13 NICS App. 65, WOODRUFF v. JACOBSON (December 2015)
IN THE QUILEUTE TRIBAL COURT OF APPEALS
QUILEUTE INDIAN RESERVATION
LA PUSH, WASHINGTON
Charles “Chas” Woodruff, Petitioner/Appellant,
v.
Naomi Jacobson, Justin “Rio” Jaime and Crystal Lyons, Respondent/Appellee.
NO. 15-CI-027 (December 21, 2015)
(Reconsideration Withdrawn, January 19, 2016)
SYLLABUS*
Appellant argued a re-vote that removed him as chairman of the tribe was unconstitutional and requested court to recognize existence of capacity suits against officials of the tribe in this matter. Tribal court dismissed action for lack of subject matter jurisdiction due to tribe’s sovereign immunity. Court of Appeals found that capacity suits not appropriate for this matter as the actions that caused appellant’s injury were taken by the tribal council rather than individual officials of the tribe. The Court of Appeals affirmed the tribal court’s dismissal and went on to suggest that the remedy of any unfavorable actions by the tribal council in this matter should be addressed through the political process due to the tribe’s sovereign immunity.
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Before: |
Lisa L. Atkinson, Chief Judge; John E. Gibson, Judge; Gregory M. Silverman, Judge. |
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Appearances: |
Gabriel S. Galanda, Galanda Broadman, PLLC for Appellant; Phillip Katzen, Kanji & Katzen PLLC and Thomas P. Schlosser, Morisset Schlosser Jozwiak & Somerville for Appellees. |
OPINION
Silverman, J.:
13 NICS App. 65, WOODRUFF v. JACOBSON (December 2015) p. 66
The instant appeal arises from the dismissal of an action brought against three members of the Quileute Tribal Council for lack of subject matter jurisdiction due to sovereign immunity. For the reasons set forth below, this Court affirms the Order of the Tribal Court below.
I.
Appellant Charles Woodruff was elected to the Quileute Tribal Council by the General Council of the Quileute Tribe on January 16th, 2015. On January 22nd, 2015, the Election Board advised the Tribal Council of the Preliminary Results of the election pursuant to the 2015 Rules and Regulations of the Election Board and transmitted these results to the Quileute Tribal Council. Later that day, the Quileute Tribal Council certified the election results and Mr. Woodruff was sworn in as a member of the Quileute Tribal Council. That same day, the Quileute Tribal Council elected Mr. Woodruff chairman of the Tribal Council.
Approximately three weeks later, on February 19th, 2015, tribal member Fern Penn submitted a petition to the Tribal Council entitled “Petition to Reopen 2015 Elections with Incorrect Names after this meeting to be in working 15 days” (the “Petition”). The Election Board recommended that the Tribal Council construe this Petition as a petition to call a general tribal meeting under Article VI, Section 2, Paragraph 2 of the By-laws of the Quileute Tribe of the Quileute Reservation. The Election Board also certified that the Petition had the required number of signatures under this provision of the By-laws. At the Tribal Council meeting, a motion to accept the Petition failed for lack of a second. Following the failure of the motion to accept the Petition, Councilperson Rio Jaime moved to request the Quileute Tribal Chairman to hold a special meeting no less than 15 days from [March 6th, 2015] to address concerns in the petition regarding election process held on January 16, 2015”. This motion was seconded by Councilperson Crystal Lyons. Of the five members of the Tribal Council present, only two councilpersons voted for the motion. Nonetheless, the motion passed because of the three other councilpersons present, one did not vote and two abstained, i.e., the majority of the votes actually cast constituted a majority.
As a result of the motion made by Councilperson Rio Jaime (and not the Petition presented by Fern Penn, which was never accepted by the Tribal Council), a special general council meeting was convened on March 6th, 2015. The official notice for this special general council meeting stated that
Based on delivery of a petition with 125 valid signatures, a Special General Counsel will be held for the membership to address one agenda item:
Shall a re-vote be conducted of the January 16, 2015 election, with corrected ballots and otherwise in accordance with the 2015 Election Rules and Election Ordinance?
