TRIBAL COURT DECISIONS REGARDING
SOVEREIGN IMMUNITY IN TORT AND EMPLOYMENT CASES
Kyme Allison McGaw
Morisset, Schlosser, Homer, Jozwiak & McGaw
December 1997
Tribal courts are seeing an increase in tort and employment claims. The issue of waiver of sovereign immunity often arises in the employment and tort context. Particularly in employment cases, plaintiffs tend to assert that Congress, through ICRA, has waived tribal sovereign immunity. Tribal courts have decided claims of implied waivers in a variety of ways.
Plaintiffs' lawyers unfamiliar with tribal court litigation and a tribe's system of laws frequently cite state court precedent to the tribal court and ignore tribal court jurisprudence, much of which is collected in the Indian Law Reporter. If plaintiff does cite a tribal court decision, it is, of course, in favor of a waiver of immunity. Counsel representing tribes or tribal defendants can locate an equal number of tribal court decisions that uphold tribal sovereign immunity.
Below is a redacted excerpt of a reply brief we filed in 1997 in tribal court in support of a tribal government's motion to dismiss a wrongful termination suit. This brief reviews and cites numerous tribal court opinions upholding tribal sovereign immunity. This brief is not intended to be a statement of the current law nor an exhaustive collection of all tribal court decisions on sovereign immunity.
If I were to write this brief today, I would also review the existence of sovereign immunity of states and the federal government. Sovereign immunity is not unique to Indian tribes; practitioners unfamiliar with Indian law simply take other sovereigns' statutory waivers (such as the FTCA) for granted.
EXCERPT OF REPLY BRIEF RE: DEFENDANTS' MOTION TO DISMISS ON GROUNDS OF SOVEREIGN IMMUNITY
1. CIVIL RULES 12 AND 56 DO NOT PRECLUDE JUDGEMENT ON THE PLEADINGS.
Plaintiffs assert that "Most legal systems have a preference to have cases heard on their merits." Opp. Mem. at 2. However, there is ample authority that in cases involving issues of Indian law, and particularly sovereign immunity, judgment on the pleadings or summary judgment(1) is appropriate.
Furthermore, plaintiffs bear the burden to establish each element of their claim, including the elements of subject matter jurisdiction. If a plaintiff is suing a sovereign Indian tribe, the plaintiff must "as a jurisdictional predicate, establish that the nation's immunity from suit has been waived." Raymond v. Navajo Agricultural Products Industry, 22 Indian L. Rep. 6100, 6101 (Nav. Sup. Ct. July 20, 1995). This is so even where the sovereign tribe has expressly waived its sovereign immunity by ordinance with respect to civil rights claims, as did the Navajo Nation. Id. Plaintiffs fail to carry that burden here because they have not cited any waiver of the Tribe's sovereign immunity. Despite this well-established principle of law, plaintiffs make the extraordinary statement that "[A]n allegation of waiver of sovereign immunity is not necessary for this Court to find that it has subject matter jurisdiction to hear this case." Opp. Mem. at 7. Plaintiffs are wrong, and they cannot demonstrate the jurisdictional prerequisite of waiver of the NoName Tribe's sovereign immunity. Plaintiffs' complaints must be dismissed.
2. THE MAJORITY OF TRIBAL COURTS HOLD THAT ICRA DOES NOT WAIVE A TRIBE'S SOVEREIGN IMMUNITY.
Congress did not make a blanket waiver of the tribes' sovereign immunity in the Indian Civil Rights Act. Congress recognized that one of the primary attributes of sovereignty is the sovereign's immunity from lawsuits for damages filed against it without its consent. A tribal court weighing the sovereign immunity question articulated the rationale for application of the doctrine to Indian tribes:
[C]ritically important community interests are being protected by this immunity: Suits against the tribe seeking damages attack the community treasury. This money belongs to all the people of the Sauk-Suiattle nation. It must be guarded against the attacks of individuals so that it can be used for the good of all in the tribal community. Secondly, any suit against the tribe forces the tribe to expend community monies in legal fees. The possible amounts that can be expended on this effort would be great if suits of this nature are not limited. Finally, the entire community stands to suffer irreparable harm if their leaders, foreseeing possible liabilities at every action, are unable to fulfill the responsibility of their offices.
