14 NICS App. 1, KEMPF v. SNOQUALMIE TRIBE (May 2016)
IN THE SNOQUALMIE TRIBAL COURT OF APPEALS
SNOQUALMIE INDIAN RESERVATION
SNOQUALMIE, WASHINGTON
Marvin Kempf and Nina Repin, Petitioners/Appellants,
v.
The Snoqualmie Indian Tribe, Respondent/Appellee.
NO. SNO-CIV-0003-2015 (May 20, 2016)
SYLLABUS*
Tribe proposed amendments that would change enrollment criteria for membership in tribe. Appellants filed petition requesting declaratory relief. Appellants also filed injunction to prevent council vote on proposed amendments and requested tribal court supervise all future elections and genealogical processes for determining enrollment. Trial court denied requested injunction and dismissed petition, ruling the court lacked subject matter jurisdiction because tribe did not waive its sovereign immunity. Court of Appeals affirmed trial court’s ruling that tribe’s constitution and laws do not provide the court with the jurisdiction to adjudicate issues of enrollment, as well as the tribe did not provide a clear, explicit waiver of its sovereign immunity.
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Before: |
Cindy K. Smith, Chief Judge; Eric Nielsen, Judge; Randal E. Steckel, Judge. |
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Appearances: |
Josh Williams for Appellants; Rob Roy Smith for Appellees. |
OPINION
Nielsen, J.:
BACKGROUND
This appeal is from a Snoqualmie Tribal Court’s order dismissing the Appellants’ petition requesting declaratory relief. Appellants, both tribal members, requested the court order that (1) the Tribal Council comply with the Constitution; (2) all members must satisfy the constitutional criteria for enrollment; and (3) all amendments to the Snoqualmie Constitution void because there has been no accurate genealogy to determine membership. Appellants requested the
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affirmative relief that the court supervise all future elections and genealogical processes for determining enrollment. Petition p. 3.
Appellants also filed for an injunction. They asked the court to enjoin the General Council from voting on proposed amendments to the Snoqualmie Constitution. The effect of the proposed amendments would change the enrollment criteria for membership in the Tribe.
The court denied the requested injunction and dismissed the petition. The court ruled both were barred under the doctrine of sovereign immunity.
Appellants timely appealed the order dismissing their petition but not the order denying the injunction.
FACTS
The Snoqualmie Constitution identifies the criteria for enrollment in the Tribe. Aside from persons adopted or made honorary members, to become a member a person must appear on the 1919 Charles Roblin list of Snoqualmie members or be a descendant of a person on the Roblin list and possess one-eighth (1/8) degree of Snoqualmie blood. CONST. Art. 11 § 1 (a) and (b).1
On January 10, 2015, there was a special General Council2 meeting to address the issue of enrollment. At the meeting the Tribal Council3 presented four options to solve identified problems with the Tribe’s enrollment records. The General Council voted to proceed with one of the options and directed the Tribal Council to recommend amendments to the Tribe’s Constitution to implement the preferred option for a later vote by the General Council.4 Voting on the recommended amendments was held on August 15, 2015. 5
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On August 4, 2015, two tribal members, Marvin Kempf and Nina Repin, the Appellants, filed a "Petition for Declaratory Judgment Enforcing The Constitution" naming the Tribe as the Respondent. The petition is supported by a number of factual allegations.
The allegations relevant to the issues on appeal are that at the January 10 meeting, the Tribal Council reported that enrollment records showed altered family trees and blood quantum, and enrollment applications missing required signatures or resolutions. At that meeting the Tribal Council presented four options to “fix” the enrollment issue. The option selected to present to the General Council for a vote were constitutional amendments that would change the enrollment criteria. Under the proposed amendments, instead of the 1919 Roblin List, the 2004 membership list would be used as the new “base roll”, with the additional requirement that a person be a direct descendant from persons on the 2004 roll. The proposal also removed the 1/8 blood quantum requirement.
On August 11, 2015 Appellants filed an "Ex Parte Motion for Injunction Prohibiting Constitutional Amendments." The Motion requested the court enjoin the scheduled August 15, 2015, General Council vote on the proposed constitutional amendments and any future changes to the constitution until the court decided Appellants’ petition. Appellants argued that based on the Tribal Council’s report presented at the January 10 meeting, it was impossible to determine who is eligible for enrollment and who is not and, therefore, it "is impossible to hold a Constitutional vote to amend the Constitution.” Injunction Motion p. 3.
On August 12, 2015, the Tribe filed its “Response in Opposition to the Ex Parte Motion for Injunction Prohibiting Constitutional Amendments”, and a “Motion to Dismiss” Appellants’ petition. The Tribe argued the court was required to dismiss Appellants’ suit and deny their request for an injunction because the Tribe did not waive its sovereign immunity. The Tribe did not note its motion for a hearing.
