C.W. v. THE TULALIP TRIBES

15 NICS App. 6, C.W. v. THE TULALIP TRIBES (March 2017)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

C.W., Appellant/Appellant below,

The Tulalip Tribes, Appellee/Respondent below.

NO. TUL-CV-AP-2016-0023 (March 9, 2017)

(Original Opinion Filed December 19, 2016)
(Reconsideration Granted March 9, 2017)

SYLLABUS^*

Appellant’s post-trial motion, for attorney’s fees and costs after her successful appeal of an adverse employment decision, was denied by a judge who recused himself earlier in the case. Issue on appeal is whether a judge having once recused himself from participation in a case, can re-enter the case to hear and decide a post-trial motion. Court of Appeals determined Tribe’s defense of sovereign immunity needed to be addressed before question of recusal because if applicable would preclude it. Appellant argued that Tribe took actions which constituted a clear and explicit waiver of its sovereign immunity. Court of Appeals remanded matter back to Employment Court for examination of the Tribal General Council’s motion, that appellant references in her argument, to determine if it waived the Tribe’s sovereign immunity and the effect of such waiver if one found on the appellant’s post-judgment motion for attorneys’ fees and costs.

Before:	Daniel A. Raas, Chief Justice; John C. Sledd, Justice; Jane M. Smith, Justice.
Appearances:	Gabriel S. Galanda, for Appellant; Saza Osawa, Office of Reservation Attorney, for Appellee.

AMENDED OPINION

Raas, C.J.:

Appellant C.W.¹ appeals the decision of the Tulalip Employment Court denying her Motion for Attorney’s Fees and Costs incurred in her successful appeal of an adverse

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employment decision. This Amended Opinion results from the Motion for Reconsideration filed by the Appellee Tribes.

PROCEDURAL HISTORY AND QUESTIONS PRESENTED

Prior to this appeal, C.W. had appealed an adverse employment decision to the Employment Court under former TTC 9.10.² However, while her Employment Court appeal was pending the Tulalip Board of Directors, the governing body of the Tulalip Tribes, repealed TTC Ch. 9.10, effective November 1, 2014, and replaced the remedy of the Employment Court with an administrative procedure that was not available to Appellant. The Board subsequently revived the Employment Court for the limited purpose of hearing Appellant’s case and one other matter. The resurrected Employment Court subsequently ruled in favor of Appellant on the merits of her employment case. Several months after that ruling Appellant sought an award of attorney’s fees and costs. That motion was denied by Chief Judge Whitener. This Court is the Court of Appeals for appeals from decisions of the Employment Court. TTC 9.10.950(11).

Appellant does not seek substantive reversal of the denial of her Motion from this Court. Instead, she seeks a reversal so that her Motion can be decided by a Judge other than C.J. Whitener, who, acting as an Employment Court Judge pursuant to TTC 9.10.950(5), had recused himself earlier in the case. Thus the question Appellant raises here is whether a judge, having once recused himself from participation in a case, can re-enter the case to hear and decide a post-trial motion?

While this appears to be a straightforward inquiry, in this Court the Tribes have interposed the defense of sovereign immunity to the jurisdiction of this Court (and by extension, the Employment Court) to hear the underlying motion, regardless of the recusal issue or the merits of the motion.

In its Motion for Reconsideration, the Tribes vigorously argues that the Court is precluded from examining the history of a potential waiver of sovereign immunity of the Tribes by the terms of the ordinance establishing the Employment Court as a court of limited jurisdiction. This argument is misplaced for two independent reasons: (1) The broad scope of jurisdiction granted the Court by the Tulalip Board of Directors pursuant to the Tulalip Constitution and Bylaws and the ordinances of the Tribes and (2) the Tribes’ interposition of the defense of sovereign immunity in response to this appeal.

Article VI, Section K, of the Constitution delegates to the Board of Directors the power to establish a justice system.³ Article V, Section 4, of the Bylaws requires that decisions of the Board dealing with general and permanent interests of the Tribes are to be memorialized in ordinances.⁴ The Court thus looks to the ordinances of the Tribes to ascertain any limitations on

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its ability to examine questions of law in matters that come before it. The ordinance section setting out the Court’s powers is TTC 2.05.020(1) reads in relevant part: “The jurisdiction of the Tulalip Tribal Courts shall extend, except as limited by Federal statutory or Tulalip Tribal law, to…(b) all subject matters which, now and in the future, are permitted to be within the jurisdiction of any Tribal Court of a sovereign Indian tribe or nation recognized by the United States of America….”⁵

The Tribes approaches the jurisdiction of the Court from an opposite direction. It argues that since the Employment Court, and by extension, this Court, cannot grant the requested substantive relief (an award of attorneys’ fees and costs) then it cannot examine the claim of the Appellant for such relief. This confuses the broad power of the Court to entertain the legal questions surrounding sovereign immunity with the more narrow power to grant substantive relief.

