12 NICS App. 1, LOMELI v. KELLY (January 2014)
IN THE NOOKSACK TRIBAL COURT OF APPEALS
SONIA LOMELI; TERRY ST. GERMAIN; NORMA ALDREDGE; RAENNA RABANG; ROBLEY CARR, individually on behalf of his minor son, LEE CARR, enrolled member of the Nooksack Indian Tribe, Plaintiffs/Appellants,
v.
ROBERT KELLY, RICK D. GEORGE, AGRIPINA SMITH, BOB SOLOMON, KATHERINE CANETE, LONA JOHNSON, JEWELL JEFFERSON, AND ROY BAILEY, Defendants/Appellees.
NO. 2013-CI-APL-002 (January 15, 2014)
(Petition for Fed. R. App. P. 40 Review denied February 14, 2014)
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Eric Nielsen, Chief Judge; Douglas Nash, Judge; Mark W. Pouley, Judge. |
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Gabriel S. Galanda, Anthony S. Broadman, and Ryan D. Dreveskracht of Galanda Broadman PLLC, for Appellants; Thomas P. Schlosser and Rebecca JCH Jackson of Morisset Schlosser, Jozwiak & Somerville, and Grett Hurley and Rickie Armstrong, Nooksack Office of Tribal Attorney, for Appellees. |
12 NICS App. 1, LOMELI v. KELLY (January 2014) p. 2
OPINION
Judges are not sages. We do not delude ourselves into believing we have the wisdom of a Solomon. It is not our role to insert ourselves into the Tribe’s political fray, or second guess the political judgments made by the Tribe’s elected leaders or its voting members, even if we believe those judgments unwise. We, like the trial court, are limited to resolving legal questions where authorized by the Tribe’s Constitution1 and laws.
12 NICS App. 1, LOMELI v. KELLY (January 2014) p. 3
II. FACTS
The Trial Court made the following largely undisputed relevant factual findings. The record supports those findings so we adopt them for the purpose of this appeal.2
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notifying them of their rights to hearing under Title 63 of the Nooksack Tribal Code, which governs enrollment and disenrollment procedures.
On March 1, 2013, the Tribal Council passed Resolution 13-38, which authorized a request to the Secretary of the Interior to hold a Secretarial election to amend the Nooksack Constitution’s Article II on Membership by deleting section 1.h thereof. See Const. art. X (requires the Secretary of the Interior hold an election to amend the constitution if requested by the Council or one-third of the Tribe’s voters). That request went to the Secretary of the Interior, which held an election on June 21, 2013. The Constitutional amendment passed, and was certified on August 2, 2013 by the Bureau of Indian Affairs (BIA) pursuant to authority duly delegated to the BIA by the Secretary of the Interior.
The Appellants filed suit in the Nooksack Tribal Court on March 13, 2013 seeking declaratory and injunctive relief. The original Complaint was amended with leave of the court.3 The Appellants also sought two preliminary injunctions to enjoin the Tribal Council from conducting disenrollment proceedings. The Tribal Court denied both.
Following the initial denial, the Appellants sought Permission to File an Interlocutory Appeal with the Nooksack Court of Appeals. This Court’s Chief Judge refused to grant permission for an interlocutory appeal, finding the trial court “did not commit ‘obvious error’ which would render further proceedings useless.” Order Denying Permission for an Interlocutory Appeal, June 18, 2013, at 6. The Appellants then sought an order to stay the disenrollment proceedings, which we granted pending the Tribal Court’s decision on the dismissal motion.
12 NICS App. 1, LOMELI v. KELLY (January 2014) p. 5
The trial court heard Appellees’ motion to dismiss on June 22, 2013.4 The court granted the motion. It dismissed Appellants’ second amended complaint, finding it did not have subject matter jurisdiction. The court ruled:
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III. DECISION
The majority of appellate courts review trial court decisions under one of the three standards depending on the issues. “For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for ‘abuse of discretion’).” Pierce v. Underwood, 487 U. S. 552, 558, 108 S. Ct. 2541, 2546 (1988); Dodge v. Hoopa Valley Gaming Commission, 7 NICS App. 51, 54 (Hoopa Valley Tribal Ct. App. 2005); Raymond Johns and Leslie McGhee v. Gracie Allen, 6 NICS App. 196, 196-197 (Skokomish Tribal Ct. App. 2004) (“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.”).
A court's ruling on subject matter jurisdiction,5 tribal sovereign immunity,6 and its decision to dismiss a complaint7 are all questions of law. We review those issues de novo.
