--- Am. Tribal Law ----, 2017 WL 6570678 (Colville C.A.), 13 CCAR 66
Colville Tribal Court of Appeals.
Patrick GABRIEL, Appellant,
Claude COX, et. al, Appellees.
Case No. AP17-001
7 CTCR 18
Decided November 20, 2017.
Trial Court Case No. CV-OC-2006-26452
Attorneys and Law Firms
[David Stevens, Attorney at Law, represented Appellant Gabriel.
David Shaw, Attorney at Law, represented Appellee CTFC/CTEC.
Alice Koskela, Office of Reservation Attorney, represented Appellee Colville Tribes.
Before Justices David C. Bonga, Gary F. Bass, and Michael Taylor.
STANDARD OF REVIEW
We review findings of facts under the clearly erroneous standard, and errors of law de novo. Colville Confederated Tribes v. Naff, 2 CCAR 50, 2 CTCR 08, 22 Ind.Lw.Rptr. 6032 (1995).
This case had its beginnings as an employment issue in 2005 when the Colville Confederated Tribes (Tribes) was in a process to limit its operating costs by consolidating positions. As a result Appellant’s position within the Colville Tribal Enterprise Corporation (CTEC) Risk Management Office was combined with the Tribes Risk Management Office. Shortly thereafter Appellant’s position was identified to be eliminated in a reduction in force (RIF) process. Appellant untimely challenged the RIF as CTEC management determined the RIF had not yet occurred. A month later on 12/02/05 Appellant did receive a RIF notice and Appellant’s last day of work was 12/16/05. Appellant filed a complaint alleging the RIF action violated the Tribes’ Law and Order Code, Chapter 10, Tribal Employment Rights Office (TERO) provisions. The TERO Director did not find a violation of Chapter 10 which lead Appellant to initiate an “administrative claim” regarding TERO violations that was dismissed by the Administrative Law Judge on 6/26/06. On 12/29/06 Plaintiff/Appellant filed a Civil Complaint and throughout 2007 numerous motions were filed by the parties that resulted in a 7/17/08 Order to Remand the issue to TERO by the trial court. On 7/31/08 Defendant/Appellee appealed the Order to Remand. The Court of Appeals, on a stipulated motion of the parties Ordered on 9/09/09 to remand the case to the Trial Court. Numerous motions, complaints were filed throughout 2010 by the parties. Motions to Dismiss were filed on 4/29/11 by Appellee CTEC and on 5/02/11 by Appellee Tribes. The Motion to Dismiss was granted by the Trial Judge on 7/26/16. A Motion for Reconsideration was filed by Appellant on 09/22/16 that was denied by the Trial Judge on 01/09/17 and the Appellant timely filed this appeal.
WAS THE DEFENSE OF TRIBAL SOVEREIGN IMMUNITY OVERCOME?
It is well established that Indian Tribes enjoy sovereign immunity from suits absent a clear waiver either by the tribe itself or by Congress. Colville Tribal Enterprises v. Orr, 5 CCAR 01 (CCT 12/04/1998); Oklahoma Tax Commission v. Potawatomi Tribe of Oklahoma, 498 U.S. 505 (1991); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 (1978). The doctrine of sovereign immunity requires the waiver to be explicit and unequivocally expressed, it must be in writing, it must be authorized or provided by a party with the authority to waive immunity, and any waiver must be strictly construed in favor of the tribal sovereign party. Orr, supra. Tribal immunity from suit is fundamental to tribal sovereignty. It is an essential principle of Indian law, recognized and adhered to by the Colville Courts. Stone v. Somday, 1 CCAR 09 (CCT 03/06/1984).
Appellant argued that Tribes/Appellee had explicitly waived sovereign immunity for the claims asserted by Appellant. However the Appellant has not provided any indication or evidence that the Tribes clearly waived its sovereign immunity from suit.
WAS THERE A VIOLATION OF PLAINTIFF/APPELLANT’S DUE PROCESS RIGHTS WHEN A TRIBAL ADMINISTRATIVE AGENCY (TERO) DENIED PLAINTIFF/APPELLANT’S CLAIM WITHOUT INFORMING PLAINTIFF/APPELLANT OF A RIGHT TO APPEAL THE TERO COMMISSION DECISION, AND HOW TO PRESENT THE APPEAL?
The Appellant argues that the Tribes’ actions and inactions can amount to a waiver of its sovereign immunity. Allegedly the actions of TERO by providing misinformation to the Appellant and directing the Appellant regarding procedural requirements to appeal a TERO was somehow a due process violation that waived the Tribes’ sovereign immunity and opened the door for the Appellant to continue his action against the Tribes. However all of the laws relating to the standards and process for both filing and appeal to the TERO Commission (currently found at Tribal Code 10-1-31) and for the separate process of reopening a TERO Agency investigation (currently found at 10-1-33) were publicly available at all relevant times. To the extent these TERO laws were ignored or misunderstood, is no exception to the law on tribal sovereign immunity waivers.
Furthermore, requiring the Tribal Government to provide notice above and beyond the statute would be an exercise in redundancy as the Tribes would have to state the law twice - once in the publicly available Tribal Code then once again in the body of the administrative decision at issue. The law should not be interpreted to such an unreasonable end.
IS THE WAIVER OF SOVEREIGN IMMUNITY IN THIS CASE LIMITED TO THE WAIVER UNDER CTC 10-1 EMPLOYMENT RIGHTS AND NOT UNDER CTC 1-5 COLVILLE TRIBAL CIVIL RIGHTS ACT?
There is no waiver of sovereign immunity in this case. The Colville Business Council has clearly preserved its sovereign immunity in order to protect the limited communal resources of the Tribes. Colville Tribal Code 1-1-6 provides:
Except as required by a federal law, or the Constitution of the Colville Confederated Tribes, or as specifically waived by a resolution or ordinance of the Council specifically referring to such, the Colville Confederated Tribes shall be immune from suit for any liability arising from the performance of their official duties.
It is the Appellant who bears the burden of establishing the propriety of the Court’s jurisdiction. Kokkonen v. Gardian Life Ins. Co. Of Am., 511 U.S. 375, 377 (1994); Stock West v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989); Levin v. U.S., 663 F.3d 1059, 1963 (9th Cir. 2011) (Where principles of sovereign immunity are at play, the Appellant “bears the burden of pointing to such an unequivocal waiver of immunity”). In this case, the Appellant has not provided any indication or evidence that the Tribes waived its sovereign immunity from suit. The attorney for the Appellant during the opening statement at the Oral Argument hearing stated that the information provided by the Tribes’ TERO office was incorrect and that misstatement of the appropriate TERO procedures would be used to prove the Tribes had implicitly (emphasis added) waived sovereign immunity.
As stated above a waiver of the Tribes’ sovereign immunity cannot be implicitly waived, but instead the waiver must be explicit and unequivocal that was not the case in this action.
It is hereby DECIDED that the decision of the Trial Court is AFFIRMED.
--- Am. Tribal Law ----, 2017 WL 6570678, 13 CCAR 66