15 NICS App. 51, RICHARDSON v. ISLAND ENTERPRISES, INC. (October 2017)
IN THE SQUAXIN ISLAND TRIBAL COURT OF APPEALS
SQUAXIN ISLAND INDIAN RESERVATION
SHELTON, WASHINGTON
Dakota Richardson, Petitioner/Appellant,
v.
Island Enterprises, Inc., Respondent/Appellee.
NO. CV-2017-1704-0053 (October 23, 2017)
SYLLABUS*
Trial court upheld employment action terminating appellant’s employment from a tribal enterprise. Court of Appeals dismissed action based on tribe’s sovereign immunity and that employee agreed to a specified grievance process that does not allow for an appeal beyond the trial court.
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Before: |
Randy A. Doucet, Chief Judge; Lisa L. Atkinson, Judge; Jerry R. Ford, Judge. |
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Appearances: |
Gary Richardson, for Appellant; David Babcock, for Appellee. |
OPINION
Atkinson, J.:
Summary: The Island Enterprises, Inc. Employee Handbook stipulates that the Squaxin Island Employment Court (trial court) is the last option under the employee grievance process, and cannot be appealed further, therefore sovereign immunity bars Appellant’s appeal to this Court, and the appeal is accordingly dismissed.
Atkinson, J:
Background
This matter comes before the Squaxin Island Court following the Employment Court (trial court) upholding the employment action terminating Appellant’s employment with Island Enterprises, Inc. (“IEI”), which is a non-gaming enterprise wholly owned by the Squaxin Island Tribe. Essential facts are not in dispute, to wit, that the Appellant was employed by IEI on or about June 30, 2015, at which time he acknowledged that he read and understood the Employee
15 NICS App. 51, RICHARDSON v. ISLAND ENTERPRISES, INC. (October 2017) p. 52
Handbook (“Handbook”) which governed the terms of his employment, and that he was terminated on or about January 16, 2017. Defendant was an “at-will” employee. Disputed facts are whether or not Appellant’s supervisor did or did not provide notice of a schedule change on or around January 16, 2017, and whether this forms the basis for overturning his termination1.
Appellant’s termination was upheld at all levels following the proceedings under “Grievances and Appeals,” found in Section XI of the Handbook. The final option was an appeal to the Employment Court, which also upheld the termination2. Appellant filed his appeal with this Court on or about June 2, 2017. The Tribe moved to dismiss based on sovereign immunity.
Standard of Review
The Squaxin Island Tribe does not have a specific statute regarding the standard of review for Motions to Dismiss based on sovereign immunity. However, Squaxin Island Tribal Code (“SITC”) Section 1.04.020 (A) authorizes this Court to “consult the laws of other jurisdictions as it deems necessary or appropriate where there is no Squaxin Island Code.” In an earlier appeal before this Court, the standard of de novo review was adopted. See, Burrow v. Squaxin Island Gaming Enterprise, 10 NICS App. 54 (2011). The Court adopts this standard with respect to a motion to dismiss based on sovereign immunity. See Hoopa Valley Tribal Council v. Marshall, 10 NICS App. 1, 3 (2011). This appeal “comes before us based upon an order granting the tribe’s Motion to Dismiss. We therefore must construe the facts in the record before us in the light most favorable to the non-moving party ....” Hoopa Valley Tribal Plant Management Dept. v. Smith, 5 NICS App. 132, 134 (1999); Atkinson v. Northwestern National Insurance Co., 4 Am. Tribal Law 286, 287-88 (Fort Peck Court of Appeals 2003) (reviewing de novo an appeal from a trial court’s interpretation of a contract). Under SITC Section 4.32.150(C), the Court of Appeals “… may dismiss an appeal, reverse the Trial Court decision in whole or in part, order a new trial, or make any other ruling which disposes of the issues raised by the appeal, provided that on matters on appeal from the Employment Court the Appeals Court may only order a new trial and may only do so if the Appeals Court determines that the lower court's decision was arbitrary or capricious or not supported by substantial evidence.”