On August 14, 2015, a day before the scheduled General Council vote on the proposed constitutional amendments, the court held a telephonic hearing. Counsel for the Tribe and Appellants presented argument. Counsel for Appellants also requested more time to respond to the Tribe’s motion to dismiss their petition, which was denied.6
The judge was troubled by the allegations. However, he denied the request to enjoin the General Council vote on the proposed constitutional amendments at the August 15, 2015 General Council meeting. The judge also granted the Tribe’s motion to dismiss the petition ruling that the court lacked subject matter jurisdiction because the Tribe did not waive its sovereign immunity.
STANDARD OF REVIEW
The Snoqualmie Tribal Code is silent on the standard of review of a
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Tribal Court’s decision. The parties agree that the court’s rulings on subject matter jurisdiction and tribal sovereign immunity are questions of law subject to de novo review on appeal. We too agree.
Where no Snoqualmie law governs an issue we are required to first look to persuasive and well-reasoned decisions from other tribal courts for guidance. In the absence of other tribal court decisions, we look to federal law and then state statutory law. Snoqualmie Tribal Code (STC) 3.1 § 11.0.
Tribal appellate courts uniformly apply the de novo standard of review to trial court rulings on tribal sovereign immunity and subject matter jurisdiction. See, Lomeli v. Kelly, 12 NICS App. 1, 6 (Nooksack Tribal Ct. of App. 2014) (on appeal from a trial court’s rulings on subject matter jurisdiction, tribal sovereign immunity and motions to dismiss a complaint review is de novo); Pendergrass v. Sauk-Suiattle Tribe, 11 NICS App. 52, 54 (Sauk-Suiattle Tribal Ct. App. 2013) (de novo review of a trial court’s denial of motion to dismiss on grounds of tribal sovereign immunity). That is consistent with the standard used by federal appellate courts. See, Wilson v. A.H. Belo Corp., 87 F.3d 393, 396 (9th Cir.1996) (existence of subject matter jurisdiction is a question of law subject to de novo review on appeal); Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006) (de novo review on appeal of issues of tribal sovereign immunity and subject matter jurisdiction).
We now hold that appellate review of a court’s orders on subject matter jurisdiction, tribal sovereign immunity and granting motions to dismiss a complaint is de novo. Because the court granted the motion to dismiss Appellants’ petition on sovereign immunity grounds we will review that ruling de novo.
DECISION
1. TRIBAL COURT JURISDICTION
Two requests for relief in Appellants’ petition---that the Tribal Court order the Tribal Council to comply with the Constitution and that members satisfy the criteria for enrollment---are too broad and vague to be meaningful without context.7 The context is found in the petition’s factual allegations. The petition alleges there are a number of current tribal members, including some current members of the Tribal Council, who do not meet the criteria for membership under Article 11 § 1 (a) and (b) of the Snoqualmie Constitution. That allegation is based on the January, 2015 report by the Tribal Council that 60% of the Tribe’s enrollment records showed the requisite blood quantum was either missing or altered.
Appellants assert there can be no legally valid vote on any amendments to the Snoqualmie Constitution because there is no accurate membership list, therefore presumably some members likely vote on an amendment may not be validly enrolled making them ineligible voters. This assertion relates to the request that the court order all constitutional amendments
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void, and that it supervises all future elections and genealogical processes to determine who is eligible for membership in the Tribe.
The lawsuit was brought against the Tribe and names the Tribe as the respondent.8 Petition p. 1. It is well-established that tribes enjoy a sovereign's common law immunity from suit. Pendergrass, 11 NICS App. at 55; Madison v. Tulalip, 6 NICS App. 212, 213 (Tulalip Tribal Ct. App. 2004); Kerr v. Muckleshoot, 6 NICS App. 36, 37 (Muckleshoot Tribal Ct. App. 2001); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Courts, including tribal courts, have held that a court may not entertain suits against a tribe unless Congress has authorized the suit or the tribe has waived its immunity. Pendergrass, 11 NICS App. at 55; Olson v. Nooksack, 6 NICS App. 49, 51 (Nooksack Tribe Ct. App. 2001); Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754 (1998).
The courts have also held “There is a strong presumption against waiver of tribal sovereign immunity.” Demontiney v. U.S., 255 F.3d 801, 811 (9th Cir. 2001). A congressional or tribal waiver of sovereign immunity must be clear, explicit and cannot be implied. Hostler v. Hoopa Valley Tribe, 10 NICS App. 14, 16 (Hoopa Valley Tribal Court of Appeals 2011); C&L Enterprises v. Citizen Band of Potawatomi Indian Tribe, 532 U.S. 411, 418 (2001); Santa Clara Pueblo, 436 U.S. at 58. A tribe’s immunity extends to suits for declaratory and injunctive relief. Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269, 1271 (9th Cir. 1991).
The weight of authority convinces us that generally the Snoqualmie Tribe’s sovereign immunity shields it from suits, including suits for declaratory and injunctive relief, unless the Tribe or Congress has unambiguously and expressly waived that immunity.
