6 NICS App. 49, OLSON v. NOOKSACK (June 2001)
IN THE NOOKSACK TRIBAL COURT OF APPEALS
NOOKSACK INDIAN RESERVATION
DEMING, WASHINGTON
George and Leanna Olson, Plaintiffs/Appellants,
v.
Nooksack Indian Housing Authority and Nooksack Tribal Council, Defendants/Respondents.
No. NOO-HSG-4/00-034 (June 20, 2001)
SYLLABUS*
Trial court dismissed claims for damages against the Tribal Council and the Tribal Housing Authority based on sovereign immunity. As to the Tribal Council, Court of Appeals holds that Tribe did not expressly waive its sovereign immunity and therefore the Council is immune to suit for damages. As to the Housing Authority, Court of Appeals holds that tribal ordinance authorizing Housing Authority to sue and be sued does not in itself constitute a waiver of sovereign immunity. Court notes that injunctive relief may be available to Appellants, but such relief was not requested. Order of trial court affirmed.
Before: Lisa E. Brodoff, Chief Justice; Patricia C. Paul, Justice; Rose E. Purser, Justice.
Appearances: Mr. Desmond Kolke, via telephone, counsel for Appellants George and Leanna Olson; Ms. Joanne Foster, counsel for Respondent Nooksack Indian Housing Authority; Ms. Jerrie Simmons, counsel for Respondent Nooksack Tribal Council.
Also appearing on record were Council members Richard D. George and George Swanaset, Sr., and Housing Director Marianne Kelly.
OPINION
This matter came before the Nooksack Tribal Court of Appeals for oral argument on April 30, 2001, pursuant to a Notice of Appeal filed by Appellants George and Leanna Olson on November 16, 2000. Appellants appeal from the November 2, 2000 Memorandum Opinion and Order wherein the Nooksack Trial Court found the Tribe had not waived its sovereign immunity and dismissed the Olsons’ complaint against Respondents. Subsequent to oral arguments, this
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Court issued a Memorandum Decision affirming the lower court’s November 2, 2000 order. This full Opinion and Order follows.
I. Background
On May 19, 2000 Plaintiffs/Appellants George and Leanna Olson commenced an action in Nooksack Tribal Court (trial court) against Respondents Nooksack Indian Housing Authority and Nooksack Tribal Council. The Olsons alleged that Respondents had violated their civil rights under the Indian Civil Rights Act (ICRA) and their right to protection under Nooksack tribal law by forcibly and unlawfully evicting them from their home at 2517 Suchanon Drive in Everson, Washington. Respondents denied the allegations and moved for dismissal based on the affirmative defense of tribal sovereign immunity.
The trial court heard oral argument on Respondents’ motion to dismiss on September 6, 2000. Subsequently, on November 2, 2000, the trial court issued its Memorandum Opinon and Order, which held that (1) absent an explicit waiver, the Nooksack Indian Housing Authority is immune from suit; (2) no waiver exists in the code, nor has the court been provided with a specific waiver by the council or by contract; (3) and the Tribal Council and the Nooksack Indian Housing Authority are immune from suit; and dismissed the Olsons’ action against both Respondents. It is from this order that the Olsons appeal. Appellants further allege that article IX of the Nooksack Tribal Constitution, which adopts provisions of the Indian Civil Rights Act, constitutes a waiver of tribal sovereign immunity.
II. Jurisdiction
This Court has subject matter jurisdiction over this appeal pursuant to art. VI, §2(A)(3) of the Nooksack Tribal Constitution. The act which is the subject of this appeal occurred within the exterior boundaries of the Nooksack Indian Reservation, giving rise to territorial jurisdiction. Appellants consent to this Court’s personal jurisdiction over them by voluntarily bringing this appeal before the Nooksack Tribal Court of Appeals.