Moses v. Joseph, 2 Tribal Ct. Rep. A-51, A-54 (Sauk-Suiattle Tribal Ct. 1980).
In an employment case brought under the ICRA, another tribal court describes the devastating effects of continued erosion of tribal sovereignty. The court urges tribes and tribal courts to resist further challenges to tribal sovereignty:
Sovereignty refers to the inherent right and power to govern. It cannot be argued that a sovereign, using a political and economic definition can be a sovereign if it has anything less than total sovereignty. A political entity cannot exist if it has not the power to protect nor preserve its very existence. It appears then that much more than Wynde versus the college is at issue. The necessary political and economic viability of a tribe must retaliate against the subtle erosion of Native American institutions.
Tribal sovereignty is the tribe. Its very existence as a political entity rests upon the foundation of sovereignty. No less certainly, than the Anglo system. . . .
If this court is to preserve the tribe as a political, social, economic entity, a recognition of that corollary must begin with a careful studied analysis of the impact of the erosion of tribal sovereignty however minuscule. Erosion of tribal sovereignty by implication is no less than actual erosion of the tribe itself. What is the essence of a tribe? Tribal sovereignty!
Sisseton-Wahpeton Sioux Tribe's Board of Trustees of the Sisseton-Wahpeton Community College v. Wynde, 18 Indian L. Rep. 6033, 6035 (N. Plains Intertribal Ct. App. 1990). Significantly, in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), the Supreme Court checked the ICRA's potential erosive effect on tribal sovereignty by holding that the ICRA did not confer jurisdiction in federal courts except in habeas corpus actions. Id. at 59. Martinez also stands for the proposition that each tribe, through its tribal courts, may interpret what the provisions of ICRA mean in accordance with the tribe's customs and traditions.
Plaintiffs, as well as the Hoh and Foster courts cited by plaintiffs, cite Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), cert. denied, 449 U.S. 1118 (1981), a case which the Ninth Circuit has flatly refused to follow. E.g,. R. J. Williams Co. v. Fort Belknap Hous. Auth., 719 F.2d 979 (9th Cir. 1983), cert. denied, 472 U.S. 1016 (1985); Snow v. Quinault Indian Nation, 709 F.2d 1319 (9th Cir. 1983), cert. denied, 467 U.S. 1241 (1984); see also ShortBull v. Looking Elk, 677 F.2d 645 (8th Cir. 1982), cert. denied, 459 U.S. 907 (1982). In an employment case, a federal district court, relying on Santa Clara Pueblo, held that tribal sovereign immunity barred its jurisdiction over an ICRA claim brought by a non-Indian tribal employee. Sulcer v. Citizen Band Potawatomi Indian Tribe, 19 Indian L. Rep. 3071 (W.D. Okla. 1992). The court cited Williams v. Pyramid Lake Paiute Tribe, 625 F. Supp. 1457, 1458 (D. Nev. 1986), which states, "Dry Creek Lodge is not the law of this circuit, nor is it the law of the United States." Sulcer, id. at 3071. In addition to being criticized by the courts, Dry Creek Lodge has been soundly criticized by commentators, e.g., Frank Pommersheim & Terry Pechota, Tribal Immunity, Tribal Courts, and the Federal System: Emerging Contours and Frontiers, 31 S.D. L. Rev. 553, 566-67 (1986); Kevin Gover & Robert Laurence, Avoiding Santa Clara Pueblo v. Martinez: The Litigation in Federal Court of Civil Actions Under the Indian Civil Rights Act, 8 Hamline L. Rev. 497, 499-503 (1985); Michael Taylor, Modern Practice in the Indian Courts, 10 U. Puget Sound L. Rev. 231, 265 (1987). Aside from being bad law, Dry Creek Lodge is inapposite here because it concerns the jurisdiction of a federal court over an ICRA claim, rather than tribal court jurisdiction.