We have the duty and responsibility to interpret and construe the Snoqualmie Constitution and its laws. See, CONST. Art. X § 3 (“The Courts of the Snoqualmie Tribe shall have the power to: (a) Interpret, construe and apply the Constitution, laws and regulations of the Tribe.”). Our primary duty in interpreting a law or constitutional provision is to discern the intent of the drafters. Lomeli v. Kelly, 12 NICS App. 1, 10 (Nooksack Tribal Ct. App. 2014); Cummings v. K’ima: W Medical Center,12 NICS App. 79, 82, (Hoopa Valley App. Ct. 2014); Skokomish Indian Tribe v. Cultee, 8 NICS App. 68, 70 (Skokomish Tribal Ct. App. 2008). The starting point must always be the plain language and its ordinary meaning. Cultee at 70; see, Martin v. Hunter's Lessee, 14 U.S. 304, 326 (1816) (constitutional provisions are given their plain and ordinary meaning). Where the language is plain and unambiguous there is no room for judicial interpretation. Suquamish Tribe v. Lah-Huh-Bate-Soot, 4 NICS App. 32, 49 (Suquamish Tribal App. Ct. 1995).
Under Article 11 § 5 of the Snoqualmie Constitution membership is determined solely by the Tribal Council or General Council, and issues regarding membership are not justiciable in any court of law.
The Tribal Council or the General Council shall be the sole determinate of who is and who is not a member of the Snoqualmie Indian Tribe. Questions regarding membership,
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benefits of membership and banishment actions are matters within the exclusive internal sovereignty of the Snoqualmie Indian Tribe and not justiciable in any court of law. The requirements of this Article may be implemented through appropriate acts and resolutions of the Tribal Council.
CONST. Art. 11 § 5 (emphasis added).9
In 2004 the Tribal Council enacted the Snoqualmie Tribal Enrollment Act under its authority to adopt “appropriate acts and resolutions” to implement Article 11 § 5. STC 2-3. That Act provides rules and procedures for submitting enrollment applications, determining whether an applicant meets the criteria for enrollment, and establishes an Enrollment Committee consisting of three to five members of the Tribal Council. STC 2-3§ 11.0. It also authorizes the Tribal Council to remove a person from the membership roll if it is found the person is ineligible for enrollment. STC 2-3§ 12.0 (d) The pertinent language in the Act tracks Article 11 § 5 and provides that: “The Tribal Council or the General Council shall be the sole determinate of who is and who is not a member of the Snoqualmie Indian Tribe. Questions regarding membership, benefits of membership and banishment actions are matters within the exclusive internal sovereignty of the Snoqualmie Indian Tribe and not justiciable in any court of law.” STC 2-3§ 12.0 (g).10
Under the Snoqualmie Constitution and the Enrollment Act, issues regarding membership are within the sole authority of the Tribal Council or the General Council and are “not justiciable in any court of law.” We find the phrase “not justiciable in any court of law” unambiguous. “Justiciable” means “properly brought before a court of justice; capable of being disposed of judicially.” Black’s Law Dictionary, 7th Edition (1999) at 870. The ordinary meaning of “not justiciable in any court of law” as used in the Constitution is that the question or issue cannot be properly brought before any court, which necessarily includes the Tribal Court.11 Under the plain language of Article 11 § 5 and STC 2-312.0 (g) the Tribal Council and General Council have the sole authority to determine membership and the tribal court does not have subject matter jurisdiction to entertain a suit challenging the decision. Appellants’ petition directly raises issues regarding the determination of who is a member of the Tribe. Under the Constitution and Snoqualmie law, the Tribal Court does not have jurisdiction to adjudicate those issues.
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Appellants nonetheless contend that exercising the authority in Article 11 § 5 requires the Tribal Council or General Council to interpret the Tribe’s laws and Constitution. That under Article X § 112 of the Snoqualmie Constitution the Tribal Court that has the power and authority to decide all cases and controversies arising under the Constitution and the Tribe’s laws. They argue that constitutional provision confers jurisdiction on the Tribal Court to adjudicate their petition. Appellants also argue the Indian Civil Rights Act (ICRA) and the Tribe’s similarly worded provisions operates as a waiver of the Tribe’s sovereign immunity in favor of their suit. Appellants’ Br. p. 12. Appellants make three arguments to support their contentions.
First, Appellants argue that the right to petition for redress of grievances language in the Snoqualmie Constitution’s Bill of Rights operates as a limitation of the Tribe’s immunity from suit. That provision reads, “[T]he Snoqualmie Tribe shall not in exercising powers of self-government: 1. Make or enforce any law prohibiting...the right of the people peaceable to assemble and to petition for a redress of grievances.” CONST. Art. XI § 1 (l). The language is identical to the language in 25 U.S.C. § 1302 (I) (ICRA), and similar to the First Amendment of the United States Constitution.13 Specifically, Appellants argue the right to petition for redress of grievances is a “self-imposed limitation” on the Tribe’s immunity from a suit when brought by a tribal member in tribal court “when the Tribe fails to uphold and enforce its Constitution.” Appellants Br. p. 11.
Appellants rely on the holding in Hudson v. Hoh Tribe, 2 NIC App. 160 (Hoh Tribal Ct. App. 1992) to support their argument. We find Hudson is distinguishable from this case, and for other reasons that we explain below we decline to adopt its holding.
