “offenses” in the phrase “exclusive jurisdiction over offenses”, in fact just the opposite is true: Oliphant v. Suquamish Indian Tribe together with the latter sentence clarifying the concurrent jurisdiction of the Tribal Court over offenses demonstrates that the term ‘offenses’ unequivocally refers to “criminal offenses”. If it did not, there would be no reason to add the latter sentence on concurrent jurisdiction.
The second point to be made about the Dissent’s claim that MTC 1.02.01 is ambiguous and must be interpreted in light of the Preamble to the Muckleshoot Tribal Code concerns the Preamble itself. Even if, arguendo, the term “offenses” is ambiguous, the Preamble neither requires nor even suggests that the Tribal Court is a court of general jurisdiction. The Preamble states, in relevant part, that “the following Code . . . [is] enacted to provide a system of Criminal Justice, law enforcement and resolution of civil disputes for the Muckleshoot Indian Tribe . . . .” Insofar as the Preamble states that the Tribal Code was enacted to provide a system of Criminal Justice as well as to resolve civil disputes, the Preamble is consistent with interpreting the term ‘offenses’ as referring to “criminal offenses” and does not require or suggest that the word ‘offenses’ should be read to mean “criminal offenses and civil wrongs” (i.e., torts). Nor does the Preamble otherwise suggest that the Tribal Court is a court of general jurisdiction. Significantly, the Preamble states only that the Tribal Code is enacted, inter alia, to resolve “civil disputes”. In English, a plural noun used without the word ‘all’ preceding it means “some”, not “all”. Thus, the phrase ‘resolution of civil disputes’ in the Preamble must be interpreted to mean “the resolution of some civil disputes”. While resolving some civil disputes is logically compatible with resolving all civil disputes (i.e., the sentence “if the Tribal Code is enacted to resolve all civil disputes, then it is enacted to resolve some civil disputes” is true), it does not follow that if the Tribal Code is enacted to resolve some civil disputes, then it is enacted to resolve all civil disputes. In other words, it is not true that if the Tribal Court is granted subject matter jurisdiction over some civil disputes, then it has jurisdiction over all civil disputes.
For the foregoing reasons, we do not find the Dissent’s arguments persuasive and hold that the Muckleshoot Tribal Court is a court of limited jurisdiction.
As the Muckleshoot Tribal Court is a court of limited jurisdiction and no provisions of the Muckleshoot Tribal Code grant the Tribal Court subject matter jurisdiction over the present action, the judgment of the Tribal Court dismissing the present action against the Respondent is affirmed, and the matter is remanded to the Court of Justice for further proceedings consistent with this Opinion.
Miller, C.J., dissenting:
I respectfully dissent.
13 NICS App. 43, J.I. and E.I. v. MPC, et al. (July 2015) p. 50
The Preamble to the Muckleshoot Tribal Code of Laws, Title I, Muckleshoot Court of Justice, states:
The following Code relative to the people, property, resources, and territory of the Muckleshoot Indian Reservation [is] enacted to provide a system of Criminal Justice, law enforcement and resolution of civil disputes for the Muckleshoot Indian Tribe of the Muckleshoot Indian Reservation and all the persons, property, resources, and territory subject to its jurisdiction. (Emphasis added.)
The Muckleshoot Constitution states: “The jurisdiction of the tribe shall include all the territory within the original confines of the Muckleshoot Reservation . . . .” Art. I, sec. 2 (emphasis added). And Art. I, sec. 3 adds: “The Muckleshoot Indian Tribe shall have jurisdiction over: a. All persons within the territory of the Muckleshoot Indian Reservation . . . .” (Emphasis added).
As the majority correctly notes, the Tribal Council is authorized by the Constitution to create a court system and to define “its duties and powers.” Art. VI, sec. 1(k). Thus, we are faced with the question of whether the Tribal Council authorized the Tribal Court to hear the causes of action pleaded in this case in regards an alleged child sexual assault.
For the following reasons, I believe the Tribal Court has jurisdiction to hear this case.
1. Muckleshoot Tribal Code 1.02.03 expressly recognizes that the Tribal Court can hear causes of action like those alleged in this case, and also references “all civil tort actions.”
Per ordinance 1.02.01, the Court has jurisdiction to enforce all tribal ordinances. In my opinion, 1.02.03 is an ordinance that grants the Tribal Court authority to adjudicate the causes of action expressly listed in 1.02.03, including “Freedom from Harmful Bodily Contact,” and “Freedom from Offensive Bodily Contact,” and “Freedom from Emotional Distress.” By incorporating and expressly naming these causes of action from the Restatement (Second) of Torts, the Tribal Council granted the Court jurisdiction to hear these types of causes of action.
The Majority holds that 1.02.03 is only a choice of law provision (I recognize that the title of 1.02.03 says “Applicable law”), and apparently assumes that it applies only to ordinance 1.02.02, which authorizes lawsuits versus tribal government for “any patron of a Tribal Enterprise.” But there is no language in ordinance 1.02.03 that limits its application to just ordinance 1.02.02. In fact, it says it applies “to all civil tort actions.”
