1 NICS App. 60, Smith v. Port Susan Camping Club (October 1989)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

MARYSVILLE, WASHINGTON

Robert N. and Arzelie L. Smith v. Port Susan Camping Club, et al.

No. TUL-CI-10/88-277 (October 17, 1989)

SUMMARY

The Court of Appeals found that an action seeking damages, an injunction, and a declaration voiding actions of the club's Board of Directors did not arise under a tribal ordinance. Therefore, the trial court's dismissal of the action for lack of subject matter jurisdiction was affirmed, as the tribe's civil jurisdiction is limited to matters arising under tribal ordinances.

However, a new ordinance establishing subject matter jurisdiction over disputes between the club and its members was to be applied retroactively, despite a lack of evidence of the tribe's intent, where the ordinance is construed as remedial rather than substantive.

FULL TEXT

Before:

Chief Justice Elbridge Coochise, Justice Charles R. Hostnik, and Justice Elizabeth Fry.

HOSTNIK, Justice:

NATURE OF ACTION

This action was filed in October of 1988, alleging that certain conduct of the Board of Directors of the Port Susan Camping Club violated the Club's charter, bylaws, and common law duties. The action sought damages, an injunction, and a declaration voiding certain actions of the Club's Board of Directors.

The Club filed a Motion to Dismiss on the basis that the Tribal Court lacked jurisdiction over the subject matter of the action. The Club contended that it was an agency of the Tribe and was therefore cloaked with the Tribe's sovereign immunity. In December 16, 1988 the trial court entered an Order of Dismissal based on lack of personal and subject matter jurisdiction.

II. DISCUSSION

Sovereign immunity is not the issue on appeal. The Club is not an agency of the Tribe merely because it received its corporate charter from the Tribe. Moreover, as discussed below, it's clear that the Tribe did not intend to cloak the club with its sovereign immunity.

1 NICS App. 60, Smith v. Port Susan Camping Club (October 1989) p. 61

The primary issue in this case is whether the trial court had subject matter jurisdiction to hear this action under Section 1.2.3.1 of the Tulalip Law and Order Code. That section limits the civil jurisdiction of the Tulalip Tribal Court to matters which arise under tribal ordinances.

CLUB CHARTER

Does this action arise under a Tribal ordinance? Plaintiff contends the action is authorized by the Club's corporate charter.

The charter granted to the Port Susan Camping Club by the Tribe does not constitute an "ordinance." An ordinance is a legislative enactment of the Tribe. The charter granted to the Port Susan Camping Club by the Tribe merely authorizes the Club to do business within the boundaries of the Tulalip Reservation. It is a corporate charter, not a legislative enactment.

LONG ARM STATUTE

Plaintiffs' main argument is that the Tribe's long arm statute (Tulalip Law and Order Code, Section 1.2.4) provides a basis of subject matter jurisdiction. The purpose of that statute is to grant personal jurisdiction if a person commits certain acts within the boundaries of the Tulalip Reservation. Long arm statutes are not a source of subject matter jurisdiction. Pedersen Fisheries, Inc. v. Patti Industries, Inc., 563 F.Supp. 72 (D.C. 1983); Teague v. Damascus, 183 F.Supp. 446 (1960).

ORDINANCE 72

This case was filed in October of 1988. In March of 1989, the Tulalip Tribe passed an ordinance authorizing the Tribal Court to hear disputes between the Port Susan Camping Club and its members. See, Ordinance 72 (copy attached). Prior to that enactment, no other tribal ordinance authorized this suit in Tulalip Tribal Court. With the passage of that ordinance, the Tulalip Tribal Court was given the power for the first time to hear disputes such as between the parties in this case.

The provisions of Ordinance 72 itself impliedly recognize that prior to passage of that ordinance, no subject matter jurisdiction existed for the Tribal Court to hear disputes between the club and its members.

Ordinance 72 provides that since the Club was established, a number of disputes have arisen between Club members and the Club itself. The ordinance notes that the Tribal Court's jurisdiction over civil disputes was dependent upon grants of authority by Tribal ordinance. Finally, the ordinance states that there is a need to provide a Tribal forum for the adjudication of disputes between Club members and the Club. These were specific findings of the ordinance.

The ordinance then goes on to provide that the Tulalip Tribal Court "is

1 NICS App. 60, Smith v. Port Susan Camping Club (October 1989) p. 62

hereby granted jurisdiction to hear and decide and grant appropriate relief in all disputes arising between Port Susan Camping Club members and/or other persons or entities ... having dealings with the Club on the one hand and the Club, its directors, officers and managers on the other."

It is therefore clear that since passage of Ordinance 72 on March 4, 1989, the Tulalip Tribal Court has had subject matter jurisdiction to hear and resolve disputes between the Port Susan Camping Club and its members.

RETROACTIVE EFFECT OF ORDINANCE 72

The issue then arises as to whether the subject matter jurisdictional grant of Ordinance 72 can be given retroactive effect. If so, the Tulalip Tribal Court will have subject matter jurisdiction to hear this case. If not, the result of the trial court must be affirmed and the case therefore dismissed.