In Hudson, a Hoh tribal member and tribal employee was terminated from her employment with the Hoh Tribe. Hudson filed a grievance with Hoh Tribe’s Business Committee, its elected officials, under the Tribe’s Personnel Policies and Procedure Ordinance. The Business Committee affirmed Hudson’s termination. Hudson then filed a suit against the Tribe in the tribal court alleging wrongful termination. The tribal court dismissed the suit and Hudson appealed. Hudson, 2 NICS App. at 161-163. The Hudson court reversed the trial court’s decision and reinstated Hudson’s suit. Id. at 165.
The Hudson court identified the issue as whether the Hoh Tribe waived its immunity in favor of Hudson’s wrongful termination suit. The Hoh Tribe’s Constitution contains a right to petition clause similar to Article XI § 1 (l) of the Snoqualmie Constitution.14 The Hudson court reasoned, “Since under the terms of the Hoh Constitution, the right to petition for the redress of grievances is to be accorded the same protection as those rights enjoyed by citizens under the United States Constitution, this court is compelled to interpret the redress of grievances clause of
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the Hoh Tribal Constitution in the same manner as that right is interpreted by the United States Supreme Court under the First Amendment.” Id. at 163-164. The court relied on the 1972 Supreme Court case California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) for the legal proposition that the Supreme Court interprets the First Amendment right to petition for redress of grievances language to include a right of access to the courts. Id. at 164. The Hudson court held “Therefore, the right to petition for redress of grievances guaranteed to Hoh Tribal members in the Constitution of the Hoh Tribe must be read as a limitation upon any sovereign immunity that the Hoh Tribe may possess.” Id. at 164 (emphasis added).
We find Hudson is distinguishable. The Snoqualmie Constitution explicitly states membership decisions are within the exclusive authority of the Tribal Council and General Council and not justiciable in any court of law. The Hudson court does not identify any similar provision in the Hoh Tribe’s constitution that puts decisions terminating employment with the Hoh Tribe (the issue in Hudson) exclusively in the hands of the elected officials and divests its courts of jurisdiction over those decisions.
We also find the Hudson court’s analysis and reasoning unpersuasive. We therefore decline to adopt its holding.15
We believe the hallmark of tribal self-government is a tribe’s authority to make its own laws and to independently interpret and implement those laws. See, Puyallup Tribe v. VanEvery, 8 NICS App. 85, 89 (Puyallup Tribal. Ct. App. 2008) (tribal courts not bound by federal court interpretation of constitutional rights); Plummer v. Plummer, 17 Indian L. Rep. 6151 (Navajo 1990), (same); see also, Santa Clara Pueblo , 436 U.S. 49, 55 (1978) (Indian Civil Rights Act’s provisions need not have the same substantive meanings as their sister terms in the Bill of Rights because of the federal government’s goal to preserve "Indian self-government" and protect the "tribe's ability to maintain itself as a culturally and politically distinct entity."). It is our duty and authority to independently interpret the Snoqualmie Constitution and Snoqualmie laws. CONST. Art. X § 3.
The Hudson court held it was “compelled” to interpret the redress of grievances clause of the Hoh Tribal Constitution in the same manner as the similar First Amendment right is interpreted by the United States Supreme Court. We do not find any language in the Snoqualmie Constitution or its codes that requires the Tribe’s courts to adopt the Supreme Court’s interpretation of provisions in the United States Constitution that are similar to provisions in the Snoqualmie Constitution. Unlike the Hudson court we are not “compelled” to slavishly adopt a federal courts interpretation of similar federal constitutional or statutory provisions.
Even if we were compelled to interpret provisions in the Snoqualmie Constitution the same as federal courts interpret similar provisions in the United States Constitution, California Motor Transport Co., does not stand for the legal proposition the First Amendment right to petition clause limits or waives sovereign immunity, as the Hudson court claims. In California Motor Transport Co., one group of highway carriers (plaintiffs) filed a lawsuit against another group of highway carriers (defendants). The plaintiffs alleged, in part, that the defendants violated anti-trust laws by instituting state and federal proceedings, including rehearings, reviews
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and appeals from agency or court decisions, to resist and defeat the plaintiffs’ applications to acquire operating rights and those legal actions violated the federal anti-trust laws. California Motor Transport Co., 404 U.S. at 509. The Court ruled a party has the First Amendment right to petition for redress of grievances, which includes the right to access to courts, without violating the anti-trust laws, provided its actions are not a sham to cover an attempt to interfere directly with the business relationships of a competitor. Id. at 511-515. 16
Although the Court in California Motor Transport Co. noted the right to petition for redress of grievances included the right to access to courts it did hold that the right abrogates or limits sovereign immunity.17 Indeed, following its decision in California Motor Transport Co., the Supreme Court has repeatedly held that the government’s waiver of immunity must be unambiguously expressed and narrowly construed. Lane v. Pena, 518 U.S. 187, 192–93 (1996) (citations omitted); United States v. Mitchell, 445 U.S. 535, 538, (1980). It has also held waivers of sovereign immunity must appear with unequivocal clarity on the face of a statutory text. See, United States v. Nordic Village, 503 U.S. 30, 37 (1992) (“[T]he unequivocal expression of elimination of sovereign immunity that we insist upon is an expression in statutory text.”). And, where the language of a statute that is claimed waives immunity is ambiguous the statute is interpreted in favor of the sovereign. United States v. Williams, 115 S. Ct. 1611, 1616 (1995); Library of Congress v. Shaw, 478 U.S. 310, 318 (1986). If the right to petition redress of grievances clause in the First Amendment constitutes a waiver of immunity, or somehow limits sovereign immunity, then the law would not require the government expressly waive its immunity from suit before a federal court could entertain the suit. The decision in California Motor Transport Co., cannot be read to stand for the broad legal proposition that the constitutional right to petition for redress of grievances trumps the government’s immunity from suit, as the Hudson court asserts.18
Even if the right to petition clause in the Snoqualmie Bill of Rights includes the right to access to tribal court, logically and practically the right to access would prohibit the Tribe from taking actions that legally prevent a member from filing or adjudicating a valid non-frivolous legal claim, erect unreasonable barriers to a member’s ability to file or adjudicate a valid non-frivolous legal claim, or penalize a member for filing or adjudicating a valid non-frivolous legal claim.19 The right would not abrogate or somehow limit the Tribe’s sovereign immunity or confer subject matter jurisdiction.
