2 NICS App. 160, Hudson v. Hoh Tribe (May 1992)
IN THE HOH TRIBAL COURT OF APPEALS
HOH INDIAN RESERVATION
FORKS, WASHINGTON
Yvonne Hudson v. Hoh Indian Tribe, d/b/a The Hoh Tribal Business Committee
No. HOH-CIV-4/91-015 (May 28, 1992)
SUMMARY
Terminated after six years of employment by the Hoh Indian Tribe, tribal member Hudson filed a complaint alleging wrongful discharge. The Tribe moved to dismiss on the grounds it had not waived its sovereign immunity to suit. In lieu of composing a separate written response to the Tribe's motion, Hudson wrote several comments on her own copy of the motion and filed this annotated copy as her response. The Hoh Tribal Court found that Hudson's annotations amounted to a stipulation of the facts and law as set forth in the Tribe's motion. As a result, the court concluded that Hudson had accepted the Tribe's sovereign immunity argument and had agreed that her remedy would be limited to filing a petition for redress of grievances under Article IX of the Tribal Constitution. The court thus granted the motion to dismiss.
The Tribal Court of Appeals reversed. It first found that Hudson's annotations did not constitute a stipulation that she had no right to sue the Tribe. Filing a lawsuit, the appellate panel noted, was itself evidence that the appellant believed she had a remedy before the Tribal Court. The court then went on to rule that by guaranteeing tribal members the right to petition for redress of grievances, Article IX of the Hoh Constitution constitutes a waiver of sovereign immunity to suit by the Tribe. This is because the right of access to courts is implicitly included in the right to petition. The court declined to decide the issue of whether or to what extent the Indian Civil Rights Act, 25 U.S.C. §§1301-1303, limits a tribe's sovereign immunity to suit.
FULL TEXT
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DECISION ON APPEAL
HOSTNIK, Chief Justice:
Plaintiff Yvonne Hudson filed a complaint in the Hoh Tribal Court alleging that she was wrongfully discharged from employment by the Hoh Indian Tribe. The Tribe responded with a Motion to Dismiss based on sovereign immunity. Dismissal was granted by the trial court, and affirmed after reconsideration. Ms. Hudson has appealed the trial court's dismissal to the Hoh Tribal Court of Appeals. Oral argument on the appeal was conducted on December 19, 1991.
I. FACTUAL BACKGROUND
Plaintiff Yvonne Hudson is a member of the Hoh Indian Tribe. She was employed by the Tribe from 1984 through November 24, 1990. On November 10, 1990, the General Council of the Hoh Indian Tribe met and decided to eliminate plaintiff's position, effective November 24, 1990. Two months later, the Vice-Chairman of the Hoh Indian Tribe was appointed to the same position which the plaintiff formerly held.
The plaintiff filed her complaint on March 29, 1991. The defendants filed a Motion to Dismiss based upon sovereign immunity approximately two and a half months later. The defendants contend that the plaintiff failed to show that the Hoh Indian Tribe had waived its sovereign immunity and consented to her suit in the Hoh Tribal Court.
The trial court dismissed the complaint based upon the theory that plaintiff agreed her remedy would be to file a Petition for Redress pursuant to Article IX of the Hoh Tribal Constitution. Article IX states as follows:
All members of the Hoh Tribe shall be accorded equal protection of the law under this constitution. No member shall be denied any of the rights or guarantees enjoyed by citizens under the Constitution of the United States, including but not limited to, freedom or [sic] religion and conscience, freedom of speech, right to orderly association or assembly, the right to petition for action or the redress of grievances, and due process of law.
The trial court pointed out that the plaintiff did not file a separate response to the defendant's Motion to Dismiss, but merely wrote comments upon her copy of the defendant's motion, and filed that annotated copy of the motion as her response. In the trial court's view, the annotations added by plaintiff on defendant's motion amounted to a stipulation to the facts and law, including an affirmation that plaintiff's remedy would be to file a petition for action or redress of grievance with the Business Committee or General Council, as guaranteed by Article IX of the Tribal Constitution.
The trial court did not specifically address the defendant's sovereign immunity argument in issuing its Order of Dismissal. However, the Tribal
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Court of Appeals is compelled to examine all facts and proceedings before the trial court and the arguments presented to the trial court in determining whether there are grounds in the record to support the trial court's dismissal of the plaintiff’s complaint with prejudice.
II. ANALYSIS
A. Alleged Stipulation
In responding to the defendant's Motion to Dismiss, the plaintiff added an annotation to the motion stating that various exhibits accompanying an affidavit submitted by the defendant were "acceptable," and further that she "requests [those] exhibits be admitted for the purpose of trial as well as this Motion." Among the exhibits deemed "acceptable" was a copy of the Constitution of the Hoh Tribe. The trial court found that this language constituted a stipulation by the plaintiff that her only remedy would be to file a petition for redress of grievances under Article IX of the Constitution.
This court is not convinced that the plaintiff’s language constituted such a stipulation. By contesting the Motion to Dismiss, the plaintiff demonstrated that she did not agree that filing a petition for redress of grievances was her only remedy. The plaintiff obviously felt that she had a remedy before the Hoh Tribal Court, which is why she filed her complaint with the court in the first place. There is no clear indication that the plaintiff agreed that her only remedy was that stated under Article IX of the Hoh Constitution. Therefore, the trial court cannot be affirmed on the basis of the plaintiff's purported stipulation.
B. Sovereign Immunity
The Tribe's Motion to Dismiss was based upon the defense of sovereign immunity. As the defendant points out, tribal sovereign immunity has been reaffirmed in numerous cases. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S. Ct. 1670, 56 L. Ed.2d 106 (1978). However, such cases deal with immunity of Indian tribes from suit in federal or state court, not tribal court. The Martinez decision specifically found that tribes have the right to make laws and to enforce their laws in their own forums. Id. at 59-60, 65-69. Such a forum would be tribal court.