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III. Discussion
A. Sovereign Immunity
1. The Nooksack Tribe
The immunity of Indian tribes from suits in federal and state courts is well-established; such suits may not be entertained unless "Congress has authorized the suit or the tribe has waived its immunity." Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. 523 U.S. 751, 754 (1998); C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, ___ US ___, 121 S. Ct. 1589 (2001). In Oklahoma Tax Commission v. Potawatomi Tribe, 498 U.S. 505 (1991), the Court explained:
A doctrine of Indian tribal sovereign immunity was originally enunciated by this Court and has been reafffirmed in a number of cases. . . . Congress has consistently reiterated its approval of the immunity doctrine [in Acts which] reflect Congress' desire to promote the "goal of Indian self-government, including its 'overriding goal' of encouraging tribal self-sufficiency and economic development."
498 U.S. at 510 (citations omitted).
In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978), the Court, citing previous decisions, described tribes “as possessing the common law immunity from suit traditionally enjoyed by sovereign powers.”1 Because this common law immunity is an inherent attribute of sovereignty similar to the immunity of the United States, it shields tribes from suit absent an express waiver by the tribe. See Smith v. Confederated Salish and Kootenai Tribes, 23 Ind. L. Rep. 6256, 6257 (Ct. App. of Confed. Salish and Kootenai Tribes 1996). Other courts have noted that tribal sovereign powers predate the establishment of the United States and are based on the tribes' status as autonomous political entities that retain certain natural rights related to self-governance. Ninigret Development Corp. v. Narragnasett Indian Wetuomuck Housing Authority, 207 F.3d 1, 29 (1st Cir. 2000), citing Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832). This inherent nature of tribal sovereign immunity requires this court to conclude that it similarly extends to actions brought against tribes in tribal courts.
Moreover, the Nooksack Constitution provides in article VI, §2(A)(3) that the tribal court "shall have jurisdiction over all Indians on tribal lands; over all civil matters concerning members of the Nooksack Indian Tribe; over all matters concerning the establishment and functions of the tribal government, provided that nothing herein shall be construed as a waiver
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of sovereign immunity by the tribal government." [Emphasis added]. This language can only be read as tribal recognition and confirmation of the common law immunity of the Tribe from suit. Further, it is well-settled that a waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." Martinez, 436 U.S. at 60 (1978); United States v. Testan, 424 U.S. 392, 399, S.Ct. 948, 953, 47 L.Ed. 114 (1976); United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969).
It is clear that the Nooksack Indian Tribe has expressly stated its intent to exercise and preserve its tribal sovereign immunity. We agree with the lower court that no explicit waiver of immunity can be found in the tribal code, nor has one been expressly effected through Council action or by contract. Therefore, we hold that the Nooksack Indian Tribe has not expressly waived its sovereign immunity. We further hold that the language in article IX of the Tribal Constitution does not constitute an unequivocal and clearly expressed waiver of sovereign immunity and, therefore, that the Tribe and, as the Tribe’s governing body, the Tribal Council, are immune from damage suits under the Indian Civil Rights Act.
2. Nooksack Indian Housing Authority
We next address whether the Tribe's immunity from suit extends to the Nooksack Indian Housing Authority. The Housing Authority is an arm of the tribal government established by tribal ordinance to provide housing for tribal members. It is authorized "to sue and be sued in its corporate name upon any contract, claim or obligation arising out of its activities under [the] ordinance . . . ." Nooksack Tribal Code §40.06.020. The ordinance also provides that the Housing Authority may "agree by contract to waive any immunity from suit which it might otherwise have . . . ." Id.
A number of courts have considered whether Indian housing authorities possess immunity from suit. We agree with the overwhelming majority of courts that have found a Tribe’s sovereign immunity extends to its agencies, including Indian Housing Authorities. See 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); Canby, American Indian Law at 87 (1998); F. Cohen, Handbook on Federal Indian Law at 37 (1982).