2. Ordinance 1.02.01 is ambiguous, in my opinion, and thus we must examine the legislative history of the ordinance, as stated in the Preamble to the Tribal Court Code, to understand what the Tribal Council intended in 1.02.01. In fact, the best form of legislative history is a preamble. See Towle v. Wash. State Dep’t of Fish & Wildlife, 971 P. 2d 591, 94 Wash. App. 196, 207 (Wash. Ct. App. 1999) (“The fundamental objective of statutory
13 NICS App. 43, J.I. and E.I. v. MPC, et al. (July 2015) p. 51
construction is to ascertain and to carry out the Legislature’s intent.); Rozner v. Bellevue, 116 Wash.2d 342, 347, 804 P.2d 24 (1991). Courts should adopt the interpretation which best advances the legislative intent. Rozner, 116 Wash.2d at 347, 804 P.2d 24. The preamble or statement of intent can be crucial to interpretation of a statute. Spokane County Health Dist. v. Brockett, 120 Wash.2d 140, 151, 839 P.2d 324 (1992).”). See also In re Objections to Tax Levies of Freeport School District No. 145, 372 Ill.App.3d 562, 582 (Ill. Ct. App. 2007) (“Although a preamble is not itself a part of the act, “[a] preamble has long been recognized as one of the quintessential sources of legislative intent. Atkins v. Deere & Co., 177 Ill.2d 222, 232, 226 Ill.Dec. 239, 685 N.E.2d 342 (1997).”). A preamble is the best way to discern the intent of a legislature because it often states exactly why the ordinance was enacted. In re Objections, at 582 (“Further, it ‘constitutes a stronger expression of intent than does a passing comment made by a single legislator during legislative debates.’ Atkins, 177 Ill.2d at 232–33, 226 Ill.Dec. 239, 685 N.E.2d 342.”).
By considering the Muckleshoot Tribal Court Code Preamble in this case, I believe that the Tribal Council created the Tribal Court with jurisdiction over “the people . . . and territory of the Muckleshoot Indian Reservation and for the “resolution of civil disputes for . . . all the persons, . . . and territory subject to its jurisdiction.” (Emphasis added.)1
We are required to use the Preamble because ordinance 1.02.01 is ambiguous.
First, ordinance 1.02.01 grants the Court jurisdiction to hear “offenses enumerated in this Code.” But the ordinance does not define what an offense is. Is “offense” just criminal activity, as it might be reasonable to assume? Or is it also reasonable to conclude that an “offense” can include the child sexual abuse alleged in this case? Cf. Title 12, Muckleshoot Child and Family Welfare Ordinance (this Title primarily addresses child custody, adoption, and foster care issues but it was enacted because child “safety and welfare is of paramount importance to the Tribe.” Ordinance 14-040, To Adopt a Revised Title 12 Child and Family Welfare Ordinance).
Second, the ordinance is ambiguous because the first sentence incorrectly states the law when it claims the Tribal Court has exclusive jurisdiction over offenses. That is incorrect if the word “offenses” means crimes. Under U.S. Supreme Court caselaw the Tribe cannot have exclusive jurisdiction over every crime that occurs on the reservation. See, e.g., Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); United States v. McBratney, 104 U.S. 621 (1882).
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Third, Ordinance 1.02.01 is also internally inconsistent and ambiguous because the last sentence of the second paragraph expressly contradicts the first paragraph.
Fourth, the ordinance is ambiguous because it does not clearly and expressly limit the Tribal Court’s jurisdiction, so we do not know for certain what the Council intended. To my mind, 1.02.01 is ambiguous because I start with a presumption that when a general jurisdiction government, such as the Muckleshoot Indian Tribe, creates a court system, that the court is also of general jurisdiction unless a tribal council expressly limits the court’s jurisdiction. In my opinion, there is not a single word of limitation on the court’s jurisdiction in 1.02.01 (I realize that the title to that section says “Jurisdiction Defined”), but for me, that title is insufficient direction from a tribal council of general jurisdiction that it intended to create a court of limited jurisdiction.
An ordinance is ambiguous when reasonable minds differ as to its meaning. In my opinion, ordinance 1.02.01 is ambiguous. Consequently, we must look to the Preamble and its clear statement that the Tribal Court should have jurisdiction over the child sex abuse claims alleged in this case.
The Majority’s interpretation of Muckleshoot law forces these plaintiffs to seek justice in state or federal courts. In contrast, I would hold that the Muckleshoot law at issue in this case allows the Tribal Court to hear the case. I dissent.
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.
Notes to the majority opinion:
The captions of the Notice of Appeal, opening brief, and every pleading filed and every order issued in the court below misspell Pentecostal, although Pentecostal is for the most part spelled correctly in the bodies of those documents. Out of respect to the church, this Court has corrected the spelling in the caption here.
It is important to note from the outset that this appeal involves only the dismissal of claims against K.M.W. and C.W. alleging negligence and failure to report. There are no allegations whatsoever that K.M.W. or C.W. perpetrated or participated in the alleged assault that is at the heart of the complaint against the various defendants named in this suit.
Notes to the dissenting opinion:
The Majority opinion focuses on the placement of the word “all” in the Preamble. But the word “all” is used when the Tribal Council created the Tribal Court to “provide a system of…resolution of civil disputes for… all the persons….and territory subject to its jurisdiction.” (Emphasis added). In addition, and very significantly, the word “its” in that sentence, just before the word jurisdiction, refers back to the Tribal Council exercising its constitutional jurisdiction over the Muckleshoot Indian Reservation when it created the Court. As already noted, the Tribe’s Constitution provides the Tribe with jurisdiction over “all the territory within the original confines of the Muckleshoot Reservation” and “over: a. All persons within the territory of the Muckleshoot Indian Reservation….” Art. I, sec. 2 & 3 (emphasis added). I would hold that the Preamble tells us that the Tribal Council created the Tribal Court with all the jurisdiction that the Tribal government possesses under the Muckleshoot Constitution.