23 NICS App. 18, O’DONNELL v. WYAND (June 2025)

IN THE MUCKLESHOOT TRIBAL COURT OF APPEALS
MUCKLESHOOT INDIAN RESERVATION
AUBURN, WASHINGTON

Connie O’Donnell, Appellant
 
v.
 
Eric Wyand, Appellee.

NO. MUC-AP-01/25-016 (June 23, 2025)

Before: Jerry R. Ford, Presiding Judge; Ric Kilmer, Judge; Lisa M. Vanderford-Anderson, Judge.

OPINION

Per curiam:

SUMMARY OF PROCEEDINGS

This matter is before the Muckleshoot Tribal Court of Appeals pursuant to a Notice of Appeal filed by Appellant, Connie O’Donnell, on January 21, 2025, appealing the Muckleshoot Tribal Court’s Order entered January 14, 2025, dismissing the case due to lack of subject matter jurisdiction.

According to the Findings of Fact in that January 14 order, at all times pertinent to this case, Connie O’Donnell, Appellant here and the Plaintiff in the case below, was employed as a teacher in the Muckleshoot Tribal School (MTS) pursuant to an employment contract. Eric Wyand, Respondent here and defendant in the case below, was an agent of the MTS who had the authority to terminate Ms. O’Donnell’s employment with the School “for cause.” (He was the Superintendent.) MTS, through Mr. Wyand, terminated her employment, effective June 14, 2024.

On October 24, 2024, Ms. O’Donnell filed in the Muckleshoot Tribal Court (Trial Court) a complaint against Mr. Wyand, in both his official capacity as an agent and employee of the MTS, and in his personal capacity, for equitable relief for an alleged breach of her employment contract and for tortious interference.

In response, on November 18, Mr. Wyand filed a motion to dismiss the complaint on various grounds, including lack of subject matter jurisdiction, sovereign immunity protection, and failure to state a claim upon which relief can be granted.

On January 14, 2025, the Trial Court entered an order dismissing the complaint on the grounds that it did “not have subject matter jurisdiction over the claims raised by plaintiff.” In its Statement of the Case in that order, the Court stated: “Because the Court finds that it does not have jurisdiction over plaintiff’s claim, the Court will only address jurisdiction in this order.” So, the Court did not rule on the other grounds raised by defendant Mr. Wyand in his motion to dismiss. Further, the Court did not indicate in its order whether the dismissal was with or without prejudice.

STANDARD OF REVIEW

The Muckleshoot Tribal Code does not provide in its Code (MTC) a standard of review for the Court of Appeals to follow when deciding cases before it. In re the welfare of J.P. and B.C.-M. 20 NICS App. 19, 20 (Muckleshoot Tribal Ct. App. 2022.) As we further said in that case:

MTC 3.02.070, entitled Decisional Authority, provides at subsection (a) that “decisions on matters of both substance and procedure” shall be based on a specified order of precedent, from the Constitution and Bylaws, MTC, Resolutions, customs, traditions and culture, laws and cases of other jurisdictions (as guidance only, so long as they do not conflict with the spirit or the letter of Muckleshoot law), and the common law.

MTC 3.02.070 (b) provides:

The courts shall not recognize or apply any federal, state, or common law, rule, or procedure which is inconsistent with either the spirit or the letter of either the Constitution and Bylaws of the tribe, or with any ordinances or resolutions of the tribe, or with the customs, traditions, or culture of the tribe unless otherwise required, in the case of federal law only, by the Supremacy Clause of the United States Constitution.

“In the absence of any specified standard of review, we review issues of fact under the ‘clearly erroneous’ standard and issues of law de novo.” In the Guardianship of Three Indian Minors, 10 NICS App. 29, 32 (Muckleshoot Tribal Ct. App. 2011), citing Johns and McGhee v. Allen, 6 NICS App. 196, 196-197 (Skokomish Tribal Ct. App. 2004).

DISCUSSION

Appellant made only one “Assignment of Error” in her Brief, p. 2: that the Court “erred when it stated that, during the hearing [on the motion to dismiss], plaintiff’s counsel failed to identify any constitutional provision, law, ordinance, or resolution, that, by its plain language, grants the Court subject matter jurisdiction to hear the case.” Appellant assigned no other errors allegedly made by the Court – especially as it pertains to the Court’s findings of fact in its dismissal order.

The parties, in their respective briefs, argued various grounds for reversing or affirming the Court’s dismissal. Because we decide this matter on sovereign immunity grounds only, we do not offer any opinion as to those other grounds argued in the briefs.

The Trial Court dismissed the case on the ground that it did not have subject matter jurisdiction. We affirm that dismissal, but solely on the ground of sovereign immunity. As Respondent argued at p. 9 of his brief, citing a couple of Washington state court cases, this Court “may sustain a Trial Court on any correct ground, even though that ground was not considered by the Trial Court.” We agree. So did counsel for Appellant at oral argument. See also, The Tulalip Tribes v. Morris, 12 NICS 56, 58 (Tulalip Tribal Ct. App. 2014): “This Court may affirm the judgment of a trial court on any ground supported by the record, even if the trial court did not rely on it.” (Citations omitted.)