Based on Santa Clara Pueblo's clearly stated holding that the ICRA contains no express or implied waiver of immunity, the weight of tribal court authority concludes that in ICRA Congress did not waive the sovereign immunity of tribes. E.g., Gonzales v. Allen, 17 Indian L. Rep. 6121, 6122 (Shoshone-Bannock Tribal Ct. 1990) ("[t]he vast majority of both federal and tribal court cases have held that the Indian Civil Rights Act is not a waiver of tribal sovereign immunity"); Pawnee Tribe of Oklahoma v. Franseen, 19 Indian L. Rep. 6006, 6008 (Ct. Ind. App.-Pawnee 1991) (in a contract action, the court stated "[ICRA] did not explicitly waive a tribe's immunity in tribal court actions. Furthermore, we will not imply such a waiver where none is specifically made in the federal statutes."); see also Board of Trustees of the Sisseton-Wahpeton Community College v. Wynde, 18 Indian L. Rep. 6033, 6036 (N. Plains Intertribal Ct. App. 1990) (Gillette, J., concurring); Garman v. Fort Belknap Community Council, 11 Indian L. Rep. 6017 (Ft. Belknap Tribal Ct. 1984) ("tribal self-government must surely embody the concept that Indian tribes decide for themselves how to implement laws forced upon them by Congress"); Satiacum v. Sterud, 10 Indian L. Rep. 6014, 6015 ("plaintiff argues that the Martinez decision represents an explicit waiver of the tribe's immunity where a violation is alleged under the [ICRA]. This court rejects that argument and holds that a waiver of the tribe's immunity must be unequivocally expressed."). Santa Clara Pueblo's holding on which these decisions are based was reached "independently of, and prior to" the Court's statement that tribal courts are available to hear ICRA claims. E.g., Pommersheim & Pechota, at 565.
The tribal courts' refusal to imply waivers of sovereign immunity extends to employment cases. Where, as here, a tribal statute or constitution has not expressly waived the tribe's sovereign immunity from an employment lawsuit, most tribal courts have held that the ICRA does not waive the tribe's sovereign immunity:
* Stone v. Somday, 10 Indian L. Rep. 6039 (Colville Tribal Ct. 1983). In this employment suit against a tribal official, the court held that the ICRA, as interpreted by Santa Clara Pueblo, "does not affect the plain language of the tribe's sovereign immunity as a matter of tribal law." Id. at 6041.
* Smith v. Confederated Tribes of the Warm Springs Reservation, 17 Indian L. Rep. 6055 (Warm Springs Tribal Ct. 1990) (employment)
* Garman v. Fort Belknap Community Council, 11 Indian L. Rep. 6017 (Ft. Belknap Tribal Ct. 1984) (employment)
* Nez v. Bradley, 3 Navajo Reptr. 126 (Ct. App. 1982) (employment)
* Pinnecoose v. Board Comm'rs, 19 Indian L. Rep. 6072 (S.W. Intertribal Ct. App. 1992) (employment)
* Gonzales v. Allen, 17 Indian L. Rep. 6121 (Shoshone-Bannock Tribal Ct. 1990) (employment)
* Grant v. Grievance Comm. of the Sac and Fox Tribe of Indians of Okla., 2 Tribal Ct. Rep. A-39 (1981) (employment)
* Board of Trustees of the Sisseton-Wahpeton Community College v. Wynde, 18 Indian L. Rep. 6033 (N. Plains Intertribal Ct. App., 1990)
* Defender v. Bear King, 17 Indian L. Rep. 6078, 6079 (Standing Rock Sioux Tribal Ct. 1989).
The reasoning of these courts is illustrated by that of a tribal court in rejecting a plaintiff's wrongful termination claim for back pay:
[t]he vast majority of both federal and tribal court cases have held that . . . tribes may waive sovereign immunity in tribal courts without congressional approval, but have not held that Congress waived the immunity on behalf of the tribes [in the ICRA]. . . . Clearly the tribal council could waive sovereign immunity in this case, but they haven't.
Gonzales v. Allen, 17 Indian L. Rep. 6121, 6122 (Shoshone-Bannock Tribal Ct. 1990) (original emphasis omitted).
Tribal court decisions finding a waiver in ICRA disingenuously treat this language as dispositive, ignoring the holding. Language in Santa Clara Pueblo states that the ICRA is an exercise of congressional "plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess," Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978), and that "[t]ribal forums are available to vindicate rights created by the ICRA, and ' 1302 has the substantial and intended effect of changing the law which these forums are obliged to apply." Id. at 65. The Court made clear that in spite of ICRA, Congress did not waive the sovereign immunity of Santa Clara Pueblo.