B. Subject Matter Jurisdiction
Appellants contend the Tribal Court (court) erred in dismissing the suit on the grounds it lacked subject matter jurisdiction. Their suit was brought against the Appellee Tribal Council members and certain named Tribal employees, claiming that while acting in their official capacity they adopted and sought to enforce resolutions and laws Appellants allege violate the Nooksack Tribe’s Constitution. The essence of their argument is that because they only request injunctive relief, the court had subject matter jurisdiction to grant the relief they requested under the Ex parte Young 8exception to the principle of sovereign immunity.
Appellants further argue that in its determination that it lacked subject matter jurisdiction, the court erred by analyzing the merits of their claims. Appellants contend that when the Ex parte Young doctrine is pled, the court’s only permissible inquiry is whether the complaint alleges an ongoing violation of law.9
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Appellees assert the Ex parte Young doctrine has never been recognized in Nooksack jurisprudence, and is inapplicable in the context of tribal sovereignty. Appellees argue even if the Ex parte Young doctrine is applicable, the trial court correctly ruled the Appellees’ actions were shielded by the Tribe’s sovereign immunity. Appellees further contend the Appellants invited the court to rule on the merits by litigating the merits without objection.
1. Sovereign Immunity and the Ex parte Young Doctrine
The immunity of Indian tribes from suits in federal and state courts is well-established; such suits may not be entertained unless "Congress has authorized the suit or the tribe has waived its immunity." Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754 (1998). In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978), the Court, described tribes “as possessing the common law immunity from suit traditionally enjoyed by sovereign powers.”
A tribe’s sovereign immunity extends to its officials and employees while acting within their scope of authority. Cline v. Cunanan, NOO-CIV-02/08-5, at 4 (citing Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 479 (9th Cir. 1985) and United States v. Yakima Tribal Court, 806 F.2d 853, 861 (9th Cir. 1986)).10 The Nooksack Tribe has codified that legal principle in NTC 10.00.100, which in general terms divests the court of jurisdiction in “any suit brought against the Nooksack Tribe, its officials, its entities or employees without the consent of the Tribe” whether acting in their official or individual capacity.
States, like tribes, are also protected from unconsented suits by their sovereign immunity. See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). With one narrow exception, state immunity from suit likewise extends to its agencies and officers. The United States Supreme Court recognized that exception in Ex parte Young.
In Ex parte Young, the Supreme Court held that private litigants could seek an injunction in federal court against a state official, prohibiting the official from enforcing a state law claimed to violate the United States Constitution. Young, 209 U.S. at 159–168. Ex parte Young rests on the fiction that such a suit is not really against the state, but rather against an individual who has been “stripped of his official or representative character” because of his or her unlawful conduct so any such action would be ultra vires, and state sovereignty therefore cannot be offended by a federal judicial command to the state officer to "conform his or her conduct to the Constitution in the future.” Id. 159–160. Ex Parte Young only applies to prospective declaratory judgments.
12 NICS App. 1, LOMELI v. KELLY (January 2014) p. 8
See Alden v. Maine, 527 U.S. 706, 747, 119 S.Ct. 2240 (1999) (“In particular, the exception to our sovereign immunity doctrine recognized in Ex Parte Young ... is based in part on the premise that sovereign immunity bars relief against States and their officers in both state and federal courts, and that certain suits for declaratory or injunctive relief against state officers must therefore be permitted if the Constitution is to remain the supreme law of the land.”); Verizon Maryland, Inc. v. Public Serv. Comm'n of Maryland, 535 U.S. 635, at 646.
Federal courts also recognized the necessity of a forum to challenge the federal government's enforcement of unconstitutional laws. The courts applied a variation of the Ex parte Young doctrine to allow suits in federal court to enjoin federal officials and employees from enforcing an unconstitutional law until Congress stepped in to provide an alternative forum. For a number of years, prospective relief against federal officials was available under an Ex parte Young type fiction until passage of the federal Administrative Procedures Act. EEOC v. Peabody W. Coal Co., 610 F.3d 1070, 1078, 1085 (9th Cir. 2010) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949)).
2. The Nooksack Constitution
The Nooksack Tribal Council is the Tribe’s governing body and acts through its officers elected by the Tribe’s voting members. Const. art. II. Council members are chosen from qualified Tribal members. Const. art. IV, § 2. But, unlike state or federal governments, the Nooksack Tribe does not have a separate legislative and executive branch. The elected Tribal Council is both the Tribe’s legislative and executive body. Const. art. VI, §§ 1-3. The Tribe’s voting members delegate to the Council its legislative and executive powers and authority. Const. art. VI, § 4.