At page 2 of its dismissal order, the Trial Court’s second finding of fact was: “The defendant is currently, and was at the time of the events alleged in the plaintiff’s petition, an agent of the MTS who had the authority to cause the termination of a teacher.” The third finding of fact was: “MTS, through the defendant, terminated the plaintiff on June 14, 2024.” Appellant assigned no error to these two findings in either her notice of appeal or brief.

In Seven Arrows, L.L.C. v. The Tulalip Tribes, 5 NICS App. 6 (Tulalip Tribal Ct. App. 1997), the appellant there failed to “assign error to any trial court findings of fact.... This Court will not review a trial court order to which no error has been assigned.” We agree with that policy. We need not decide whether the Trial Court made an “obvious error” as to either finding, as is the usual standard of review for findings of fact, if no error has been assigned by the appellant to it. We accept those two findings of fact as being true.

Employees and agents of the MTS, as is the MTS itself, are explicitly entitled to sovereign immunity. MTC 3.01.020:

Neither the establishment of the Muckleshoot Tribal Court nor the granting of jurisdiction to the tribal court shall be nor is it intended to be a waiver of the sovereign immunity of the Muckleshoot Indian Tribe. Any waiver of the tribe’s sovereign immunity must be separately, expressly and unequivocally set out in a tribal resolution or ordinance.

MTC 17.01.030 provides, in relevant part: “As a Division of the Muckleshoot Indian Tribe it is the intent of the Tribe that the Tribal School, its Commissioners, agents and employees be protected by all of the Tribe’s rights, privileges and immunities. Nothing set out in this Title is intended to nor shall it waive the Tribe’s Sovereign Immunity.” (Emphasis added.) MTC 17.02.150:

The adoption of this Title and its implementation shall not be nor is it intended to be a waiver of the Muckleshoot Tribe’s Sovereign Immunity, the Sovereign Immunity of the Commission or Tribal School, or the Sovereign Immunity of any Muckleshoot, School, or Commission officer, employee or agent. The Muckleshoot Tribal School is not authorized to waive the Sovereign Immunity of the Tribe without express Tribal Council approval.

Exhibit 1 of the Appellant’s original complaint/petition is the Tribe’s educational compact with the State of Washington, and is part of the Trial Court Record (TCR). Section 7(b) of that Compact, pp. 22-23 of the TCR, states:

Neither the Muckleshoot Indian Tribe nor the Superintendent [of Washington] are creating, or intend to create, any rights in third parties which would result in claims of any nature whatsoever against the Tribe or the State as a result of this Compact.     Neither the Tribe nor the State has waived immunity from third party suits or claims of any kind against them, and nothing contained in this Compact shall be construed to effect such a waiver, in whole or in part, of said immunity.

Therefore, because the Trial Court found that Mr. Wyand was an agent of the MTS who had the authority to cause the termination of a teacher, and that the MTS (a division of the Muckleshoot Indian Tribe itself) was the entity that terminated Appellant’s employment, via Mr. Wyand, we find that he is entitled to sovereign immunity protection. We cannot find, and Appellant has not identified, any Tribal ordinance, resolution or compact that expressly and unequivocally waives his, or the MTS’s, immunity from suit.

Again, as the Trial Court found, the MTS, through Mr. Wyand, effected the termination. The MTS, and its agents and employees, are all entitled to sovereign immunity protection, per MTC 17.01.030 and 17.02.150. Further, “tribal courts do not have the authority to waive tribal sovereign immunity, in the interest of justice or otherwise.” Kerr v. Muckleshoot, 6 NICS 36, 37 (Muckleshoot Tribal Ct. App. 2001). (It could also be said that the Tribal Court has no subject matter jurisdiction due to this sovereign immunity.)

We are not convinced by Appellant’s claims and arguments that Respondent acted “outside his official authority.” The Trial Court clearly found that he, as an agent of the MTS (and the Muckleshoot Indian Tribe itself, we conclude), had the authority to cause Appellant’s termination from employment. There is nothing whatsoever in the record that even hints that he was acting in his personal capacity. Appellant cannot circumvent this sovereign immunity protection by alleging that Respondent acted in his “personal capacity” when he clearly had the authority to effect the termination of employment of any MTS employee, and exercised that official authority, as the Trial Court found.

CONCLUSION AND ORDER

MTC 3.02.060 i) states, in relevant part, that the Court of Appeals shall either affirm, reverse, modify, or amend the decision of the court.

Based upon the above reasons, we AFFIRM the Muckleshoot Tribal Court’s Order entered January 14, 2025, dismissing the case, but we do so on sovereign immunity grounds only.