6 NICS App. 212, MADISON v. TULALIP (November 2004)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP, WASHINGTON
Michelle R. Madison, Shirley D. Jones, and Lorna Henry, Appellants,
v.
The Tulalip Tribes, Appellee.
No.’s TUL-EMP-CV-ET-2003-0170, 0171 and 0172 (November 18, 2004)
SYLLABUS*
Trial court, sitting as Employment Court, dismissed suit for wrongful termination based on lack of subject matter jurisdiction. Court of Appeals holds that a legislative act of the Tribe’s Board of Directors abolishing positions created by a prior employee of the Tribe do not fall within the limited waiver of sovereign immunity contained in the Tribe’s Human Resources Ordinance. Trial court order affirmed.
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Jane Smith, Chief Justice; Robert Anderson, Justice; John Sledd, Justice. |
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Claudia M Newman for Appellants, Timothy A. Brewer for Appellee. |
OPINION
Anderson, J.:
Background
Michelle Madison, Shirley Jones and Lorna Henry (appellants) held positions with the Tulalip Tribes that were abolished by the Tribes' Board of Directors pursuant to Resolution 2003‑213. ER 2‑3; ER 14‑16. That Resolution indicated that the Board was abolishing the positions because it determined that they had been illegally established and were not included in the budget plans for the relevant years. Id. There is no allegation that the appellants engaged in any wrongful conduct. ER 9‑10. Appellants filed appeals in the Tulalip Tribes Employment Court under Tulalip Tribes Ordinance 84, challenging their termination. The Tulalip Tribes moved to dismiss the appeals based on lack of jurisdiction and sovereign immunity. The Employment Court granted the motion to dismiss based on lack of subject matter jurisdiction, and appellants then filed this appeal.
6 NICS App. 212, MADISON v. TULALIP (November 2004) p. 213
Tribal Sovereign Immunity Bars This Action
The Tulalip Tribes, like all Indian tribes, are protected from suit by sovereign immunity. Ord. 49, § 1.2.2; see Rave v. Reynolds, 23 Ind. L. Rep. 6150, 6161 (Winn. S.Ct. 1996); Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754 (1998); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). Sovereign immunity extends to entities that are arms of the tribes. Ord. 49, § 1.2.2; see Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 29 (1st Cir. 2000); Hagen v. Sisseton‑Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000). The immunity protects tribal officials acting "in the performance of their duties." Ord. 49, § 1.2.2; see Terry‑Carpenter v. Las Vegas Paiute Tribal Council, 30 Ind. L. Rep. 6150, 6154‑56 (Las Vegas Paiute Ct. of App. 2003)(explaining qualified immunity of tribal officials); Fletcher v. United States, 116 F.3d 1315, 1324 (10th Cir. 1997) (tribal immunity extends to officials acting within the scope of their authority); Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479 (9th Cir. 1985); Romanella v. Hayward, 933 F. Supp. 163, 167 (D. Conn. 1996). The Tulalip Tribes Board of Directors is the governing body of the Tribes and is protected by sovereign immunity. Thus, appellants' action will be barred unless the Tribes have waived their immunity from suit, or if their actions are not within their duties.
Indian tribes may waive their immunity from suit, but such a waiver cannot be implied. Ord. 49, § 1.2.2 (immunity must be "expressly, specifically, and unequivocally waived"); see Bear Don't Walk v. Confederated Salish and Kootenai Tribal Council, 31 Ind. L. Rep. 6061 (CS&KT App. 2004); (C&L Enterprises v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 418 (2001); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58‑59 (1978). In this case, the Ordinance that allegedly waives tribal immunity has a provision explicitly disclaiming any general waiver of tribal immunity, with a qualified waiver for limited purposes of appeals under the Ordinance. Ordinance 84 § I.E. ("The provisions of this Ordinance shall not waive the sovereign immunity of the Tribes. This provision shall not apply where this Ordinance clearly and expressly grants a specific remedy against the Tribes."). Thus, any action against the Tribes may proceed only where Ordinance 84 "grants a specific remedy against the Tribes."
Chapter X of Ordinance 84 governs discipline, grievances and appeal procedures. It sets out the types of discipline that may be meted out for various degrees of misconduct. For example, a warning is not valid unless the "warning notice" is signed by the employee's immediate supervisor, while a "dismissal notice" must bear the signature of the supervisor and approval of the department manager. Ordinance 84. X.A.4 and 6. An employee "may appeal warning notices, suspensions and dismissals" to the Employment Court. Ordinance 84. X.B.4. The employment court is authorized to order "reinstatement and/or backpay" but if "the supervisor or administrator is found to have followed" Ordinance 84, their decision must be upheld. Ordinance 84. X.B.4. Since this section clearly contemplates a specific remedy against the Tribes, it waives tribal sovereign immunity with respect to dismissals within the ambit of the Ordinance. See C&L Enterprises v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411, 419 (2001)(agreement to arbitration clause that "may be reduced to judgment in accordance with
6 NICS App. 212, MADISON v. TULALIP (November 2004) p. 214
applicable proceedings in any court having jurisdiction thereof'” constitutes clear waiver of tribal sovereign immunity).
The Board's action here, however, was not within the framework of Ordinance 84. While Ordinance 84 explicitly refers to appeals of decisions by supervisors or administrators, the Board of Directors is neither. It is the elected governing body of the Tulalip Tribes, see Constitution and Bylaws for the Tulalip Tribes of Washington, arts. III‑VI. The Board is not a "supervisor or administrator" within the meaning of Ordinance 84. The Ordinance sets out a "Chain of Command" with staff at the bottom of the chain, followed by an immediate supervisor, a supervisor/manager and up through two more levels to a Chief Executive Officer (CEO). Ordinance 84 I.C. The Board of Directors is not part of this delineated chain of command. The Board retains certain broad powers over the Tribes' employment structure pursuant to the powers delineated in Article VI, §§ 1 G & R of the Tribes' Constitution and Bylaws. Actions by the Board are not subject to the appeals process applicable to supervisors or administrators. Ordinance 84. X.B.4.1 In other words, no "specific remedy" is authorized to run against the Board’s actions and thus there is no waiver of sovereign immunity. Ordinance 84 § I.E. The Board's action abolishing positions that were created by a prior employee are not warnings, suspensions, or dismissals within the purview of Ordinance 84's limited waiver of sovereign immunity.2
CONCLUSION
Lawsuits seeking relief against the Board, even when couched as an administrative appeal, are barred by tribal sovereign immunity unless that immunity has been waived. There is no clear waiver. The decision of the Employment Court dismissing this action is affirmed and the case is remanded to the trial court for action consistent with this Opinion.
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.
Since the Board acted in the performance of its duties as provided by the Tribal Constitution, it necessarily follows that tribal officers carrying out the directive of the Board were acting in the performance of their duties.
When the Board has chosen to authorize judicial review of its actions it has done so expressly. See Gobin v. Tulalip Tribes' Board of Directors, at 9, Nos. TUL‑CI 6/00-200 and 219 (2002)