The Constitution requires the Tribal Council perform certain legislative acts (denominated as “duties”), and it identifies those. For example, it states the Council "shall" adopt laws governing involuntary loss of membership, "shall" provide through ordinance the establishment of a tribal court, “shall” pass ordinances safeguarding minors and incompetents, and “shall” establish by ordinance a police force. Const. art. II, § 4, art. VI, §§ 2.A and 2.B.11 It also grants to the Tribal Council the authority to perform discretionary legislative and executive acts. Const. art. VI.
The Council's legislative and executive power and authority is not unfettered but subject to the limitations imposed by the Constitution. The Nooksack Constitution grants the Council the authority to “promulgate ordinances for the purpose of safeguarding the peace and safety of the members of the Nooksack Indian Tribe” and to “adopt resolutions regulating the procedures of the tribal council itself and of other tribal agencies and officials.” Const. art. VI, §§ 1.H and 1.J. Each of these powers, however, is exercised “subject to any limitations imposed by the Nooksack Constitution and any federal laws that may be applicable.” Const. art. VI, § 1 (emphasis added). Germane to the issues in this case, the Constitution specifically grants the Council “the power to enact ordinances … governing future membership in the tribe, including
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adoptions and loss of membership.” Const. art. II, § 2. Just as the Council’s general powers to promulgate ordinances and adopt resolutions are subject to any limitations imposed by the Constitution, the Council’s power to enact ordinances governing membership must be exercised “in conformity with this constitution.” Const. art. VI, § 1. Simply put, the actions of the Tribal Council must conform to the Constitution.
The Nooksack Constitution also includes a Bill of Rights, which provides:
Const. art. IX.
The Constitution’s language prescribing the Tribal Court’s jurisdiction is where our analysis begins. One constitutionally required Tribal Council duty is “to provide, through ordinance, the establishment of a tribal court.” Const. art. VI, § 2.A.1. The Council has done so through Title 10. But it is the Constitution that prescribes the Tribal Court’s jurisdiction. Article VI, § 2.A.3 of the Nooksack Constitution reads:
This Court (Tribal Court) shall have jurisdiction over all Indians on tribal lands; over all civil matters concerning members of the Nooksack Indian Tribe; over all matters concerning the establishment and functions of the tribal government, provided that nothing herein shall be construed as a waiver of sovereign immunity by the tribal government; and over all cases and controversies between Indians and non-Indians where such cases are brought before by stipulation of the non-Indian, provided the court shall have jurisdiction over civil matters arising on tribal lands without the necessity of stipulation of any parties; and provided jurisdiction over Indian employees of the federal government for matters concerning the duties and actions of such employees in the furtherance of their employment shall be subject to the rules and regulations prescribed by the federal government. (Emphasis added).12
12 NICS App. 1, LOMELI v. KELLY (January 2014) p. 10
In Campion v. Swanasel, 4 NICS App. 159, 161 (1996), this Court held the clauses “over all civil matters concerning members of the Nooksack Indian Tribe” and “over all matters concerning the establishment and functions of the tribal government” were two distinct grants of Tribal Court jurisdiction. In Campion, eight tribal members filed a complaint against eight other tribal members and the Nooksack Tribal Council alleging the 1996 amendments to the Nooksack Election Ordinance were unconstitutional and denied them their voting rights. The Campion Court held because the “action presents issues unique to the members of the Nooksack Indian Tribe regarding the manner in which the 1996 tribal election was conducted,” under the “over all civil matters concerning members of the Nooksack Indian Tribe” clause, the Tribal Court had subject matter jurisdiction over the suit. Id. The Campion court rejected the argument the clause limited the Tribal Court’s jurisdiction to cases between tribal members. It reasoned:
Id.
Our role, “to abide by the clear and unambiguous language” of constitutional and statutory provisions, requires we determine the Constitution’s meaning. To determine the meaning of its language we will employ traditional rules of grammar. See Lake County v. Rollins, 130 U.S. 662, 670, 9 S.Ct. 651, 652 (1889) (“To get at the thought or meaning expressed in a statute, a contract, or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them. If the words convey a definite meaning, which involved no absurdity, nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the legislature have the right to add to it or take from it.”).
The Constitution’s language defining the Tribal Court’s jurisdiction is punctuated in a methodical way, to contain four clauses, each separated by a semicolon. A semicolon is used to show a “stronger separation between the parts of a sentence than does a comma.” Madeline Semmelmeyer & Donald O. Bolander, The New Webster's Grammar Guide 235 (Berkeley ed. 1991). It is used to “separate phrases, clauses, or enumerations, of almost equal importance, especially when such phrases or clauses contain commas within themselves.” Lois Irene Hutchinson, Standard Handbook for Secretaries, 239 (8th ed.1979).