The cases cited and attached by plaintiffs are exemplary of these types of cases. In Hudson v. Hoh Indian Tribe, 21 Indian L. Rep. 6045 (Hoh Ct. App., May 28, 1992), attached to plaintiffs' opposition as Exhibit B, although the court held that the tribe's personnel grievance procedure did not contain the required clear waiver, id., the court found the waiver in a provision of the Hoh Indian Tribe's constitution that grants Hoh tribal members the right to petition for redress of grievances. Id. The Hudson case contains a dangerous equivocation. The Hudson court states that the Indian Civil Rights Act is another "limitation" on (as opposed to a waiver of) the sovereign immunity of Indian tribes, just as is the right to petition for grievances, which was contained in the Hoh Tribe's constitution. Hudson, 21 Indian L. Rep. at 6046. The Hudson court incorrectly asserts that Congress implicitly waived the sovereign immunity of all Indian tribes in the Indian Civil Rights Act.
Similarly, in a garbled opinion in Foster v. Squaxin Island Tribe, No. SQI-CI94-12-191 (1997), attached to plaintiffs' opposition as Exhibit C, the court "remanded back to the tribal court to determine a hearing on the merits adopting the dissent in Santa Clara Pueblo." A second judge filed a concurring opinion, and a third judge filed a dissent, which highlights "the unsupported conclusions, and its result which would summarily extinguish historic and prehistoric tribal powers." The reasoning in these decisions is not worthy of adoption here.
3. THE TRIBE DID NOT WAIVE ITS SOVEREIGN IMMUNITY IN ITS SOVEREIGN IMMUNITY ORDINANCE.
Without citation, plaintiffs assert that the doctrine of tribal sovereign immunity has been "assailed in a number of courts throughout the country." Opp. Mem. at 3. However, a review of tribal law and tribal court decisions reveals the contrary: Tribes are strictly conscious of monitoring their tribal sovereign immunity, and tribal courts, with some exceptions, carefully guard that sovereign immunity against implicit waiver.
Neither the Constitution of the Tribe nor the Law and Order Code waive the Tribe's sovereign immunity. Tribal courts generally hold that sovereign immunity exists by virtue of their tribes' sovereign status. See, e.g., Satiacum v. Sterud, 10 Indian L. Rep. 6013, 6015 (Puyallup Tribal Ct. 1982); MacDonald v. Navajo Nation, 18 Indian L. Rep.6003, 6006 (1990) ("The Sovereign Immunity Act is nothing more than a reinforcement of the common law immunity from suit of the Navajo Nation as an independent sovereign.").
Without citation to any authority, plaintiffs assert that the Tribe's sovereign immunity ordinance is a blanket waiver of the Tribe's sovereign immunity. Opp. at 7. (Plaintiffs' argument proves too much: If plaintiffs' interpretation of the effect of the Tribe's sovereign immunity ordinance were correct, the ordinance would be a general waiver of the Tribe's sovereign immunity to every person and entity (including the states) that complies with the service requirements established by the ordinance.) Plaintiffs attempt to mask the fact that they do not address the Tribal Council's intent in enacting the ordinance by posing a rhetorical question. Why have a notice requirement if the tribe does not waive its immunity? Plaintiffs then answer their own question: the purpose for prefiling notices is to allow the government the opportunity to review the complaint and resolve it before a lawsuit is filed as well as to ensure that the proper government employees receive notice of the suit. It is false fallacious logic to jump from a government's desire to have prompt notice of claims and the opportunity to resolve them early and informally to a clear, express waiver of the government's immunity.
a. Plaintiffs Falsely Equate This Court's Power of Review with Subject Matter Jurisdiction.
A court must distinguish between laws that expand rights--such as ICRA--and those that expand jurisdiction. Defendants do not deny that this Court has the power to review constitutional issues. The point is whether the Tribe's sovereign immunity has been waived so that this Court can exercise that power. As one tribal court explained, ICRA does not give "any new jurisdiction to the tribal court, because tribal court jurisdiction comes from the sovereignty of the tribe or nation which establishes the court." Nez v. Bradley, 3 Nav. R.126, 130-31 (1982). Furthermore, since immunity from suit is an inherent attribute of the nation's sovereignty, a federal law must expressly waive the nation's immunity from suit to be "applicable federal law." E.g., TBI Contractors v. Navajo Nation, 16 Indian L. Rep. 6037 (1987).
b. Plaintiffs' Due Process and Equal Protection Claims, the Elements of Which Have Not Been Established, Cannot Subvert the Tribe's Sovereign Immunity.