If a majority of the eligible tribal members votes yes at this meeting, the Election Board will conduct a re-vote on the candidates listed on the January 16, 2015 ballot immediately following the conclusion of the meeting. The Election Board and Tribal Council will then process the results in accordance
13 NICS App. 65, WOODRUFF v. JACOBSON (December 2015) p. 67
with the Quileute Constitution and Bylaws, the Election Ordinance and the 2015 Election Rules.
If a majority of the eligible tribal members votes no at this meeting, no re-vote will occur and the results of the January 16, 2015 election will stand.
At the special General Council meeting, the General Council voted yes on the question presented, and following that meeting, the Election Board conducted a re-vote for the two seats on the Tribal Council that had been the positions at issue in the January 16th election. Mr. Woodruff came in third, losing his seat on the Tribal Council. On March 12, 2015, the Tribal Council certified the results of the March 6th re-vote, and James Jackson Sr. and Naomi Jacobson were sworn in as members of the Quileute Tribal Council.
Under the Quileute Election Ordinance, the Election Board has jurisdiction to “resolve any election disputes” and on April 13th, 2015, Mr. Woodruff filed a petition with the Election Board, requesting it to declare the March 6th re-vote void because it was unconstitutional. On June 25th, 2015, the Election Board issued its decision that the re-vote was unconstitutional and void, declaring that Mr. Woodruff “was validly elected as a member of the Quileute Tribal Council at the annual General Council meeting Tribal Council election on January 16, 2015, pursuant to the Quileute Constitution, Election Ordinance, and Board Election Rules.” The Election Board further stated that the “purported March 6, 2015 “new” or “re-vote” election . . . did not remove Charles ‘Chas’ Woodruff from his elected office as a Tribal Council member, and he continues to serve in his office as Quileute Tribal Council member as a matter of law.” On June 29th, 2015, the Tribal Council refused to accept and follow the decision of the Election Board. In a two-sentence letter to the Quileute Tribal membership on that date, the Tribal Council justified its refusal to honor the decision of the Election Board by stating that “because the board is a subordinate body and because an objective evaluation was not conducted, it is the concurrence of the Tribal Council to decline acceptance of the board’s recommendation.” It is unclear from the letter why the Tribal Council characterized the Election Board’s decision pursuant to its power to resolve election disputes under the Election Ordinance as a “recommendation”.
Mr. Woodruff unsuccessfully attempted to resume his membership on the Tribal Council in June and early July, and filed the complaint in the present action on July 9th, 2015. The Tribal Court dismissed the action on August 28th, 2015 for lack of subject matter jurisdiction. The present appeal followed.
II.
A federally-recognized Indian tribe is a sovereign nation. The sovereignty of an Indian tribe resides in its people, the members of the tribe. While the members of a tribe might govern themselves directly, making every decision collectively like the Athenians in Ancient Greece, for reasons of convenience and efficiency, most sovereign people embrace the governmental processes of representative democracy, writing and adopting a constitution in order to delegate a
13 NICS App. 65, WOODRUFF v. JACOBSON (December 2015) p. 68
limited subset of their sovereign powers to one or more governing bodies. On November 11, 1936, the Quileute People chose this second path, adopting the Constitution and By-Laws of the Quileute Tribe of the Quileute Reservation.
An incident of sovereignty is immunity to lawsuits: a sovereign cannot be sued in a court of law without its permission. Tribal, state and federal courts have long recognized that Indian tribes enjoy this immunity from lawsuits. Moreover, it is also recognized that to the extent that the sovereign people of a tribe delegate the exercise of their sovereign powers to a governing body, that governing body too enjoys immunity from lawsuits. Thus, it is an undisputed principle of law that an Indian tribe and its governing bodies cannot be sued without their consent. Indeed, the governing bodies of a tribe cannot be sued without their consent even when it is clear that their actions are unconstitutional—that is, even when it is clear that a governing body of the tribe, such as a tribal council, has exercised powers not delegated to it by the sovereign people of the tribe. Chemehuevi Indian Tribe v. California State Board of Equalization, 757 F.2d 1047, 1052 (9th Cir.), rev’d on other grounds, 474 U.S. 9 (1985)(The governing body of a tribe “remains immune from suit regardless of any allegation that it acted beyond its authority or outside of its powers.”).
