15 NICS App. 26, HOOPA VALLEY v. BERNARDO (July 2017)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
HOOPA VALLEY TRIBE
HOOPA, CALIFORNIA
Hoopa Valley Tribe, Defendant/Appellant,
v.
Ryan Bernardo, Plaintiff/Appellee.
NO. A-17-001 (July 19, 2017)
SYLLABUS*
Tribe and appellee entered into a dissolution agreement that was to terminate an employment contract. The tribe consented to suit in one paragraph of the dissolution agreement but in the next paragraph the parties agreed nothing in the agreement waived sovereign immunity. The appellee argued that the tribe terminated the employment contract early and did not pay the full amount of wages that would have been owed under the dissolution agreement. The Court of Appeals remanded matter back to trial court for entry of an order dismissing the case, ruling that the tribe is immune from suit under the dissolution agreement as the court lacks subject matter jurisdiction.
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Before: |
Lisa L. Atkinson, Chief Judge; Matthew L.M. Fletcher, Judge; Thomas E. Weathers, Judge. |
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Appearances: |
Thomas Schlosser, for Appellant; Ryan Bernardo, pro se. |
OPINION
Fletcher, J.:
This matter came before the Court for oral argument on June 29, 2017, Chief Justice Lisa L. Atkinson, Associate Justice Matthew M. Fletcher, and Associate Justice Thomas E. Weathers, presiding.
Attorney Thomas Schlosser appeared for Appellant Hoopa Valley Tribe.
Respondent Ryan Bernardo appeared on his own behalf.
15 NICS App. 26, HOOPA VALLEY v. BERNARDO (July 2017) p. 27
The Court now enters the following Decision and Order.
Summary
The Hoopa Valley Tribe (Tribe) and Ryan Bernardo (Bernardo) entered into a separation agreement in which the Hoopa Valley Tribe apparently consented to suit in one paragraph but then in the next paragraph the parties agreed nothing in the agreement waived immunity. We hold that the tribe is immune from suit and that this matter must be dismissed.
Factual Background
We take the facts as alleged by the Bernardo, in his complaint.1 Tribe and Bernardo entered into an agreement titled “Dissolution Agreement” on April 12, 2016. The purpose of the Dissolution Agreement was to terminate an Employment Contract between the Tribe and Bernardo. Under the Dissolution Agreement, the Employment Contract was to be terminated on July 22, 2016. However, according to Bernardo, the Tribe terminated the Employment Contract on May 23, 2016. The Tribe issued a final check to Bernardo that included the wages owed through May 23, but not the full amount that would have been due under the Dissolution Agreement. Bernardo claims money damages in the amount of $29,655.38 and prejudgment interest. The Tribe moves to dismiss on the ground of sovereign immunity.
Section 9 of the Dissolution Agreement provided as follows:
This Agreement is entered in on the Hoopa Valley Indian Reservation, Hoopa[,] California and its requirements shall for all purposes be governed and construed according to the laws of the Hoopa Valley Tribe, and the Hoopa Valley Tribal Court shall have jurisdiction over this Agreement. The Hoopa Valley Tribe consents to suit before the Hoopa Valley Tribal Court only for the express and limited purpose of enforcing this Agreement.
Section 10 of the Dissolution Agreement provided: “Nothing in this Agreement shall be deemed or construed to be a waiver of the sovereign immunity of the Hoopa Valley Tribe, their officials, entities, or employees acting within their official or individual capacities.”