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We hold any right to access to the Tribe’s courts, whether that right can be found in Article XI § 1 (l) or some other constitutional provision, is not and was not intended as an express and unambiguous waiver of or limitation on the Tribe’s immunity.20 We hold that any right to access to the Tribe’s courts does not confer subject matter jurisdiction for a suit brought by a tribal member, if under the Tribe’s constitution or laws, subject matter jurisdiction does not already exist.
Second, Appellants contend that Congress waived the Tribe’s immunity through passage of the ICRA right to petition provision, which is identical to the Snoqualmie Bill of Rights clause. We disagree.
In Santa Clara Pueblo v. Martinez, the issue was an equal protection claim against the Santa Clara Pueblo for discriminating for enrollment purposes 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 under ICRA’s equal protection clause. The Supreme Court observed the “threshold issue” 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 55 (emphasis added). The Court held it did not. Id. 21
Following the Santa Clara Pueblo decision tribal courts across the United States have split over whether provisions of the ICRA are a congressional waiver of tribal sovereign immunity for suits brought against a tribe in a tribe’s own courts claiming an ICRA violation. Pendergrass, 11 NICS App. at 58, n. 11. It is unnecessary for us to decide in this case whether the equal protection or some other provision in the ICRA is a congressional waiver of tribal sovereign immunity. The issue here is whether the right to petition for redress of grievances language in ICRA constitutes such a waiver. For the reasons we hold that the similar language in the Snoqualmie Bill of Rights is not an express waiver of the Tribe’s immunity from this suit, we conclude it is not a congressional waiver of the Tribe’s sovereign immunity.
Third, Appellants direct our attention to Article X § 1 of the Snoqualmie Constitution. That article vests the Tribal Court with original jurisdiction over all cases, matters or controversies arising under the Snoqualmie Constitution and the Tribe’s laws. CONST. Art. X § 1. Appellants argue this too is an express waiver of the Tribe’s immunity when suits that raise a constitutional question are brought against the Tribe in its own court. We again disagree.
Under analogous federal law if Congress has not waived the government's immunity for a particular claim federal courts lack jurisdiction over that claim and must dismiss it. United States
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v. Dalm, 494 U.S. 596, 608 (1990). In 28 U.S.C. § 1331, Congress used language similar to Article X § 1 in delineating the jurisdiction of federal courts. That statute provides, “[T]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. That statute, however, does not abrogate the government’s immunity from unconsented lawsuits because as a general jurisdictional statute it does not suffice to confer jurisdiction in suits against the government where the government does not expressly waive its immunity. Hughes v. United States, 953 F.2d 531, 539 n. 5 (9th Cir.1992). Federal statutes conferring federal court jurisdiction are not express waivers of sovereign immunity. Robinson v. Salazar, 885 F.Supp.2d 1002, 1027–28 (E.D.Cal.2012).
“The Snoqualmie Indian Tribe is immune from suit except to the extent that the Tribal Council expressly and unambiguously waives its sovereign immunity.” CONST. Art. 1 § 3.22 The legislation establishing the Snoqualmie Tribe’s courts states that the Tribe, Tribal Council, tribal agencies, committees, departments and employees enjoy the Tribe’s sovereign immunity from suit “for acts or omissions done in the performance of Tribal duties” unless waived by the Tribal Council. STC 3.1 § 10. If we were to accept the invitation to read Article X § 1 as waiving the Tribe’s immunity for suits brought against the Tribe in its own courts, when the suit arguably raises a constitutional question, such a reading would conflict with the plain language in Article 1 § 3 and arguably render STC 3.1 § 10 unconstitutional.