A second, independent, reason for rejecting the Tribes’ argument that this Court lacks the power to examine whether the Tribes has waived its sovereign immunity is that the Tribes itself raised its sovereign immunity for the first time in this appeal.⁶ It would be a significant anomaly if a sovereign could, simply by asserting sovereign immunity, avoid any scrutiny of a possible waiver. Sovereign immunity is a powerful doctrine protecting tribal assets and procedures, but it can, under the appropriate circumstances, be waived.

This Court has both the judicial power and the duty to examine whether such a waiver is present in this case.

STANDARD OF REVIEW

Whether the defense of sovereign immunity bars a proceeding or claim is a question of law, reviewable de novo. TTC 2.20.090(4). A valid defense of sovereign immunity removes a court’s jurisdiction over the claims asserted against the Tribes. Because sovereign immunity, if applicable, would preclude consideration of Appellant’s claimed error, it must be addressed before the question of recusal is considered. Sovereign immunity may be waived by the Tulalip Tribes. Henry v. Washington DSHS, 5 NICS 58, 61 (Tulalip, 1998). Whether a waiver is present here requires examination of Tulalip law and the record in this matter. Id.

DISCUSSION

The Tulalip Tribes’ origins predate the United States and the Tribes retain attributes of sovereignty that have not been ceded to the United States in the Treaty of Point Elliot or removed by Federal law:

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“The Tulalip Tribes, like all Indian tribes, are protected from suit by sovereign immunity. Ord. 49, § 1.2.2; see Rave v. Reynolds, 23 Ind. L. Rep. 6150, 6161 (Winn. S.Ct. 1996); Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754 (1998); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). Sovereign immunity extends to entities that are arms of the tribes. Ord. 49, § 1.2.2; see Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 29 (1st Cir. 2000); Hagen v. Sisseton‑Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000).”

***

“Indian tribes may waive their immunity from suit, but such a waiver cannot be implied. Ord. 49, § 1.2.2 (immunity must be "expressly, specifically, and unequivocally waived"); see Bear Don't Walk v. Confederated Salish and Kootenai Tribal Council, 31 Ind. L. Rep. 6061 (CS&KT App. 2004); (C&L Enterprises v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 418 (2001); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58‑59 (1978).”

Madison v. Tulalip, 6 NICS App 212, 213 (Tulalip, 2004), Pendergrass v. Sauk-Suiattle Tribe, 11 NICS App. 52, 59 (Sauk-Suiattle, 2013).

TTC 9.10.060 contained a limited waiver of the Tribes’ sovereign immunity in employment appeals.⁷ TTC 9.10.950(11) clarified when the Human Resources Code waives sovereign immunity and lists the remedies that the Employment Court can grant a successful appellant: “…the [personnel] action being expunged from the personnel file, reinstatement in the job and/or back pay and benefits.” Attorney’s fees and costs are not among the remedies that the Employment Court can grant. There is no waiver of the Tribes’ sovereign immunity in the Human Resources Code (Chapter 9.10) itself which would allow the consideration of Appellant’s motion for Attorney’s Fees and costs. See: TTC 2.05.030(9): “Attorney’s fees are not awardable unless otherwise provided by contract, ordinance, statute, or other law.”

The Board reinstated TTC 9.10 in Resolution 2015-012 (January 10, 2015) “…for the limited purpose of granting the Tulalip Tribal Employment Court jurisdiction to accept two appeals of employment dismissals occurring in October 2014 but that were dismissed or disallowed by the Tribal Court due to the repeal of TIC 9.10 on November 1, 2014 when the new Tribal Government Employee Handbook went into effect.”

There is nothing in this Resolution that added a remedy that would allow Appellant her attorney’s fees and costs to the relief she initially sought and recovered. It does not amend the limited waiver of sovereign immunity found in TTC 9.10.060.

However, Appellant claims that the Tulalip General Council and the Board took actions which do constitute a clear and explicit waiver of the Tribes’ sovereign immunity and compel an award of attorney’s fees and costs to her.

