--- Am. Tribal Law ----, 2017 WL 2805041 (Colville C.A.), 13 CCAR 63
Colville Tribal Court of Appeals.
Herman “Lou” STONE, Appellant,
Case No. AP16–017, 7 CTCR 18
Decided January 19, 2017
Trial Court Case No. CV–OC–2014–27145

Attorneys and Law Firms
Mark J. Carroll, Attorney at Law, appeared for Appellant.
Dana Cleveland, Office of Reservation Attorney, appeared for Appellee.
Before Presiding Justice Dennis Nelson, Justice Gary Bass, and Justice R. John Sloan Jr.

Bass, J., with Nelson J. concurring

This matter came before the Court of Appeals (COA) for an Initial Hearing on October 21, 2016. The Appellant appeared in person and was represented by Mark J. Carroll. The Appellee appeared by the Colville Tribal Reservation Attorney Dana Cleveland.

After hearing from the attorneys for the parties, and a review of the record and the law, the COA finds that the dismissal of the action will be affirmed, but on different grounds entered by the Trial Court.



A Complaint was filed by Appellant in the Trial Court against the Colville Confederated Tribes (CCT) Business Council (CBC), and individual members of the CBC, all relating to actions taken by the CBC or the individual members of the CBC. Francis W. Somday II was also named as a Defendant, but his official position was not named, nor any specific actions he took as an official were pled.

Appellee filed a Motion to Dismiss on three grounds: (1) lack of subject matter jurisdiction; (2) failure to state a claim upon which relief can be granted; and (3) mootness. Appellee subsequently filed a second Motion to Dismiss, listing the three original grounds and adding that a settlement agreement executed between the parties released the CCT from the present suit.

The Trial Court granted dismissal of the suit on the basis of failure to exhaust administrative remedies and that the action was barred by the 1992 Settlement Agreement as it arose out of the July 2, 1987 events.

Appellant timely filed an appeal to the Court of Appeals (COA).

The COA finds that the suit against the CBC is barred by sovereign immunity, and the dismissal by the Trial Court is affirmed, on a different basis than found by the Trial Court.

The dismissal of the suit against Francis W. Somday II (Somday) is affirmed on the basis that his official position was not pled, nor any actions he took as an official, which would be need to be pled for the suit to go forward against him. The Trial Court’s dismissal did not address the issue of Somday’s official immunity prong under the sovereign immunity doctrine, but included Somday with the members of the CBC in its ruling with regard to failure to exhaust administrative remedies and the settlement agreement.



The issues raised are issues of law and thus are reviewed under the de novo standard. Green v. Green, 10 CCAR 37, 5 CTCR 29 (02–08–2011).



This appellate court is concerned with the trial court’s holding, and not whether the reasoning of the decision is correct. [G]enerally a correct decision will not be disturbed because it is based on an incorrect ground. Colville Business Council v. Wendell George, 1 CCAR 15, at p 16, citing 5 Am. Jur. 2d (1984). In this case, at the trial court level, the defense of sovereign immunity was not addressed in the Order of Dismissal, although the issue had been raised by Appellee. The holding was that the suit be dismissed. If this court finds that the dismissal was correct but on a different ground than the trial court, the ruling of dismissal will not be disturbed.

In George, supra, Mr. George sued the CBC for alleged violations of his civil rights. The CBC moved to dismiss on the basis of lack of jurisdiction; immunity from suit; lack of a claim upon which relief could be granted; and that the issue raised was a political question.

The Trial Court granted the motion to dismiss on the ground that the issue was a political question. The Trial Court did not reach the issues of lack of jurisdiction; immunity of suit; and lack of a claim upon which relief could be granted.

The COA held that the CBC was protected by the doctrine of sovereign immunity and remanded for dismissal. In its holding the COA held that there was no meaningful distinction between the CBC and the Tribes itself in such a lawsuit. CTLOC § 1.1.06 bars an action against the Tribes and thus the CBC on the grounds of sovereign immunity. The holding in George supra., applies here and the CBC is entitled to the defense of sovereign immunity and the dismissal is proper on that ground as to the CBC.

The issue of sovereign immunity as to Somday rests on a different prong of the sovereign immunity doctrine. Somday may have been acting as the Executive Director of the Tribe, which would be an official of the Tribe, as he was not a member of the CBC at the time of the suit, and each one of the individuals named besides him were members of the CBC. The complaint did not plead that he was an official, and did not allege any acts specific to Somday.

The case of Lou Stone v. Francis Somday, 1 CCAR 9 (CCT, 1984) dealt with the issue of official immunity as opposed to absolute immunity of the CBC. The COA held that officials hold qualified immunity, not absolute immunity, which the CBC has. The ruling in that case held that a Colville Tribal Official enjoys a qualified immunity under Tribal Law and Order Code section 1.1.06. If a Tribal official, while performing official duties, exceeds the scope of his authority, or, while acting within the scope of authority, exercises a power delegated to him by the Tribe which the Tribe is powerless to delegate, official immunity will not bar actions against the official for such conduct.

Here because there is nothing in the pleading naming Somday as an official, or any acts that he specifically performed for this court to assess under the ruling in the Stone v Somday case, supra., the dismissal of the suit against Somday is proper without such pleading, although on a different basis than the Trial Court’s ruling. In the George case supra., because official capacity was not designated or pled, the COA held official immunity was not before the Trial Court or the Court of Appeals. The same rationale is applicable in this case as there was no designation of official capacity or pleading as to Somday, and thus official immunity was not before the Trial Court or the Court of Appeals, and we find that dismissal was proper as to Somday.

Because of the court’s ruling with regard to sovereign immunity, this court did not reach the issue of what effect the expelling of Stone from the CBC in 1987 would have had on his subsequent candidacy or election to the CBC pursuant to CCT 1–8–3.



Based on the foregoing, we find that the suit against the CBC is barred by sovereign immunity. The dismissal by the Trial Court is affirmed. This matter is remanded to the Trial Court for action consistent with this Decision.

Dissent: Justice Sloan believes Appellant has raised issues for which additional briefing would be beneficial and dissents.
All Citations
--- Am. Tribal Law ----, 2017 WL 2805041, 13 CCAR 63