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IN THE SAUK-SUIATTLE TRIBAL COURT OF APPEALS
SAUK-SUIATTLE INDIAN RESERVATION
DARRINGTON, WASHINGTON
Nino Maltos, Respondent/Plaintiff,
v.
Sauk-Suiattle Tribe, Sauk-Suiattle Tribal Council, Norma A Joseph, Nancy DeCouteau, Karen Misanes, Lawrence Joseph, Jason Joseph, and Katherine Joseph, Appellant/Defendant.
No. SAU-CIV-5-3/01/001 (November 24, 2003)
(Reconsideration denied, February 27, 2004)

Before:  Lorintha Umtuch, Chief Justice; Katherine M. Eldemar, Justice; Richard A. Woodrow, Justice.
Appearances:  Jill Conrad, counsel for Sauk Suiattle Tribe for Appellant. Nino Maltos, pro se, Respondent.

OPINION
Woodrow, J.:

PROCEDURAL HISTORY

This action commenced with a suit by Nino Maltos against the Sauk-Suiattle Tribe and Tribal Council. The suit alleged numerous violations of Tribe’s codes and federal statute. Respondent claimed personal injury as well. Respondent asked for relief in the form of an injunction against the Tribal Council, an order voiding all acts of the Tribal Council to date, reinstatement of the Respondent in the Tribe, damages, legal costs, and all attorney fees and other just and equitable relief.
The Tribe asserted sovereign immunity. On February 11, 2002 the Honorable Chief Judge Martin Bohl of the Sauk-Suiattle Tribal Court issued an order granting the Plaintiff’s** motion to dismiss on sovereign immunity grounds and directing notice of rehearing for Respondent.
The Appellant Tribe appeals the trial court’s order. The appellant appeals (1) the trial court’s conclusion that it has jurisdiction to order a rehearing upon a finding of denial of due process, and (2) the trial court’s order for a rehearing.

JURISDICTION

This Court having reviewed the record1  and listened to the arguments of counsel, agrees that the trial court does have jurisdiction to order a rehearing. We reached this opinion by deciding that sovereign immunity2  does not apply. The rehearing is an administrative remedy and as such does not constitute a suit against the Tribe.

REHEARING

The trial court did not conduct a trial on any issue of fact. The trial court held, however, that the Respondent was denied due process which pierced the sovereign immunity of the tribe for the limited purposes of allowing a rehearing.3  There is no factual record before this Court that would allow it to determine if this conclusion of law is supported by substantial evidence. On remand the trial court is to conduct a finding of fact and determine after the Respondent loss his membership in the Sauk-Suiattle Tribe if he was afforded or given notice of his right to appeal. The trial court shall also determine if the Respondent was given notice of his right to appeal and if he waived this right by not filing an appeal or pursuing his administrative remedies. The trial court shall also determine if Respondent was given notice of his right to appeal and if he understood that he could appeal his loss of membership in the tribe because of the ambiguous nature of the Enrollment Ordinance.4

ENROLLMENT ORDINANCE OF THE SAUK-SUIATTLE INDIAN TRIBE

The enrollment ordinance is ambiguous. It is unclear if a member may appeal a dis-enrollment or a relinquishment of membership in the tribe. This courts holds that a member may appeal a loss of membership in which privileges of membership are revoked by the Tribal council or the Enrollment Committee. There is no distinction that this court can find between a loss of membership and a denial of membership. This conclusion is based upon the following facts: (1) the tribal membership is a valuable property right and all member must be afforded due process when that right is taken by the tribe; (2) tribal members should have the same appeal rights as other Indians seeking to become tribal members; (3) the Enrollment Ordinance is ambiguous regarding appeals rights and this ambiguity should be resolved in favor of the tribal members; 4) there does not appear to be any appeal process or right to re-apply for membership if a member is dis-enrolled or relinquishes membership brought by the motion of the Tribal Council or the Enrollment Committee. There should always be a remedy for mistake or error.