Unfortunately, the ordinance is not perfectly clear on its face as to whether the Tribe intended it to have retroactive effect. When faced with such an ambiguity courts normally turn to legislative history. Courts want to construe ambiguous language in a manner that upholds the intent of the Tribe. That intent is usually found in the minutes of those meetings where the ordinance was discussed.

In this case, minutes of the Tribal Board of Directors meetings during which enactment of Ordinance 72 was discussed, would have been extremely helpful to the court in determining what the Tribe's intent was concerning retroactive effect of the Ordinance. The Tribe has not made these minutes available. Therefore, this Court will have to construe the ordinance without any indication of what the Tribe intended concerning the effect of Ordinance 72 on this dispute. In such a case, we are required to follow the general rule.

Since there is no clear expression that the Tribe's Board of Directors intended the ordinance to apply retroactively, we have no choice but to follow the general rule that statutes are not given retroactive effect unless such effect is clearly expressed in the statute. Hill v. Electronics Corp. of America, 113 N.W.2d 13 at 319 (1962). However, if the statute can be construed as remedial, rather than substantive, the legislative enactment can be given retroactive effect.

As a rule all statutes are to be construed as prospective in operation unless the contrary is expressed or clearly implied. This rule is subject to exception where the statute relates solely to remedies or procedure. Krueger v. Rheen Manufacturing Co., 149 N.W.2d 142 (1967) (citations omitted).

A determination of retroactive effect will hinge upon whether Ordinance 72 relates solely to remedies or procedure, or whether any substantive rights and liabilities were altered when that ordinance was enacted. A review of the ordinance shows that as part of the findings, the Tribal Board of Directors directed the Club to operate in accord with the law governing nonprofit corporations in the State of Washington. This is contained in Finding l(a) of Ordinance 72.

1 NICS App. 60, Smith v. Port Susan Camping Club (October 1989) p. 63

Section 2 of the ordinance states:

The extent of liability [of the Club] shall be the same as that allowable under Washington State law as to non-profit corporation (sic) of this type, their directors, officers and managers. Such state law, as now enacted, or hereafter amended, is hereby incorporated as tribal law, to the extent not inconsistent with other tribal law provisions.

Since the Club was already bound by the law of Washington State as it relates to nonprofit corporations, Ordinance 72 does not appear to change the substantive law governing the operation of the Club.

It also appears that Ordinance 72 was intended to provide a Tribal forum for hearing disputes between the Club's members and its Board of Directors. The ordinance merely provides a forum within which to assert and litigate the substantive rights already in existence between the Club and its members. In that sense, Ordinance 72 is remedial, not substantive, in nature. See, Krueger v. Rheen Manufacturing Co., supra, 149 N.W.2d at 145.

TRIAL COURT RESULT CORRECT

There is no doubt that in December of 1988, the trial court was correct in dismissing this action for lack of subject matter jurisdiction. At that point in time, Ordinance 72 had not been enacted and no other Tribal ordinance authorized this action. Therefore, the trial court result was correct.

However, in view of the above discussion concerning the retroactive effect of Ordinance 72, this action should proceed to trial on the merits. A Tribal forum has now been afforded the parties to this dispute to resolve the action on its merits.

Therefore, the trial court's Order of Dismissal shall be reversed pursuant to a later legislative enactment which this court holds to be retroactive, and this case shall proceed to a trial on the merits.

COOCHISE, Chief Justice. Dissenting in part, concurring in part.

The majority has held that Ordinance 72 should be applied retroactively to vest the Tulalip Tribal Court with subject matter jurisdiction over the present Port Susan Camping Club dispute. As acknowledged in the majority opinion above, prior to the passage of Ordinance 72, the tribal court could not hear and resolve disputes between the Port Susan Camping Club and its members.

I dissent in part, because applying Ordinance 72 retroactively is an extraordinary measure, which I feel would be appropriate only if it were clear that at the time the ordinance was enacted, the Tulalip tribal legislature had intended the ordinance to reach back in time to the case at bar.

1 NICS App. 60, Smith v. Port Susan Camping Club (October 1989) p. 64

While many state courts have treated jurisdiction conferring statutes as remedial under the retroactivity doctrine, those classifications chosen by state or lower federal courts are not controlling law, and need not be adopted by tribal courts.

Granting jurisdiction to the tribal court retrospectively amounts to an "after the fact" creation of a legal right, and correspondingly creates a new legal obligation. This new legal right should not be imposed without a clear indication of legislative intent of retroactivity at the time the ordinance was enacted. The Tulalip Tribe has chosen to not provide the requested board minutes which might reveal the legislative intent behind Ordinance 72. Therefore, there is no clear legislative intent that the Ordinance be applied retroactively.

But, it is clear that dismissing this case for lack of subject matter jurisdiction would result in further costs and delays affecting all parties involved with the refiling of suit. For this reason, I concur in part with the majority opinion that Ordinance 72 should be given retroactive force and this case should therefore proceed on the merits.