Analysis
SOVEREIGN IMMUNITY
The law of tribal sovereign immunity is well developed. In Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1977), the United States Supreme Court held that, “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Id. at 58. Further, sovereign immunity cannot be implied but must be clearly and unequivocally expressed. Arizona Public Serv. Co. v. Aspaas, 77 F.3d 1128, 1133 (9th Cir. 1996). As part of this unequivocal nature, a tribe's waiver must be in writing or "textual." Pan American Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 419 (9th Cir. 1989) (noting that "absent an affirmative textual waiver in the terms of a contractual agreement or tribal constitution, federal courts have
15 NICS App. 51, RICHARDSON v. ISLAND ENTERPRISES, INC. (October 2017) p. 53
consistently declined to find tribal consent to federal jurisdiction"). Further, this doctrine applies equally in Tribal Courts as it does in state or federal courts. See, e.g. Clement v. LeCompte, et. al., 22 Indian L. Rep. 6111, 6112-6115 (Oct. 1995). “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.
Under the Squaxin Island Tribal Code,
The Squaxin Island Tribe hereby waives the sovereign immunity of the Tribe and employers imbued with the sovereign immunity of the Tribe solely for the purposes of the issuance of process, actions, and remedies provided by this code. This is a limited waiver of sovereign immunity, and shall not be construed as a consent to suit in any court other than the Tribal Court or for the enforcement of any remedies other than those remedies expressly provided by this code.
SITC 12.01.060. This language can be read as tribal recognition and confirmation of the common law immunity of the Tribe from suit regarding labor and employment decisions aside from the listed, limited exceptions. It is clear that the Squaxin Island Tribe has expressly stated its intent to exercise and preserve its tribal sovereign immunity.
Squaxin Island Enterprises, Inc. (“IEI”) is the non-gaming enterprise operation of the Squaxin Island Tribe, wholly owned by the Tribe. A number of courts have considered whether Indian tribal agencies and businesses possess sovereign immunity. Many courts have found a Tribe’s sovereign immunity extends to its agencies and wholly-owned businesses. The Nooksack Tribal Court of Appeals in Olson v. Nooksack relied on the following sources to determine that the Indian Housing Authority shared in the Tribe’s sovereign immunity: Dillon v. Yankton Sioux Tribe Housing Authority, 144 F.3d 581, 583-84 (8th Cir. 1986); Weeks Construction, Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668 (8th Cir. 1986); Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185 (9th Cir. 1998); cert. denied, 528 U.S. 877 (1999) (consortium formed by several tribes has immunity from suit); Olson v. Nooksack, 6 NICS App. 49. This Court agrees that IEI is included within the protections of sovereign immunity. Further, this Court finds no express, written waiver of said sovereign immunity within the context of this case.
15 NICS App. 51, RICHARDSON v. ISLAND ENTERPRISES, INC. (October 2017) p. 54
JURISDICTION
“The Employment Court shall have exclusive jurisdiction over all claims arising from employment relations on the Squaxin Island Reservation, including but not limited to hiring, discipline, grievances, discharge, harassment of whatever nature, retaliation, and preference.” SITC 4.04.030(B). “Decisions of the Employment Court may be appealed to the Appeals Court. The Appeals Court shall remand the case if it determines that the decision of the Employment Court was arbitrary or capricious or not supported by substantial evidence.” SITC 4.04.030(B).
The Squaxin Island Tribe asserts that “No appeal from the decision of the Employment Court shall be permitted.” Response Brief at 2. Respondents point to the plain language contained in the Employee Handbook, Section XI (Grievances and Appeals) to support this assertion.