We will not read separate constitutional provisions in a manner that creates a conflict. In any event, Article X § 1 by its plain terms it does not expressly waive the Tribe’s immunity. Like the similarly worded United States statutes conferring original jurisdiction in the federal courts, Article X § 1 is a general jurisdictional provision that confers original jurisdiction in the Tribal Court, but it is not an express and unambiguous waiver of the Tribe’s immunity from suits brought in tribal court, a necessary condition precedent to the court’s subject matter jurisdiction. It is only when the Tribe waives its immunity that the court has subject matter jurisdiction over suits against the Tribe under Article X § 1. There is no conflict between Article X § 1 and Article 1 § 3. The Tribe did not expressly waive its immunity and Article X § 1 does not operate as a waiver of the Tribe’s immunity.
We hold that under Article 11 § 5 of the Snoqualmie Constitution the Tribal Court does not have subject jurisdiction over issues directly related to the determination of who is and who is not entitled to membership. We further hold the Tribe’s sovereign immunity shields it from Appellants’ suit, and that the ICRA or Articles X § 1 and XI § 1 (l) of the Snoqualmie Constitution are not unambiguous and express waivers of the Tribe’s immunity for purposes of this suit only. In sum, the court does not have the subject matter jurisdiction to grant the requested relief.
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2. POLITICAL QUESTION
Appellants’ petition requested that the court supervise all future elections and a genealogical processes to determine enrollment. Even if the court had subject matter jurisdiction in this case, we find these remedies are unavailable.
Federal courts have adopted what is called the political question doctrine. The doctrine is a generally understood element of justiciability required by Article III of the United States Constitution. More broadly, it has come to mean that within the constitutional structure, despite an otherwise legitimate claim that the constitution has been violated, there may be an express or implied textual commitment within the constitution that such disputes are inappropriate for judicial review. Therefore such disputes are best resolved through the political process involving the executive and legislative branches of government. See e.g. Erwin Chemerinsky, Federal Jurisdiction 147 (5th ed. 2007).
This doctrine is rooted in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), where the Court held, “Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Id. It finds its modern statement in Baker v. Carr, 369 U.S. 186, 217 (1962):
Prominent on the surface of any case held to involve a political question is found a textually demonstrable commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
While we do not engraft the entirety of the federal political question doctrine into Snoqualmie jurisprudence, we nonetheless adopt the general premise that there are certain discreet issues the court cannot remedy. We find that despite the Tribal Court’s constitutional authority, where the issue raised involves a political question under the Tribe’s constitution or form of government, it is non-justiciable. For example, includes issues where the Snoqualmie people have constitutionally committed the resolution to the unreviewable discretion of the Tribal Council or General Counci, or the relevant considerations necessary to resolve the issue are beyond the limits of the court’s ability to gather, determine or weigh. See, Miami Nation of Indians v. U.S. Dept. of Interior, 255 F.3d 342, 347 (7th Cir.2001) (citations omitted) (there are a class of questions that either are not amenable to judicial resolution because the relevant considerations are beyond the courts' capacity to gather and weigh, or have been committed by the Constitution to the exclusive, unreviewable discretion of the executive and/or legislative branches of the federal government); see also, Lomeli v. Kelly, 12 NICS App. at 23 (a claim that the tribe’s elected officials failed to adhere to by-laws is an unreviewable political question).
We do not make any bright line rule. Whether an issue raises a political non-justiciable question must be determined on a case-by-case basis, and the court must conduct a searching
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inquiry into the precise facts and posture of the particular case before it withholds its power to resolve the case and controversy.
In the context of this case the Tribal Council and General Council determination of who is entitled to membership is non-justiciable. CONST. Art. 11 § 5. In order to make this determination, the Tribal Council and General Council must necessarily have the discretion to establish a genealogical process and institute that process for the purpose of determining tribal membership consistent with the Constitution. CONST. Art. 11 § 5. The Snoqualmie people have constitutionally committed these decisions to the Tribal Council and General Council. A valid claim that a genealogical process adopted by the Tribe violates a person’s constitutional rights may be justiciable, but the question of what process should be adopted is not.
The Snoqualmie people have likewise constitutionally delegated the conduct of tribal elections to the Tribal Council. CONST. See, Art. VI § 3 (Tribal Council authorized to adopt elections laws and procedures) and CONST. Art. IX § 1 (a) (Secretary of Tribal Affairs authorized to administer elections); see also, STC 2.2 § 16 (b) (Tribal Council has sole authority to resolve election disputes). To “supervise” tribal elections the court would need to capture and weigh policy, logistical and other considerations inherent in conducting and administering elections.23 The elected Tribal Council, as the Tribe’s governing body, is required to gather and weigh those considerations through the purely political process of adopting the Tribe’s election laws. The court should not meddle in that process unless there is a valid claim the laws violate the Constitution and the court finds it has subject matter jurisdiction to adjudicate the claim.