Immunity from suit arises as a result of the Tribe's status as a sovereign power. Traditionally, all sovereigns were immune from suit at common law. A waiver of this immunity, to be effective, must be unequivocally expressed, and cannot be implied. Id. at 58. Therefore, the issue becomes whether or not the Hoh Indian Tribe has waived its sovereign immunity in connection with actions challenging personnel decisions. The court must look to the Constitution and laws of the Hoh Indian Tribe in making this determination.
The Hoh Tribe has passed a Personnel Policies and Procedure Ordinance. The Ordinance deals with the hiring, disciplining, and termination of employment of Tribal employees. Section 14 of the Ordinance specifies
2 NICS App. 160, Hudson v. Hoh Tribe (May 1992) p. 163
procedures which must be followed when employment is terminated. This includes notification of at least two (2) weeks, plus payment of all monies due to the date of termination. If an employee feels that his or her termination is improper, Section 8 of the Ordinance provides the following grievance procedure:
Any Tribal employee having a grievance shall be able to take that grievance directly to the Tribal Business Committee, who will make a fair and impartial disposition.
(A) The employee should present his grievance, either orally or in writing, to the Tribal Business Committee Chairman.
(B) The Tribal Business Committee Chairman shall, upon receipt of a grievance, notify and call a Tribal Business Committee meeting within five (5) working days. A written copy shall be given to the Business Manager.
(C) Any employee filing a grievance should be free from restraint, coercion, discrimination or reprisal as a result of filing.
(D) The Tribal Business Committee shall set a date to review the grievance and will request that all parties involved in the complaint be present.
(E) Any action by the Tribal Business Committee is final.
Plaintiff requested and was granted a hearing before the Tribal Business Committee. As stated in Section 8, above, the action by the Tribal Business Committee is final. There is no right of appeal to the Hoh Tribal Court. The Hoh Tribe has not explicitly waived its immunity from suit under the terms of the Personnel Policies and Procedures Ordinance.
C. Right to Petition for Redress of Grievances
The only basis upon which a waiver of sovereign immunity can be argued is Article IX of the Hoh Constitution. Article IX is entitled "Bill of Rights." It provides that "No 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..." 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 the Hoh Tribal Constitution in the same manner as that right is interpreted by the United States Supreme Court under the First Amendment
2 NICS App. 160, Hudson v. Hoh Tribe (May 1992) p. 164
to the Constitution of the United States, which guarantees to United States citizens the right to petition for redress of grievances.
The United States Supreme Court has declared that the right to petition extends to all departments of the government. The right of access to the courts is indeed one aspect of the right of petition. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S. Ct. 609, 30 L. Ed.2d 642 (1972). Other courts have also recognized the right of an individual to file a lawsuit as an expression of the constitutional guarantee of the right to petition. Civil suit against the government is one form of petition for redress. People v. Siragusa, 366 N.Y.S.2d 336, 342, 81 Misc. 2d 368 (1975). The filing of a lawsuit carries significant constitutional protection, implicating the First Amendment right to petition the government for redress of grievances, and the right of access to courts. Hoeber, for and on behalf of N.L.R.B. v. Local 30, 939 F.2d 118, 126 (1991).
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. This is consistent with interpretations of the same right under the Indian Civil Rights Act, 25 U.S.C. §1302(1). See Johnson v. Lower Elwha Tribal Community, 484 F.2d 200, 202 (1973); Daly v. United States, 483 F.2d 700, 705 (1973). Defendant's right to petition for redress of grievances is clearly not limited only to filing a petition with the Hoh Business Committee. According to the authority cited above, the plaintiff in this case has a clear right to file her petition for redress of grievances in the Hoh Tribal Court.
Therefore, we construe a petitioner's right to a hearing under Section 8 of the Personnel Policies and Procedures Ordinance to be an administrative remedy which can be appealed to Hoh Tribal Court pursuant to Article IX of the Hoh Tribal Constitution. Since the plaintiff--the petitioner in this case--exhausted her administrative remedy, she is now able to proceed with this action in Tribal Court.
D. Due Process
Another limitation upon tribal sovereign immunity is the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303. The purpose of the Indian Civil Rights Act is to "'secure for the American Indian the broad constitutional rights afforded to other Americans,' and thereby to 'protect individual Indians from arbitrary and unjust actions of tribal governments.'" Martinez, 436 U.S. at 61 (quoting S. Rep. No. 841, 90th Cong., 1st Sess., 5-6 (1967)).
One of the rights guaranteed to individual Indians by the Indian Civil Rights Act is the right to due process. 25 U.S.C. § 1302(8). This right is also guaranteed to Hoh Tribal members by Article IX of the Constitution of the Hoh Indian Tribe. As noted above, the Tribe has provided a mechanism for review of personnel dismissals. The plaintiff exercised this right, and was granted an opportunity to be heard before the Tribal Business Committee. The appellate panel has reviewed a copy of the transcript of that hearing.
2 NICS App. 160, Hudson v. Hoh Tribe (May 1992) p. 165
Whether that hearing violated the plaintiff’s due process rights is an issue we need not reach in light of our ruling above.
III. ORDER
The right guaranteed to the plaintiff by the Hoh Tribal Constitution to petition the government for redress of grievances permits her to file this action in Hoh Tribal Court. No claim of sovereign immunity by the Hoh Tribe can circumvent the plaintiff’s constitutional right. Accordingly, this action is hereby remanded to the trial court for further proceedings, consistent with this opinion.
FRY and ROE, Associate Justices, concur.