Standard of Review
The denial of a motion to dismiss based on sovereign immunity, as well as the interpretation of ambiguous contract terms, are questions of law we review de novo. HVTC § 2.6.18(a) (“Questions of law will be decided with no deference granted to the tribal court decision.”); Hostler v. Hoopa Valley Tribe, 10 NICS App. 14, 15 (Hoopa Valley Tribal Court of Appeals 2011) (reviewing de novo an appeal from the denial of a motion to dismiss based on sovereign immunity); Atkinson v. Northwestern National Insurance Co., 4 Am. Tribal Law 286,
15 NICS App. 26, HOOPA VALLEY v. BERNARDO (July 2017) p. 28
287-88 (Fort Peck Court of Appeals 2003) (reviewing de novo an appeal from a trial court’s interpretation of a contract).2
Analysis
The law of tribal sovereign immunity is well developed in this jurisdiction. “The doctrine of sovereign immunity protects the Hoopa Valley Tribe from suit unless the Tribe consents to the suit. . . .” Hostler, 10 NICS App. at 16. “Indian tribes can waive sovereign immunity; however, such waiver may not be implied, but must be expressed unequivocally.” Rowland d/b/a Hoopa Valley Ready Mix v. Hoopa Valley Tribe, 2 NICS App. 185, 186 (Hoopa Valley Tribal Court of Appeals 1992). Cf. Hostler, 10 NICS App. at 16 (“It is a canon of sovereign immunity that where the issue is the scope or extent of a waiver of sovereign immunity any ambiguities in the statutory text must be strictly construed in favor of the sovereign.”) (citation omitted). “Tribal sovereign immunity is a jurisdictional issue and, therefore, must be resolved before any substantive issues are resolved.” Rowland, 2 NICS App. at 186. “The purpose of sovereign immunity is to preserve the autonomous political existence of the tribes and tribal assets.” Rowland, 2 NICS App. at 186.3
Here, the parties entered into an agreement that very specifically and forcefully bars the court from “deem[ing] or constru[ing]” any provision in the Dissolution Agreement as a waiver of tribal sovereign immunity. According to the terms of Section 10 of the Dissolution Agreement, no suit may proceed against the tribe, “their officials, entities, or employees acting within their official and individual capacities.” Section 10 effectively strips this court of jurisdiction over the tribe for any purpose under the Dissolution Agreement. Rowland, 2 NICS App. at 186. That language is dispositive, and Bernardo’s suit against the tribe cannot proceed.
Bernardo argues that Section 9 operates as a waiver of tribal immunity. In Section 9, the tribe “consents to suit before the Hoopa Valley Tribal Court” for the purpose of “enforcing” the Dissolution Agreement. There is no doubt that Section 9 is in flat contradiction to Section 10. Section 9 looks like a waiver of sovereign immunity, but Section 10 takes it away. Even if this Court concluded that the contradiction between Section 9’s apparent waiver and Section 10’s reassertion of immunity created an ambiguity in the contract, “any ambiguities in the . . . text must be strictly construed in favor of the sovereign.” Hostler, 10 NICS App. at 16. Section 9’s apparent waiver is rendered a nullity in Section 10.
15 NICS App. 26, HOOPA VALLEY v. BERNARDO (July 2017) p. 29
Assuming the facts alleged to be true, the Hoopa Valley Tribe did violate its promise not to terminate Bernardo’s Employment Agreement until July 22, 2016 and further violated its promise to pay Bernardo a sum of $29,655.38. However, Section 10 of the Dissolution Agreement bars this court from enforcing the terms of the Dissolution Agreement, despite whatever inequities might have resulted from this outcome. Cooper v. Hoopa Valley Tribal Council, 8 NICS App. 35, 38 (Hoopa Valley Tribal Court of Appeals 2007).
Conclusion
This matter is remanded back to the trial court for entry of an Order dismissing the case on the grounds of lack of subject matter jurisdiction.
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 trial court converted the tribe’s motion to dismiss, trial court docket number 13, into a motion for summary judgment. We see no reason to do so, and will treat this matter as an appeal of a denial of the tribe’s motion to dismiss.
The trial court converted the Tribe’s motion to dismiss into a motion for summary judgment. Denials of motions for summary judgment are also reviewed de novo. Atkinson, 4 Am. Tribal Law at 287-88.
We deny Bernardo’s motion to dismiss the tribe’s appeal. “[D]enial of a motion to dismiss, where the motion pleads sovereign immunity, is a final judgment as to that defense and will therefore ordinarily be appealable. . . .” Risling v. Hoopa Valley Tribe, 12 NICS App. 66, 67 (Hoopa Valley Tribal Court of Appeals 2014). See also Hoopa Valley Tribal Council v. Marshall, 10 NICS App. 1, 2 (Hoopa Valley Tribal Court of Appeals 2011) (“The appellate court’s authority to entertain an interlocutory appeal from a denial of a motion to dismiss on grounds of sovereign immunity is therefore too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. . . . Since the privilege of immunity would be lost if a case went to trial . . . , we hold that the denial of the motion to dismiss on grounds of sovereign immunity is an interlocutory order subject to appeal.”).