3. DUE PROCESS
Tribal Court litigants are entitled to due process. CONST. Art. 1X § 1 (8). At a minimum due process requires an opportunity to be heard at a meaningful time and in a meaningful manner. Roberts v. Kelly, 12 NICS App. 33, 38 (Nooksack Tribal Ct. App. 2014) (citations omitted). Appellants claim their due process rights were violated, because they had no notice that the Tribe's Motion to Dismiss the complaint was going to be heard, since the Tribe did not note a hearing as required by the code. They claim the court’s failure to continue the hearing so they could brief the sovereign immunity issue denied them an “opportunity to respond” to the motion. Appellants’ Br. p. 17; Reply Br. p.3.
The issue below and on appeal is whether the suit is barred because the court lacked subject matter jurisdiction. That is a legal issue that we review de novo. Appellants have had the opportunity to fully brief and argue the issue on review, which they have done. Additionally, the only remedy available is remand to allow Appellants to present the same arguments to the trial court judge that they make on appeal. 24 Our decision resolves the issue. There is nothing left for the trial judge to decide. A remand would be futile and a waste of judicial resources.
14 NICS App. 1, KEMPF v. SNOQUALMIE TRIBE (May 2016) p. 14
Under the circumstances in this case Appellants cannot show they are in any way prejudiced by the court’s denial of their request for more time to respond to the Tribe’s motion. The due process claim fails.
CONCLUSION
We are as troubled as the trial court judge with the prospect that a significant number of the Tribe’s current members, including perhaps some of its elected officials, may not have met the criteria for enrollment. Appellant’s petition evinces that the problem has caused internal dissention, acrimony between members, and raises questions about the legitimacy of the tribal government.
We recognize our decision, that under the Snoqualmie Constitution the issue raised in the petition--who is or should be a valid tribal member--can only be determined by the Tribal Council and General Council whose membership may consist of people who may not meet the criteria for enrollment, could be read as creating a potential Catch-22.25 It will no doubt be difficult to “fix” the enrollment problem. It will require a novel solution that the Tribe’s members will need to work out through the political process. The Tribe’s judiciary does not have the authority, power, or capability to provide the solution.
The court’s ruling and order dismissing Appellants’ petition 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.
The membership of the Snoqualmie Tribe shall consist of:
“(a) All persons of Snoqualmie Indian blood whose names appear on Charles Roblin's schedule of' Unenrolled Indians as of January 1, 1919.
(b) All descendants of persons who qualify for Tribal membership under Article II, Section 1 (a) provided that such descendants possess at least one-eighth (1\8th) degree of Snoqualmie Indian blood.
(c) Any Indian person who is adopted in accordance with the acts and resolutions of the Tribal Council, provided however that an Indian adoptee shall not be eligible to hold an elected office and shall not share in any judgment fund or per capita payments otherwise available to enrolled Snoqualmie tribal members pursuant to sub-sections (a) and (b) of this section. Indian adoptees shall have only those rights and privileges actually bestowed by the Tribal Council at the time of adoption.
(d) All non-Indian persons adopted as honorary members of the Snoqualmie Indian Tribe. Non-Indians are restricted to the status of honorary membership and in no case shall an honorary member be entitled to hold an elected office, to vote or participate in any tribal affairs or share in any distribution of tribal funding reserved for enrolled Snoqualmie Indians pursuant to subsections
(a) and (b) of this section.” CONST. Art. 11 § 1.
The Tribe’s General Council consists of the Tribe’s members. CONST. Art. 11I § 1.
The Tribal Council is the Tribe’s governing body composed of 9 General Council members elected by the General Council. CONST. Art. 1V §§ 1, 2.
A proposed constitutional amendment requires “…two-thirds (2/3) vote of the eligible voters of the Tribe present and voting…,” to pass. CONST. Art. VI. The Tribe’s eligible voters are General Council members who are 18 years of age or older. CONST. Art. III § 2.
At oral argument we were informed the General Council failed to pass the proposed amendments.
Tribal Court: "I do know that Mr. Williams [Appellants’ counsel] did want additional time to respond to the Tribe's Motion in Opposition to the Injunction. I don't know if I gave more time if that would actually do anything. I don't -- I don't think it would because of the ultimate issue that I've had to reach." Verbatim Report of Proceedings (VRP) 8/14/2016 at 27.
The Tribal Courts presume Tribal Council’s actions comply with the Constitution, and that a person officially recognized by the Tribe as a member has necessarily met the criteria for enrollment.
The petition does not allege any individual Tribal Council members acted outside their authority or in violation of the Tribe’s constitution.
The General Council has the authority to revoke membership in the Tribe.
“Membership is declared a privilege that can be revoked by the General Counsel.
Snoqualmie Tribal membership is a privilege that may be revoked by the General Council for cause as determined by the acts and resolutions of the Tribe. The General Council may impose a penalty of full or partial banishment against any enrolled tribal member for good cause in accord with Snoqualmie Tribal tradition or the acts and resolutions of the tribe.” CONST. Art. 11 § 3.