Having determined that the Housing Authority is cloaked with the tribe’s sovereign immunity, we must then examine whether the "sue and be sued" clause of the Nooksack Tribal Code waives that immunity. Most authority holds that "sue and be sued" provisions do not, in and of themselves, waive sovereign immunity. A recent case persuasively summarizes the law in this area:
An occasional case appears to have held that the enactment of such an ordinance, without more, constitutes an effective waiver of sovereign immunity. See, e.g.,
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Snowbird Const. Co. v. United States, 666 F. Supp. 1437, 1440-41 (D.Idaho 1987). In our judgment, the better view holds that the enactment of such an ordinance, in and of itself, does not waive a tribe's sovereign immunity. See Dillon, 144 F.3d at 583-84; Buchanan v. Sakaogon Chippewa Tribe, 40 F.Supp.2d 1043, 1047 (E.D. Wis. 1999). After all, the ordinance, by its terms, authorizes the Authority to shed its immunity from suit "by contract," and these words would be utter surplusage if the enactment of the ordinance itself served to perfect the waiver. Statutes and ordinances normally should be read to give effect to every word and phrase, see, e.g., Lopez-Soto v. Hawayek, 175 F.3d 170, 173 (1st Cir. 1999); United States v. Ven-Fuel, Inc. 758 F.2d 741, 751-52 (1st Cir. 1985), and there is no compelling reason to make this case an exception.
Ninigret Development Corp. v. Narragnasett Indian Wetuomuck Housing Authority, 207 F.3d 21, 30 (1st Cir. 2000).
The Supreme Court recently reiterated that tribal waivers of immunity must be clear and express. Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509 (1991); C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, ____ U.S. ___, 121 S.Ct. 1589 (2001). The language in the tribal housing code authorizing the Housing Authority to “sue and be sued” is not, by itself, sufficiently clear to constitute a waiver of sovereign immunity. Therefore, we affirm the lower court’s holding that the Nooksack Indian Housing Authority is immune from suit.
B. Ex Parte Young
While we hold here that the Tribe is immune from a suit for damages because there is no explicit waiver of sovereign immunity, it is our opinion that the Tribe is conferring rights under ICRA in article IX of the Constitution without an apparent remedy for a violation of those rights. During oral argument, this Court asked Respondents what possible remedies might be available to a complainant, assuming arguendo that all of the allegations in the complaint are true. Respondents cited the possibility of seeking removal of tribal leaders via election or the political process as a remedy for ICRA violations. Respondents also suggested that political pressure might be brought to bear in order to persuade the tribal government to waive its sovereign immunity with regard to future ICRA suits.
We remain unconvinced that these options provide true relief for alleged ICRA violations. Rather, they contemplate only future actions that provide no current compensatory or injunctive relief to these complainants in terms of getting their home back or receiving monetary damages to provide them with new housing. Given our decision that the Nooksack Tribe has not waived its sovereign immunity, the ICRA essentially becomes an aspirational statute with no real stick to enforce it when the tribe violates individual rights.
6 NICS App. 49, OLSON v. NOOKSACK (June 2001) p. 54
While we are convinced that the case law fully supports our holding that the Tribe has not explicitly waived its immunity from a suit for damages under ICRA, case law also supports the possibility that another remedy may be available to Appellants to enforce their right not to be evicted from their home without appropriate legal process. We note here, without so deciding, that Appellants may be able to bring an action for declaratory and injunctive relief against the individual housing authority officials whom they allege illegally removed them from their home. A lawsuit against the individual officials could seek to enjoin the officials from removing the Olsons from their home until the appropriate legal process was followed to completion. Through the use of the non-damage remedy of injunctive relief against the individual officials rather than the Tribe itself, the constitutional adoption of ICRA protections would become more than aspirational. Rather, violations of ICRA could be remedied by suing to enjoin the violations themselves. The Tribe’s immunity from a suit for damages would remain intact, while the individual tribal members would still have some relief from ICRA violations.
The Martinez Court viewed this concept of a suit seeking injunctive relief against individual tribal officials favorably. In Martinez, 436 U.S. at 59 (1978), the Court noted that tribal officials may be subject to suit under the doctrine of Ex parte Young, 209 U.S. 123 (1908) (“[a]s an officer of the Pueblo, petitioner . . . is not protected by the tribe’s immunity from suit.”).