In C.S. v. Tulalip Tribes Housing Dept. there was an appeals ban when an employee was terminated “pursuant to attendance policies.” C.S. v. Tulalip Tribes Housing Dept., 10 NICS App. 6. (February 2011). The employee here was dismissed for violation of attendance policies and appealed to the Appeals Court on the basis that the attendance charges were a pretext for dismissal on other grounds. The Tulalip Court of Appeals determined that requiring such an inquiry would deprive the appeal ban of any practical effect. Because the appeal ban applied to absentee related dismissals generally, the employee had no right to appeal dismissal to the Appeals Court, and neither the Employment Court nor the Appeals Court had jurisdiction to consider the employee’s appeal. The appeal was dismissed. C.S. v. Tulalip Tribes Housing Dept.
In this case, the Appellant signed an acknowledgment that the terms and conditions included in the Employee Handbook applied to him and to his employment. Among these terms and acknowledgements were limitations on remedies under the grievance procedures. We hold that this Court has no jurisdiction to hear a case arising from an employment dispute where the Employee Handbook prohibits any further review beyond the Employment Court, and the employee signed the acknowledgement limiting his remedies under specifically delineated grievance procedures.
AT-WILL EMPLOYMENT
“The Squaxin Island Tribal Court has recognized only two limited exceptions to the at-will employment doctrine, namely the public policy and implied contract exceptions.” Burrow v. Squaxin Island Gaming Enterprise, 10 NICS App. 54 (2011). In Burrow, the Employment Court found that there was not cause for termination, but the court upheld the grievance committee’s decision to terminate the employee based on the employee’s at-will status. In this case, the Employment Court did find reasons for Mr. Richardson’s termination, and he is still an at-will employee. This means that the Employment Court’s decision would likely not be found to be “arbitrary or capricious” under 4.32.150(C), even if this Court were to have jurisdiction, which we do not.
15 NICS App. 51, RICHARDSON v. ISLAND ENTERPRISES, INC. (October 2017) p. 55
ORDER
This Court hereby DISMISSES Appellant’s appeal, as it is barred by the doctrine of sovereign immunity.
Doucet, C.J. (concurring)
I agree with the majority’s result, but I write separately because I would decide the reason for dismissal narrowly. The appeal should be dismissed solely for the reason that Mr. Richardson having signed the acknowledgment agreeing to follow the policies and procedures set forth in the Employee Handbook limited his right to appeal beyond the Employment Court.
If the Employee Handbook is a binding agreement between the parties, then Mr. Richardson may not appeal to this Court. The Employee Handbook states in the acknowledgment signed by Mr. Richardson that the contents of the Employee Handbook should not be interrupted as a contract. The acknowledgment also contains the statements, “This handbook contains policies and regulations that apply to me,” and “I agree to read the handbook and follow it during my employment with Island Enterprises Inc.” Although the Employee Handbook by its own language states it is not a contract, the parties followed its policies and procedures during the term of Mr. Richardson’s employment and during the grievance process. Therefore, the Court can conclude that the parties intended to be bound by the Employee Handbook’s policies and procedures, including the provision that “No appeal from the decision of the Employment Court shall be permitted.”
Mr. Richardson argues that the Employee Handbook is not law. Based on the record in this appeal, I agree. IEI is a non-gaming commercial enterprise of the Tribe. In 2013, the IEI Board of Directors adopted the Employee Handbook. There is no evidence in the record as to whether the Tribal Council adopted the Employee Handbook to be the law of the Tribe. I cannot conclude from the record in this appeal that the Employee Handbook is the law of the Tribe. Therefore, without the signed acknowledgment, the Employee Handbook by itself has no authority to extinguish Mr. Richardson’s right to an appeal.
At the beginning of his employment with IEI, Mr. Richardson agreed to a specified grievance process set forth in the Employee Handbook that did not include an appeal to the Court of Appeals from the Employment Court. Therefore, by agreement of the parties, an appeal may not be had beyond the Employment Court.
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.
We do not reach the merits of Appellant’s argument due to sovereign immunity.
Although the judge in the Employment Court proceeding advised the Appellant that he could appeal to the Squaxin Island Court of Appeals, we find this advice to be in error.