Under federal law a Tribe has the sole discretion to decide issues regarding its membership. “A tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community,” Santa Clara Pueblo, 436 U.S. at 72, n.32, and is one of the few remaining aspects of tribal sovereignty that lie in the sole discretion of the tribal government. Aguayo et. al. v. BIA, 55 IBIA 192, 2013 WL 8436503 (2013); Morton v. Mancari, 417 U.S. 535 (1974); Patterson v. Council of the Seneca Nation, 157 N.E. 734 (1927). That discretion necessarily includes a tribe’s right to determine the mechanisms or procedures for enrollment as a member.
“Any” means “every” and “all.” See, Webster's Third New International Dictionary p. 97 (1993).
“The Tribal Court shall have original jurisdiction extending to all cases, matters or controversies arising under this Constitution and the laws, ordinances, regulations, customs and judicial decisions of the Tribe.” CONST. Art. X § 1.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. CONST. Amend 1.
The Hoh Constitution reads, “[N]o member of the Hoh Tribe shall be denied any of the rights or guarantees enjoyed by citizens under the Constitution of the United States, including but not limited to...the right to petition for action or the redress of grievances..." Hudson, 2 NICS App. at 163.
Appellants do not cite nor have we found any other tribal appellate court that adopts the Hudson court’s holding.
In California Motor Transport Co. the Court cited two habeas corpus cases, Johnson v. Avery, 393 U.S. 483 (1969), and Ex parte Hull, 312 U.S. 546 (1941), in support of its statement that “[t]he right of access to the courts is indeed but one aspect of the right of petition.” 404 U.S. at 510. Those cases, however, do not mention the right to petition clause.
Subsequent cases citing California Motor Transport Co. for the proposition lawsuits are petitions under the First Amendment are statutory interpretation decisions construing the National Labor Relations Act. BE & K Constr. Co. v. NLRB, 536 U.S. 516, 534–536 (2002); Sure–Tan, Inc. v. NLRB, 467 U.S. 883, 896–897 (1984); see e.g. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 737, 741–743 (1983) (First Amendment and federalism concerns prevented the filing and prosecution of a well-founded lawsuit from being enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff’s desire to retaliate against the defendant for exercising rights protected by the NLRA.).
People v. Siragusa, 366 N.Y.S. 2d 336 (1975), another case cited by the Hudson court lends no support to its reasoning. In that case the court held a prosecutor may not prosecute for the purpose of deterring citizens from exercising their right to protest official misconduct and petition for redress of grievances. Id. at 372.
If there is a right to access this list of what acts might violate that right are just examples and would not necessarily constitute the entire extent of acts that would violate that right.
We do not decide whether Article XI § 1 (l) includes the right to access to the Tribe’s courts, or if a right to access can be found in another constitutional provision or in a Snoqualmie code.
Appellants cite Johnson v. Lower Elwha Tribal Community, 484 F.2d. 200 (1973) and Daly v. United States, 483 F.2d 700 (1973) for the broad proposition that the ICRA is a limited waiver of a tribe’s sovereign immunity. Reply Br. p. 4. In those cases the courts found ICRA provides a jurisdictional basis for the federal district court because the Act evidenced a Congressional exception to the general policy of immunity of Indian tribes from suit. Johnson 484 at 202; Daly 483 F.2d 705. Both those cases were decided prior to the Supreme Court’s decision in Santa Clara Pueblo v. Martinez, where the Court ruled that ICRA cannot be used to create a cause of action against Indian tribes or its officers for deprivation of substantive rights. 436 U.S. at 59. The holding in those cases lend Appellants no support.
Appellants assert Lomeli v. Kelly, 12 NICS App. at 7 supports their argument. Reply Br. at 5. In Lomeli the suit was brought against tribal council members alleging they acted outside the scope of their authority in violation of the tribe’s constitution and such a suit was authorized under tribal law. Lomeli, at 6, 13-15. Appellants’ suit is brought against the Tribe itself. We do not decide whether the Tribal Court has jurisdiction over a suit brought by a Snoqualmie tribal member requesting specific relief based on an allegation Council members acted outside the scope of their authority in violation of the Tribe’s Constitution, like in Lomeli . Also, Lomeli involved disenrollment proceedings, unlike in this case where the Tribe is not attempting to disenroll any member.
The criteria for holding an elected office, the nominating procedures, where and when elections will be held, the method for submitting and tabulating ballots, and the process and procedures for certification of an election are a few examples of the policy, logistical and other considerations the court would need to weigh in order to supervise elections.
At oral argument Appellants’ counsel conceded Appellants have had a full opportunity to brief and argue the issue on appeal, and they would make the same arguments to the trial judge if the case were remanded that they made to this Court.
The term “Catch-22” is often used to describe a problem without a solution. It is explained in the below passage from Joseph Heller’s novel:
“ ‘What right do you have?’ the girls said. ‘Catch-22,’ the men said. All they kept saying was ‘Catch-22, Catch-22.’ What does it mean, Catch-22? What is Catch-22?”
“Didn't they show it to you?” Yossarian demanded, stamping about in anger and distress. “Didn't you even make them read it?”
“They don't have to show us Catch-22,” the old woman answered. “The law says they don't have to.”
“What law says they don't have to?”
“Catch-22.”
Joseph Heller, Catch-22, p. 375 (Simon & Schuster 1999) (1961).