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C.W. initially offers an excerpt from the “Tulalip Tribes Board of Directors ‘Annual General Council Meeting Directives’ dated March 13, 2013.” The relevant portion of this excerpt reads:

MOTION TO ADD THE FOLLOWING SENTENCE TO TITLE 9.10.940(11)

DECISION; SHOULD A TRIBAL MEMBER EMPLOYEE BE GRANTED ANY OF THOSE REMEDIES, THE EMPLOYEE SHALL BE AWARDED HIS OR HER ATTORNEY FEES AND COSTS FROM THIS DAY FORWARD

FOR CLARIFICATION: ANY COSTS INCURRED FOR REPRESENTATION DURING THE APPEAL PROCESS SHALL BE PAID BACK TO THE EMPLOYEE IS ANY OF THE FOLLOWING REMEDIES: ACTION IS EXPUNGED FROM THE PERSONAL FILE, REINSTATEMENT IN THE JOB SND OR BACK PAY AND BENEFITS ARE AVAILABLE PER THE DECISION RENDERED BY THE EMPLOYMENT COURT JUDGE.

Appellant also submits an excerpt from the “Tulalip Tribes Board of Directors ‘Regular Board Meeting’ Directive dated April 3, 2013”. The relevant portion reads:

RATIFICATION OF AGC MOTIONS OF MARCH 16, 2013

MOTION CARRIED TO RATIFY THE ACTIONS OF THE GENERAL COUNCIL FROM THE AGC (ANNUAL GENERAL COUNCIL) MEETING HELD MARCH 16, 2013

Taken together, Appellant argues that these two documents waived the Tribes’ sovereign immunity and entitle her to recover her attorney’s fees and costs incurred in her successful appeal of the adverse decision relating to her employment.

The standard for finding waiver of the Tribes’ sovereign immunity is found in TTC 2.20.020(3) “Tribal Immunity. The Tulalip Tribes, its Board of Directors, its agencies, enterprises, chartered organizations, corporations, or entities of any kind, and its officers, employees, agents, contractors, and attorneys, in the performance of their duties, shall be immune from suit; except where the immunity of the Tribes or its officers and employees is expressly, specifically, and unequivocally waived by and in a Tulalip Tribal or Federal statute, a duly executed contract approved by the Tulalip Board of Directors, or a duly enacted ordinance or resolution of the Tulalip Board of Directors.” (emphasis added)

Appellant points to no Tulalip Tribal or Federal statute that applies. The notation in the Summary of the April 3, 2013, Directives is neither a statute nor a duly enacted ordinance or resolution of the Board. A duly enacted ordinance or resolution is a separate legislative act accompanied by a formal process. See, Tulalip Tribes Bylaws, Art. V, Sec. 5.⁸ We see no reason to require any less formal action to constitute a “statute.” The Summary reflects no such action. The strong language of TTC 2.20.020(3) and the Tribes’ Bylaws compel a conclusion that neither the General Council Motion nor the Board Directives -- which are the only evidence of General Council or Board action in the record -- enacted an ordinance amendment to TTC

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9.10.940(11) nor did either pass a statute or resolution incorporating such an amendment that would allow consideration of Appellant’s claim for attorney’s fees and costs. Thus under the Bylaws, Art. V, Sec. 5 and TTC 9.10.060, neither the Motion nor the Directives waived the Tribes’ immunity. Without an express, specific and unequivocal waiver as required by TTT 2.20.020(3), consideration of Appellant’s motion for attorneys’ fees and costs is barred by Tulalip sovereign immunity and cannot be brought in the Employment Court or in this Court.⁹

Appellant secondly submits a Motion that was passed at the March 14, 2015, General Council meeting which read in relevant part:

Motion to Give Due Process Protections to Tulalip Employees

I move that the Tulalip Tribes’ Employee Handbook that was recently adopted by Tribal Council 2014-378 be amended to:

(1) Restore the jurisdiction of the Tulalip Employment Court for employment appeals for suspensions, demotions or dismissals,

(2) ***

(3) ***

(4) Reflect the March 16, 2013 General Council motion to allow prevailing employee

appellants to be awarded their attorneys’ fees and costs.

Appellant suggests that this Motion, which was passed by the General Council and may have resulted in an amendment to the Employment Handbook, would provide an independent basis for a waiver of sovereign immunity and entitle her to an award of her attorney’s fees.