Plaintiffs' general tactic is to assert that violation of their due process and equal protection rights waives the Tribe's sovereign immunity to suit. Plaintiffs then assert that there"must" be a remedy for these alleged violations or "constitutional rights on this reservation will disappear," id. at 11, and that will be a "tragedy." Id.
Plaintiffs also assert that "the constitutional rights granted to tribal members" by the Tribe's Constitution will "cease to exist" if the Tribe's sovereign immunity is upheld here. See Opp. Mem. at 5. Aside from the fact that this statement is irrelevant here since neither plaintiff is a tribal member, this statement is inaccurate and has been dealt with by the courts as well.
The tribal courts, while sensitive to the dilemma of employees who allege violations of employment policies or civil rights by the tribe or its agencies and who are confronted by the defense of sovereign immunity, recognize that waiver of a tribe's sovereign immunity is fundamentally a relinquishment of tribal sovereignty and should be made clearly, expressly and unequivocally by the elected representatives of the tribal members. In upholding tribal sovereign immunity, tribal courts recognize that they will be denying claimants a judicial remedy. For example, in Guardipee v. Confederated Tribes of the Grand Ronde Community of Oregon, 19 Indian L. Rep. 6111 (Grand Ronde Tribal Ct. 1992), the court held that a personnel policy that granted employees the right to appeal their discharges to the tribal court did not waive the tribe's immunity from suit for back wages even when the employee was found to have been denied due process and had been reinstated. The court stated that, even though "[a]ppellant will undoubtedly assert that the effect of this decision is to deprive him of an effective remedy to address his improper discharge," it was "not persuaded that the lack of certain enforcement remedies against the tribe, such as an award of money damages, can override the tribe's sovereign immunity from suit." Id. at 6112.
The plaintiff in a wrongful termination suit under the ICRA was likewise denied a remedy in Pinnecoose v. Board of Commissioners of the Southern Ute Public Housing Authority, 19 Indian L. Rep. 6072 (S.W. Intertribal Ct. App. 1992), in which a tribal housing authority was held to be immune from a wrongful termination suit. The plaintiff alleged violation of due process and equal protection rights in the agency's failure to follow its written grievance procedure when terminating her employment. Even though the tribal ordinance establishing the agency contained a "sue and be sued" clause, the court held that the grievance procedure did not constitute a contract between the plaintiff and the agency that waived the agency's immunity from suit. Id. The court concluded its opinion with the following observation:
It is totally unfortunate that litigants such as the appellant are met with what seems to be an insurmountable obstacle as that of 'tribal sovereign immunity.' However, the doctrine of tribal sovereign immunity has long been recognized and upheld by tribal, state and the federal court systems. If, however, there is a feeling by any party involved that any inequities exist as a result of this ruling, then the best place to resolve the issue is with the legislative body of the tribe.
Id.
As these tribal courts recognize, if tribal members wish to relinquish tribal sovereignty to provide their tribal court with the power to remedy violations of civil rights, they can do so through the tribal legislative process. Lovermi v. Miccosukee Tribe of Indians of Florida, 23 Indian L. Rep. 6090, 6091 (Micc. Tr. Ct., Apr. 17, 1996) ("until the tribe through its legislative branch, the Miccosukee General Council, decides to do so and expressly waive its sovereign immunity in employment cases and consent to be sued in tribal court, this court may not judicially waive the tribe's sovereign immunity.").
The same confusion permeates plaintiffs' argument concerning the asserted limitation of ICRA on the Tribal Council's power to legislate. See Opp. Mem. at 8. Defendants do not deny that ICRA prohibits the exercise of tribal power in derogation of the rights enumerated in ICRA and that the Tribe's constitution imposes similar limits. As explained by the courts above, these limits do not create subject matter jurisdiction in the court nor do they waive the Tribe's sovereign immunity to suit.
1. Where a motion made under Fed. R. Civ. P. 12 introduces factual material "outside the pleadings," i.e., the complaint and answer, the motion is converted to a motion for summary judgment under Fed. R. Civ. P. 56. Fed. R. Civ. P. 12(c).