6 NICS App. 36, KERR v. MUCKLESHOOT (February 2001)
IN THE MUCKLESHOOT TRIBAL COURT OF APPEALS
MUCKLESHOOT INDIAN RESERVATION
AUBURN, WASHINGTON
Lana Kerr, Appellant/Plaintiff,
v.
Muckleshoot Indian Tribe, dba Muckleshoot Casino, Muckleshoot Gaming Commission, and Muckleshoot Gaming Enterprises, Appellee/Respondent.
No. MUC-CIV-9/00-056 (February 22, 2001)
SYLLABUS*
Trial court held that plaintiff’s claims, including claim for wrongful discharge, are barred by tribal sovereign immunity. Ruling of trial court affirmed.
Before: Lawrence Numkena, Chief Justice; Darwin S. Long Fox, Justice; Richard A. Woodrow, Justice.
OPINION
This matter came before the Muckleshoot Tribal Court of Appeals pursuant to a timely Notice of Appeal filed by Lana Kerr on December 26, 2000. Ms. Kerr appeals from the December 26, 2000 trial court Order on Motion to Dismiss, which granted Appellee Tribe's motion to dismiss.1
On January 26, 2001, prior to accepting or denying Ms. Kerr's appeal, this Court ordered Ms. Kerr to perfect her appeal by submitting a short statement of the reasons or grounds for her appeal pursuant to Muckleshoot Tribal Code § 9.03.01(b).2
6 NICS App. 36, KERR v. MUCKLESHOOT (February 2001) p. 37
In its December 26, 2000 order, the trial court dismissed the case against defendants Muckleshoot Indian Tribe, Muckleshoot Casino, Muckleshoot Gaming Commission, and Muckleshoot Enterprises on sovereign immunity grounds. Appellant appeals from that dismissal challenging the validity of the "immunity statutes".
It is well‑established law that Indian tribes enjoy the sovereign's common‑law immunity from suit. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). This immunity extends to agencies of the tribe, Weeks Construction. Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668 (8th Cir. 1986), and to commercial activities of the tribe, Kiowa Tribe v. Mfg. Technologies, Inc., l18 S. Ct. 1700 (l998). Tribal sovereign immunity may be abrogated in one of only two ways: Congress may waive the tribe's immunity or the tribe itself may do so. As a necessary corollary, and contrary to Appellant's assertion, tribal courts do not have the authority to waive tribal sovereign immunity, in the interest of justice of otherwise. Further, whether Congress or the tribe waives immunity, the waiver cannot be implied but must be unequivocally expressed. Martinez, 436 U.S. 49 (1978).
The lower court found no such unequivocally expressed waiver of immunity and, accordingly, held the Muckleshoot Tribe and its entities to be immune from suit.3 This Court agrees. Appellant raises no other reviewable issues to this Court.
Therefore, based on the foregoing, this appeal is hereby denied.
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.
Ms. Kerr's original and amended complaints list several causes of action, including wrongful discharge. This Court notes that, irrespective of her own belief in the possible futility of such action, exhaustion of her administrative remedies with regard to personnel issues was prerequisite to the jurisdiction of either the trial or appellate court over her wrongful discharge claim.
On February 5, 2001, counsel for Appellant filed a pleading entitled "Appellant's Response to Court's Minute Order”, which prefaced the requested statement with an assertion that "nothing in the court rules provided by the Muckleshoot Tribe and adopted as their own makes such a pleading or response a precondition to perfection to her appeal.” Muckleshoot Tribal Coda §9.03.01(b) expressly provides:
The Notice of Appeal shall specify the parties to the appeal, the order, commitment or judgment appealed from and short statement of the reasons or grounds the appeal….
Appellant timely filed a notice of appeal on December 26, 2000. Pursuant to §9.03.0l the notice of appeal as filed was defective as to form and content. At the time the notice of appeal came under consideration by the Court of Appeals, the pleading remained defective as to form and content. This Court's January 26, 2001 order was issued to allow Appellant an opportunity to cure that defect.
On November 24 2000, the trial court held a hearing on Defendants' Motion to Dismiss and Plaintiff’s Motion to Amend her complaint. At that time, the trial court orally denied Ms. Kerr's motion to amend her complaint to add Officer William McDonald as a defendant (Reporter's Transcript at 28), finding that Officer McDonald had been acting within the scope of his employment (RT at 27).