The March 14, 2015, General Council Motion explicitly references the recently adopted Employee Handbook. It makes no mention of the repealed TTC 9.10 or of Appellant’s pending action before the Employment Court. The Board apparently took no action after the March 14, 2015, meeting, for a General Council Motion identical to the March 14, 2015, Motion was passed by the General Council on October 17, 2015.

To the extent that Appellant argues that these 2015 General Council Motions also operate to waive the Tribes’ sovereign immunity by allowing an award of attorneys’ fees and costs to employee appellants who succeed in an Employment Court appeal, her argument is misplaced. Although that might have been the intent of the makers and the tribal members who voted in favor of the 2015 Motions, both Motions refer explicitly to amending the recently enacted Employee Handbook. The Employee Handbook and the appeal process therein replaced the appeal process that involved the Employment Court. Resolution 2015-012, which allowed Appellant to revive her employment appeal under the otherwise repealed TTC 9.10, would not be affected by an amendment to the Employee Handbook. Appellant does not cite any ordinance or resolution implementing the 2015 Motions that might be relevant to her motion for attorney’s fees and costs.

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To the extent that the 2015 motions are offered to reflect the substance of the 2013 Motion, the 2015 Motions at best reflect the understandings of the 2015 General Council Meetings of the 2013 Motion: they are not evidence of what the 2013 Motion actually said. As above, without an ordinance or resolution of the General Council or of the Board, the 2013 General Council Motion is insufficient to waive the Tribes’ sovereign immunity pursuant to TTC 2.20.020(3).

CONCLUSION

The Tribes has not waived its immunity from suit so as to allow Appellant to seek to recover her attorney’s fees and costs incurred in her successful appeal of a personnel action to the Employment Court. The failure of C.J. Whitener to recuse himself from considering her Motion for Attorney’s Fees and Costs is irrelevant since the Employment Court cannot consider Appellant’s Motion without a waiver of sovereign immunity.

This appeal is DISMISSED and the matter is REMANDED to the Employment Court for denial of Appellant’s Motion.

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.

Pursuant to TTC 9.10.950 (13), now repealed, only Appellant’s initials shall be used in this opinion.

All references to TTC 9.10 are to TTC 9.10 as it was reinstated by the Board of Directors for this case.

Article VI K: “To promulgate and enforce ordinances, which shall be subject to review by the Secretary of the Interior, governing the conduct of members of the Tulalip Tribes, and providing for the maintenance of law and order and the administration of the justice by establishing a reservation court and defining its duties and powers.”

Article V, Section 4: “All final decisions of the Board or of the General Council on matters of general and permanent interest to the members of the Tribes shall be embodied in ordinances.”

This section also rephrases the Courts’ jurisdiction regarding Quil Ceda Village: “The Courts of the Tulalip Tribes shall have jurisdiction to hear and decide all causes of action arising from activities within the boundaries of the Consolidated Borough of Quil Ceda Village and shall hear and decide all matters arising under the duly adopted ordinances and regulations of the Consolidated Borough of Quil Ceda Village.”

See: Amerind Risk Management v. Malaterre, 633 F.3d 680, 684 (8th Cir. 2011) (Circuit Court raised sovereign immunity on its own even though the tribal entity did not plead sovereign immunity and Court’s jurisdiction was in question if sovereign immunity applied.) Here we need not, and do not, go so far, since the Tribes itself challenged the Court’s jurisdiction by pleading its sovereign immunity.

“The provisions of this chapter shall not waive the sovereign immunity of the Tribes. This provision shall not apply where this chapter clearly and expressly grants a specific remedy against the Tribes. Should a conflict arise between this chapter and the Constitution and Bylaws of the Tribes, the Constitution and Bylaws shall prevail.” (emphasis added)

“Every ordinance shall begin with the words: ‘Be it enacted by the Board of Directors (or the General Council) of the Tulalip Tribes . . . .’ Every resolution shall begin with the words: ‘Be it resolved by the Board of Directors (or the General Council) of the Tulalip Tribes . . . .’ Every ordinance or resolution shall contain a citation of the laws of the United States and the provisions of the Tulalip Constitution under which authority for the said ordinance or resolution is found.”

Memphis Biofuels LLC v. Chickasaw Nation Ind., Inc. 585 F.3d 917, 921-2 (6th Cir. 2009) holds that a contract purporting to waive tribal sovereign immunity is ineffective without a companion resolution enacted by the Board of Directors as required by the corporate charter. Amerind Risk Management v. Malaterre, above at 687-8, gives an example of the specificity required by a tribal Charter to effect a waiver of sovereign immunity.