CONCLUSION

The court concludes that tribal sovereignty was never at issue in this case. The trial court must hold a hearing to determine if the Respondent was given notice of his right to appeal, and if the Respondent understood that he had the right to appeal a dis-enrollment or relinquishment or if the Respondent was given his notice to appeal and waive that right by inaction and a failure to exhaust his administrative remedies.
ORDER
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT Appellant’s appeal is granted in part and denied in part and this matter is remanded to the trial court for a hearing consistent with this opinion.
Dissenting Opinion
Eldemar, J.:
This matter comes before us on appeal from the tribal court’s ruling on a motion to dismiss. The tribal court was bound, in considering the motion, to accept all factual allegations of the non-moving party as true. A factual inquiry is not necessary. In light of the presumed facts, the court was bound to consider the questions of law posed by the tribe in its motion to dismiss. On appeal, we accept the appellant’s***  alleged facts as true and we review the conclusions of law de novo.
Appellant sued the tribe and the individual members of the Tribal Council for money damages, attorney fees, injunctive relief, and reversal/nullification of Council action. Appellant intimates that the Council was acting in a quasi-judicial capacity when it acted on his application for dis-enrollment. Conversely, Appellant intimates abusive conduct sufficient to warrant prospective injunctive relief akin to a claim pursued under Ex Parte Young, 209 U.S. 123 (1908).
Unfortunately, Appellant fails to state a clear claim and he fails to appropriately brief the law in a manner that will provide adequate direction to the trial court. Appellant is master of his own case.
The trial court, improperly briefed, committed reversible error when it fashioned its relief. First, the trial court granted the tribe’s motion to dismiss, thereby removing the foundation for further action by the court. Second, the court directed further action by ordering the matter remanded to the Tribal Council. This is non sequitur and not possible. The case at bar is the shelf upon which a judge places directive before the parties. A directive thus placed is enforceable upon the parties before the bar. When the court dismisses a case, it removes the shelf. Consequently, the court no longer has a place to set binding directives. The case can either be dismissed or remanded. It cannot be both dismissed in whole and remanded.

A. Remedy of Remand
When the tribal court sits in review of Council decisions fashioned in furtherance of its obligations as a quasi-judiciary, it may remand a matter to the Council with direction to apply facts found at trial and follow conclusions of law articulated by the bench. Compelled action of this nature is articulated in the oft-referenced Accardi doctrine. The doctrine requires an agency to comply with its own self-imposed rules but it only applies when the agency creating those rules intends itself to be bound by the rule it has created. United State ex Rel. Accardi v. Shaugnessy, 347 U.S. 260 (1954).
In the case at bar, Appellant requested that the Council remove him from the tribal rolls. The Council granted his request. Appellant did not appeal the Council’s action. There is no appeal procedure defined under the Enrollment Ordinance whereby the appellant might seek review of this action. Appellant is free to apply for enrollment. The Council will sit in its quasi-judicial capacity and review the application. If the Council denies his enrollment application, he is free to seek review of the Council’s denial in Tribal Court.
On appeal, the trial court will apply the Accardi doctrine and direct action to the Council only because the Council, sitting in it capacity as the legislature, defined the quasi-judicial role for itself and the appeal process for the court. Any other review of Council action is barred by sovereign immunity and must therefore stem from an express waiver of sovereign immunity or from a Young action. Here, the trial court correctly ruled that the tribe enjoyed immunity from suit and dismissed the action. Consequently, the remedy of remand was no longer available.

B. Sovereign Immunity
The Council acted pursuant to its constitutional authority when it enacted the Enrollment Ordinance and directed that it (the Council) could revoke privileges of enrollment. The Council did not create a procedure for appeal of revocation. This must be done expressly because all matters heard in review of Council action must arise from an express waiver of immunity or
from application of the above-referenced Accardi doctrine. Absent a waiver of sovereign immunity, this Court lacks the personal jurisdiction in any dispute against the Council. Santa Clara Pueblo, 436 U.S. at 58. A waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.” Id. Only by clear, express, and unequivocal language can the Tribes’ immunity from suit be waived. Id.
This Justice finds persuasive the 5th Circuit’s statement that “any waiver of immunity is to be interpreted liberally in favor or the Tribe and restrictively against the claimant.” S. Unique Ltd. V. Gila R. Pima-Maricopa Indian Comm., 674 P.2d 1376, 1381 (Ariz. App. 1983); citing Maryland Casualty Co. v. Citizens Nat’l Bank, 361 F.2d 517 (5th Cir. 1966). Applying this standard, the procedure for appeal of Council action defined in §12 of the Enrollment Ordinance cannot be read as a waiver of sovereign immunity. Consequently, this court lacks jurisdiction in this suit against the tribe and cannot afford the relief requested by Appellant.