In addition to the tribe and its governing bodies, the doctrine of sovereign immunity even extends to individual officials of a tribe. Here, however, the immunity is more limited: the officials of a tribe enjoy sovereign immunity only so long as the officials are acting in their official capacity and within the scope of their authority. If an official takes actions outside of the scope of their authority, then that official is no longer acting for the sovereign and loses his or her immunity from suit.
When government officials lose their sovereign immunity, they may be sued in their official capacity for their ultra vires acts. Such lawsuits are called official capacity suits. The United States Supreme Court recognized the existence of capacity suits against federal officials in Ex Parte Young, 209 U.S. 123 (1908). Many states and Indian tribes have also recognized capacity suits against state and tribal officials respectively. For tribal capacity suits, see Chapo v. Navajo Nation, No. SC-CV-68-00 (Navajo 2004) and Stone v. Somday, 1 CCAR 9, ¶ 21 (Colville Confederated Court of Appeals, 1984). In the present appeal, the Appellant is asking this Court to recognize the existence of capacity suits against officials of the Quileute Tribe.
III.
A capacity suit provides a remedy for an injury that results from the actions of a government official when that official acts outside the scope of his or her lawful authority. When, however, the action that causes an injury is the action of a governing body of a sovereign people, rather than the action of an individual official, then a capacity suit will not lie. For example, in Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1268 (9th Cir. 1991), the Court affirmed the district court’s dismissal of a lawsuit against the Pala Band of Mission Indians for lack of subject matter jurisdiction and defendants’ sovereign immunity because
13 NICS App. 65, WOODRUFF v. JACOBSON (December 2015) p. 69
The complaint alleges no individual actions by any of the tribal officials named as defendants. As far as we are informed in argument, the only action taken by those officials was to vote as members of the Band's governing body against permitting Imperial to use the road. Without more, it is difficult to view the suit against the officials as anything other than a suit against the Band. The votes individually have no legal effect; it is the official action of the Band, following the votes, that caused Imperial's alleged injury.
The requirement of individual official action for a capacity suit, more than any other, determines our decision in this appeal.
The present matter is fraught with unconstitutional actions that have injured the Appellant. These actions, however, are all actions taken by the Tribal Council or the Election Board, rather than by individual officials of the Tribe. Once the Tribal Council certifies an election and the winners are sworn in as members of the Tribal Council, there are only two ways in which a councilperson may be removed from the Tribal Council prior to the expiration of their term. First, “[t]he Tribal Council may, by a four-fifths (4/5) vote of its total membership, expel any member for neglect of duty or gross misconduct, provided the charges are made in writing, subscribed by competent witnesses and formally served upon the accused at least five (5) days prior to a public hearing.” Constitution of Quileute Tribe, art. V, sec. 2. Second,
[u]pon a petition of at least one-third (1/3) of the eligible voters of the Quileute Tribe, it shall be the duty of the Tribal Council to call a special election to consider the recall of the member or members of the Council named in such petition. If a majority of those voting in such election shall vote in favor of such recall from office, the office shall be declared vacant, and the Tribal Council shall proceed in the usual manner to hold an election to fill the said office.
Constitution of Quileute Tribe, art. V, sec. 3.
In the present matter, Mr. Woodruff was removed from the Tribal Council through a third and unconstitutional process. The Tribal Council convened a special General Council meeting in order to vote on whether to have an unconstitutional re-vote.1 Following this special meeting, the
13 NICS App. 65, WOODRUFF v. JACOBSON (December 2015) p. 70
Election Board, as directed by the Tribal Council, conducted an unconstitutional re-vote of a vote that had already occurred and been certified. The Tribal Council then certified the results of this unconstitutional re-vote and improperly treated it as a constitutionally valid election.2 Finally, when the Election Board sought to invalidate this unconstitutional re-vote pursuant to its lawful authority under the Quileute Constitution and the Election Ordinance to resolve any election disputes, the Tribal Council improperly failed to acknowledge and honor the decision of the Election Board.3
While it is true that the actions by the Tribal Council were pursuant to votes cast by two of the individual Tribal officials named in the Complaint, if—to borrow the language of the Court of Appeals for the Ninth Circuit—the only action taken by those officials was to vote as members of the Tribe’s governing body, without more, it is difficult to view the suit against the officials as anything other than a suit against the Tribe. The votes individually have no legal effect; it is the official action of the Tribal Council, following the votes, that caused the Appellant’s injury.
