Opinion
No. 60864-9-I.
November 24, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-2-06011-0, James H. Allendoerfer, J., entered November 1, 2007.
Affirmed by unpublished opinion per Becker, J., concurred in by Agid and Leach, JJ.
Appellant Karen Boomer slipped and fell while visiting the Tulalip Casino, which is owned and operated by the Tulalip Tribes. Boomer, who is not a tribal member, sued the Tribes in state court. The trial court properly dismissed her claims because the Tulalip Tribes enjoy sovereign immunity from suit.
The accident occurred in December 2005. Boomer fractured her right arm and incurred medical expenses. Boomer and her husband filed a complaint for damages in state court in July 2007. The sole named defendant was "The Tulalip Tribes d/b/a Tulalip Casino." The complaint alleged that the event occurred at the Tulalip Casino, an entity owned and operated by the Tulalip Tribes.
Without answering the complaint, the Tribes successfully moved for dismissal on grounds of exclusive tribal jurisdiction and tribal sovereign immunity. The Boomers appealed to this court.
"The question of the right to sue (immunity) is distinct from the question of jurisdiction." William V. Vetter, Doing Business With Indians and the Three "S" es: Secretarial Approval, Sovereign Immunity, and Subject Matter Jurisdiction, 36 Ariz. L. Rev. 169, 186 (1994). Because the dismissal of the Boomers' suit in state court can readily be affirmed on the basis that the tribe is protected by sovereign immunity, we do not address the tribe's additional and conceptually more complex argument that the state court lacked subject matter jurisdiction.
Whether a tribe is protected by sovereign immunity is an issue of law that we review de novo. See, e.g., Wright v. Colville Tribal Enter. Corp., 159 Wn.2d 108, 111, 147 P.3d 1275 (2006). As domestic dependent nations, Indian tribes exercise inherent sovereign authority over their members and territories, including sovereign immunity from suit, absent a clear waiver by the tribe or congressional abrogation. Wright, 159 Wn.2d at 112; Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S. Ct. 905, 112 L. Ed. 2d 1112 (1991). Waiver of tribal sovereign immunity will not be implied, but must be unequivocally expressed. Wright, 159 Wn.2d at 115.
The Boomers contend the Tribes expressly waived sovereign immunity through enactment of the Tulalip Tribes Tort Claims Ordinance #122. The Ordinance, however, expresses in §§ 3.a only a limited waiver of immunity to the extent that it provides private persons who are injured by negligent or wrongful acts or omissions of the Tribes with the opportunity to raise their claim in tribal court:
[A]n action for monetary damages may be brought in Tribal Court under this Ordinance against the Tribes by any person for any injury to that person caused (i) by an act or omission by the Tribes.
Ordinance #122 §§ 3.a (emphasis added). The ordinance provides the procedure and deadlines for giving notice of claims and filing actions in tribal court. It is not an express waiver of sovereign immunity for all purposes.
The Boomers argue that the state court should nevertheless entertain their suit because the Tulalip Tribes do not provide a meaningful forum. They rely on Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980). Dry Creek dealt with a complaint by a non-tribal entity that built a hunting lodge within a reservation after receiving assurances that there would be no problem with access. The day after the Dry Creek Lodge was completed and opened, the Tribes closed the road at the request of a nearby Indian family whose allotment the access road had crossed. The Lodge sought a remedy in tribal court, but the tribal judge refused to hear the case without the consent of the Tribes' Joint Business Council, and consent was not given. The Lodge brought a case in federal district court and obtained a jury verdict against the Tribes. The case went up on an appeal posing the question whether the plaintiffs' suit was barred by the tribes' immunity from suit. The 10th Circuit held it was not barred because there had to be a remedy for the deprivation of the plaintiffs' constitutional rights, and there was no remedy within the Tribes. "There has to be a forum where the dispute can be settled." Dry Creek, 623 F.2d at 685.
Unlike in Dry Creek, there is no evidence that the Tulalip Tribes have failed to provide a forum. The Tulalip Tribal Court was an available forum at the time of Karen Boomer's accident in the casino. Indeed, the Boomers filed a complaint in Tulalip Tribal Court in June 2008, while this appeal was pending in this court.
The Boomers, however, would have us extend Dry Creek and hold that tribal sovereign immunity can be overcome by a showing that the relief available in the tribal forum is not equivalent to what is available in state court. They argue that the Tulalip tribal court is not a meaningful forum because under Ordinance #122, there is a cap on the amount of damages that a plaintiff can recover, there is no right to a jury trial, and there is a relatively short statute of limitations.
The Tulalip Tribal Constitution provides the Board of Directors of the Tulalip Reservation with the authority to promulgate and enforce ordinances "subject to any limitations imposed by the statutes or the Constitution of the United States of America." The Boomers have failed to cite any provisions of the statutes or Constitution of the United States requiring tribal courts to conduct jury trials, to permit unlimited damage awards, or to ensure that statutes of limitation are no shorter than in state court. We find no merit to their argument that the Tulalip Tribal Court is a meaningless forum and we reject the proposition that Dry Creek has any application in this case.
Tulalip Tribes, Const., Art. VI, §§ 1.
It appears that the suit limitations period established by tribal ordinance expired before the Boomers filed their claim in tribal court. The Boomers argue that they were misled by the Tribes' insurance adjuster in violation of their due process rights. One week after the accident, a claims representative for the Tribes' insurer sent Boomer a letter saying that the incident had been referred to his office for handling. Boomer responded a few months later, requesting a claim form and a copy of any report done by the casino, and asking that the Tribes not destroy the videotape of the incident. There was more correspondence in which the adjuster inquired about the extent of damages, and Boomer responded with details of her injuries and medical bills. Boomers now argue that the correspondence from the adjuster lulled them into thinking that their claim would be handled administratively. This argument is also without merit. Nothing said by the adjuster misrepresented the fact that their remedy was in tribal court. The argument that the adjuster deceived them into delaying the filing of their action is one that should be made in tribal court, not in this court.
The Boomers argue that the trial court should have permitted them to conduct discovery before dismissing their suit, citing Wright. In Wright, a non-tribal member formerly employed by a tribal corporation sued his supervisor and two corporate entities of the Colville Tribe for employment discrimination. The trial court dismissed the case for lack of subject matter jurisdiction. The Supreme Court affirmed on the basis that the tribal corporations enjoyed sovereign immunity and could not be sued in state court. Three dissenting justices said that the factual record was insufficient to determine the immunity issue and that a fact-finding hearing would have been helpful. Wright, 159 Wn.2d at 128-31. Two concurring justices said that in some cases fact-finding may be necessary to determine whether sovereign immunity applies but they concluded it was not necessary in this instance because the relevant facts were undisputed. Wright, 159 Wn.2d at 121.
The Boomers speculate that other tribal entities may have been involved in the running of the Casino on the night in question and that these entities may have had indemnification or liability agreements that included an express waiver of sovereign immunity. But they have not presented a factual basis for such speculation.
The Boomers' reply brief asserts that the Tribes have entered into a gaming compact with the State of Washington in which the Tribes waived objections to the subject matter jurisdiction of the state court for gaming and related crimes. We decline to address this argument, both because it was raised for the first time in the reply brief and also because the Boomers have failed to show that the existence of such an agreement would affect the Tribes' sovereign immunity.
Because the undisputed facts are dispositive of the sovereign immunity issue as they were in Wright, no evidentiary hearing was necessary.
The trial court properly granted the motion to dismiss because the Tribes are immune from suit in state court.
Affirmed.