C. Ex Parte Young
The Young doctrine is a narrow exception made available under specific circumstances to avoid sovereign immunity. Ex Parte Young requires a plaintiff to plead and prove the following: (1) that the Council acted palpably outside the scope of its authority; (2) that the Council violated a federal statute, treaty, tribal constitutional provision or some other law to which full faith and credit of the Tribe is required; (3) that the violation is ongoing. If plaintiff successfully demonstrates the preceding, he may only seek prospective injunctive relief. A suit of damages or retrospective relief is not available under the Young exception.
Appellant did not plead Young. Appellant did not plead the elements of Young. Accepting all of Appellant’s allegations as true, Appellant has failed to state a claim under Young. Appellant is the master of his case. Appellant’s case is justly dismissed.
For the aforementioned reasons, I dissent.

**
Publisher's Note: The opinion here incorrectly identifies the Appellants as "the Plaintiffs."


***
Publisher's Note: The dissenting opinion appears to use "appellant" to refer to the Appellee, who was the appellant before the trial court.


1
The record consisted of a Civil Complaint, Defendants’ Motion to Dismiss Complaint for lack Subject Matter Jurisdiction (SMJ); Declaration in Support of Motion; Minutes of Council Meeting 2-7-97; Response to motion to dismiss; Defendants’ reply to Plaintiff’s Response to Motion to Dismiss; Defendants’ Motion to Dismiss Complaint for Failure to State a Claim and Lack of SMJ; Response to Defendants’ motion to Dismiss with attachments; Declaration of Nino Maltos; Memorandum Opinion and Order Granting Defendants’ Motion to Dismiss, in part, and Directing Notice of Rehearing to be Provided to Plaintiff: Enrollment Ordinance (1979) (1999);


2
The principal that tribes enjoy the sovereign’s common law immunity from suit is well established. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). The immunity extends to agencies of the tribes. Weeks Construction, Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668 (8th Cir. 1986). It applies in both state and federal court. See Pan American Co. v. Sycuan Band of Mission Indians, 84 F.2d 416 (9th Cir. 1989) Tribal immunity extends to claims for declaratory and injunctive relief, not merely damages, and it is not defeated by a claim that the tribe acted beyond its power. Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269 (9th Cir. 1991).


3
The fact that a tribe cannot be sued does not defeat all challenges to the exercise of its power. The Supreme Court has held that a tribal officer is not protected by the tribe’s immunity from suit. Santa Clara Pueblo v. Martinez, 436 U.S. at 59. If the official acts beyond his or her authority, or beyond the authority that the tribe had the power legally to confer, the official may be sued, See Baker Elec. Co-op., Inc. v. Chaske, 28F.3d 1466, 1471-72 (8th Cir. 1994).


4
For example: Section 11 Loss of Membership or Enrollment: The Tribal Council may, upon its own motion or the recommendation of the Enrollment Committee, remove person from the Tribal Roll and revoke the privileges of membership under any of the following conditions: a. (Degree of Blood is incorrect). b. The member in question is enrolled in another tribe or band or community in violation of Article II of the Sauk-Suiattle Constitution, unless dual enrollment is the result of a mistake and is corrected as soon as possible. d. The member in question request dis-enrollment or relinquishment of membership. e. (Convictions) f. (Membership affects the cultural integrity of the tribe).
Section 12 Appeals: In those cases where enrollment is denied, the applicant shall also be informed in the same notice that he or she has thirty (30) days from receipt of the notice of denial to petition the Tribal Council in writing for a re-hearing or to request additional time… a. Upon request for such a rehearing, the Enrollment Clerk shall set a specific date, …. The notice of hearing shall again inform the applicant of the applicant’s right to submit evidence and to appear with or without representation or assistance at their own expenses… C. After final denial by the Tribal Council, an applicant denied enrollment shall have such further appeal to the Sauk-Suiattle Tribal Court. Its decision shall be final. d. Any applicant denied membership may file a new application along with proper documentation as outlined in this ordinance.
The above is curious because non-member Indians are given a right to appeal their rejection, are given a right to present evidence, a right to counsel, a right to file again for membership and a right to appeal to Tribal Court. Member Indians that are dis-enrolled have no such rights.