Thus, even if we were inclined in an appropriate case to recognize the existence of capacity suits against officials of the Tribe, the present case is not an appropriate case in which to do so. The actions complained of in the present matter are actions taken by the Tribal
13 NICS App. 65, WOODRUFF v. JACOBSON (December 2015) p. 71
Council,4 and even if we allow that the actions taken by the Tribal Council were unconstitutional and involved the exercise of powers that the sovereign people of the Quileute Tribe had not delegated to it, still these unconstitutional actions were actions taken by the governing body of the Tribe and not the actions of individual officials. Accordingly, a capacity action in the present matter will not lie. If the people of the Tribe are unhappy with the votes of individual councilpersons, the remedy is through the political process, not the Tribal Court: individual councilpersons may be removed immediately by recall petition or at the next annual General Council meeting by not re-electing them.
For the foregoing reasons, the order of the Tribal Court is 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.
It is perhaps a curious, if legalistic, nuance that this entire controversy could have been avoided if Mr. Woodruff, then Chairman of the Tribal Council, had read the By-laws of the Quileute Tribe a bit more carefully. Article VI, Section 2 of the By-laws states that there are only two ways in which a special General Council meeting may be called. The first paragraph of Section 2 states that “[s]pecial general tribal meetings may be called by the Chairman of the Tribal Council provided that due notice is posted throughout the reservation at least fifteen days prior to such meetings.” Note the word ‘may’, the Chairman is not obliged to call such a meeting, even when requested to do so by a vote of the Tribal Council. The second paragraph of Section 2 provides the second method, it states that “one-third of the legal voters of the Tribe may at any time, by written petition call a general tribal meeting provided that at least fifteen days’ notice is posted throughout the reservation.”
In the present matter, the Tribal Council never accepted the petition presented by Fern Penn. The motion to accept the petition failed for lack of a second. Thus, the method used to call the special general meeting must have been the method contained in the first paragraph of Section 2. Strictly speaking, therefore, it was the Appellant, Mr. Woodruff, then Chairman of the Tribal Council, who called the special general council meeting that led to his ouster. If he had simply refused to call the special general tribal meeting, all of the ensuing unconstitutional actions and the injuries that they caused him, could have been avoided. Certainly, he would have been justified in refusing to implement the motion to call a special meeting to determine whether or not to have a re-vote since such a re-vote is patently unconstitutional under the Quileute Constitution and as Chairman he had taken an oath to uphold the Quileute Constitution.
The unconstitutional actions taken by the Tribal Council both before and after the unconstitutional re-vote are further reminders of why it is so important for a tribal council to have access to and to rely on competent legal advice.
The Tribe’s claim that it had the authority under Article VI, Section 1, Paragraph (r) of the Quileute Constitution to review and reject the Election Board’s decision is without merit. Paragraph (r) authorizes the Tribal Council “to delegate to subordinate boards . . . any of the foregoing powers, reserving the right to review any action taken by such board . . .” The phrase “foregoing powers” refers to the powers enumerated in Paragraphs (a) through (q) of section 1. This is made abundantly clear by the introductory language of section 1, which states that “the Tribal Council shall exercise the following powers” and then lists said powers in paragraphs (a) through (r). Moreover, the existence of powers attributed to the Tribal Council in subsequent articles of the Constitution further evidences that paragraph (r) was not intended to apply generally to all the powers of the Tribal Council, since the powers attributed to the Tribal Council in the articles following Article VI are clearly not comprehended in the phrase “the foregoing powers” (emphasis added). Since the Election Board is an Article IV board, not an Article VI board created by the Tribal Council for the purpose of delegating one or more of its Article VI powers, the Tribal Council does not have the power to review and reject the Election Board’s decisions resolving election disputes. Indeed, from a policy perspective, this constitutional limitation on the authority of the Tribal Council makes perfect sense: it is a fundamental requirement of due process that one not be the judge in one’s own case. As it is foreseeable that many election disputes will be about the election of individuals to the Tribal Council, it is essential to the integrity of the process that the Tribal Council not be a decision maker in resolving disputes over Tribal Council elections.
While the Election Board conducted the unconstitutional re-vote, this was done at the direction of the Tribal Council and it was the Tribal Council’s certification of it as a valid election that caused the removal of the Appellant.