The Ex parte Young doctrine was developed in the context of implying a remedy for state official conduct that violates federal law when the Eleventh Amendment to the Constitution precludes direct actions against the state. It provides that “a federal court has jurisdiction over a suit against a state officer to enjoin official actions that violate federal law, even if the State itself is immune from suit under the Eleventh Amendment.” Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 288 (1997)(O’Connor, J. concurring). “Although the state is the real party interest, the Eleventh Amendment was never intended to grant states the ability to subvert the supremacy clause by granting immunity to the states or their officials from judicial orders to comply with federal law.” Nowak and Rotunda, Constitutional Law at 53 (6th ed. 2000).
Various tribal courts as well as the Ninth Circuit have adopted this same rule in order to ensure that the requirements of ICRA and other federal and tribal statutes are enforceable against tribal officials. In Moran v. Council of the Confederated Salish and Kootenai Tribes, 22 Ind. L. Rep. 6149 (C.S. & K.T.Ct.App. 1995) the Confederated Salish and Kootenai Tribal Court of Appeals considered allegations that a tribal chairman acted in violation of tribal law when he issued a clemency order freeing a prisoner. After holding that the tribe itself possessed immunity from suit, the court held that the Ex parte Young doctrine applies to permit actions against tribal officials when such officials are alleged to have acted beyond the scope of their authority. Id. at 6157. Burlington Northern R..R.. Co. v. Blackfeet Tribe, 924 F.2d 899, 902 (9th Cir. 1991), cert. denied, 505 U.S. 1212 (1992) (“tribal sovereign immunity does not bar a suit for prospective relief against tribal officers allegedly acting in violation of federal law.” ). The Moran case was cited favorably in Smith d/b/a Frosty’s v. Confederated Salish & Kootenai Tribes, 23 Ind. L. Rep. 6256, 6257-58, (C.S. & K.T.Ct.App. 1996), which held that individual tribal officers and
6 NICS App. 49, OLSON v. NOOKSACK (June 2001) p. 55
employees have “no immunity to declaratory and injunctive relief.” “[I]f plaintiff could show that the council policies were contrary to federal law or the tribal constitution, she would be entitled to injunctive relief against the individuals charged with enforcement of the policies.” Id. at 6258.
The Eleventh Circuit Court of Appeals has also recognized the Ex parte Young doctrine in an action brought against officials acting outside the scope of their authority. In Tamiami Partners, Ltd. v. Miccosukee Tribe Of Indians Of Florida, 63 F.3rd 1050 (11th cir. 1995), the court relied on Ex parte Young in affirming the district court's ruling that the Tribe's sovereign immunity did not shield the individual defendants from Tamiami's suit.2
IV. Conclusion
We reiterate that we do not decide today whether an Ex parte Young remedy is, in fact, available to parties aggrieved by alleged violations of ICRA. That issue is not directly before us and we leave that decision for another day when this court is presented with an action for declaratory and injunctive relief against individual tribal officers for violations of the ICRA.
Nevertheless, based on the foregoing discussion, we hold that there is no language in either the Nooksack Tribal Code or the Tribal Constitution that constitutes an express waiver of tribal sovereign immunity. We further hold that absent an express waiver, the Nooksack Indian Tribe, Nooksack Tribal Council, and Nooksack Indian Housing Authority are immune from suit. Therefore, we hereby affirm the decision of the trial court dismissing this action based on tribal sovereign immunity.
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 Martinez Court cited to Turner v. United States, 48 U.S. 354, 358 (1919); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512-513 (1940); Puyallup Tribe, Inc. v. Washington Dept. of Game, 433 U.S. 165, 172-173 (1977).
The application of the Ex parte Young doctrine, however, is not without limitation. In a subsequent appeal to the 11th Circuit, the court held that Ex parte Young does not permit individual officers of a sovereign to be sued when the relief requested would, in effect, require the sovereign’s specific performance of a contract. Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of Florida, 177 F.3d 1212, 1226 (11th Cir. 1999). Therefore a court may place limitations on the reach of an Ex parte Young claim against the individual officials, depending on the circumstances of each case brought before it.