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these two clauses, and the second clause contains a comma within itself, indicating the two clauses are of equal importance and confer two separate and distinct grants of jurisdiction.
The last antecedent rule, another grammatical rule commonly applied in discerning the meaning of a statute, provides that a limiting phrase “should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376 (2003). The rule disfavors an interpretation that would have words “leaping across stretches of text, defying the laws of both gravity and grammar.” Flowers v. Carville, 310 F.3d 1118, 1124 (9th Cir. 2002).
Moreover, the enumeration of powers is also a limitation of powers, because “[t]he enumeration presupposes something not enumerated.” Gibbons v. Ogden, 9 Wheat. 1, 195, 6 L.Ed. 23 (1824). Where the legislative body uses certain language in one part of a statute and different language in another, it is generally presumed that the legislature acts intentionally. See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983); see also Boudette v. Barnette, 923 F.2d 754, 756–57 (9th Cir.1991) (The doctrine of “expressio unius est exclusio alterius” “creates a presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions”). The inclusion of the limiting phrase “that nothing herein shall be construed as a waiver of sovereign immunity by the tribal government" in the clause “over all matters concerning the establishment and functions of the tribal government,” but its omission in the clause “over all civil matters concerning members of the Nooksack Indian Tribe,” leads to the presumption where the matter concerns members of the Tribe the Tribal Court has subject matter jurisdiction notwithstanding the Tribe’s sovereign immunity.
Traditional rules of grammar and statutory construction support the Campion court’s holding that Article VI, § 2.A.3 of the Nooksack Constitution confers subject matter jurisdiction with the Tribal Court “over all civil matters concerning members of the Nooksack Indian Tribe” and “over all matters concerning the establishment and functions of the tribal government” when there is a waiver of immunity. The threshold question is whether a complaint alleges civil matters “concerning members of the Nooksack Indian Tribe” or “matters concerning the establishment and functions of the tribal government.” If the allegations are the former, the Tribal Court has subject matter jurisdiction regardless of whether the Tribe’s officials and employees are clothed with the Tribe’s sovereign immunity. If, however, the allegations concern the “establishment and functions of the tribal government,” the court has no subject matter
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jurisdiction unless the Tribe expressly waives sovereign immunity. Olson v. Nooksack Indian Housing Authority, 6 NICS App. 49, 51-52 (Nooksack Tribal Ct. App. 2001).
3. Tribal Court Jurisdiction under the Constitution and Title 10
The functions of the Tribe’s government are not much different than those of any government. Generally, governmental functions are functions intimately related to the public interest and generally performed by government employees.13 These functions require either the exercise of discretion in applying government authority or the use of value judgments in making decisions for the government. Elected Council members, and the Tribe’s agents, must be free from intimidation, harassment and the threat of lawsuits in executing the functions of tribal government. The Tribe’s officers necessarily enjoy the discretion to determine the manner and method in which it administers the Tribe’s governmental functions. The Constitution’s proscription on the Tribal Court’s subject matter jurisdiction where there is no waiver of immunity when the issue concerns “the establishment and functions of the tribal government” supports the rationale that “The Nooksack Tribal Council and its officers need to be able to enact ordinances and conduct business without constantly having to defend themselves against suit.” Cline v. Cunanan, NOO-CIV-02/08 – 5 at 7 (2009).
A duty, however, is an obligation. While the manner or means of performing a duty allows for discretion and value judgments, its performance is nonetheless required. The Nooksack Constitution requires the Tribal Council to perform certain legislative duties. Const. art. II, § 4, art. VI, § 2.A and 2.B. The failure of the Tribe’s officers to perform a constitutionally required act is a “civil matter[] concerning members of the Nooksack Indian Tribe” and subject to the Tribal Court’s jurisdiction to compel the officers to perform the constitutionally required act.
An ordinance adopted by the Tribal Council under its delegated authority cannot trump the Constitution adopted by the Tribe’s membership. The Tribal Council does not have the power or authority to enact an ordinance that conflicts with the jurisdiction granted the Tribal Court by the Constitution. Our duty is to harmonize Title 10, the ordinance establishing the Tribal Court and its jurisdiction, and the Constitution if possible. See Zadvydas v. Davis, 533 U.S. 678, 689, 121 S.Ct. 2491 (2001) (statutes are to be construed so as to avoid constitutional questions if possible.). Both the trial court and this Court are required to interpret and supplement Title 10 with the “traditions, customs and common understanding of the people of the Nooksack Tribe.” NTC 10.00.070. And Title 10 is to be liberally interpreted and applied to protect individual rights “guaranteed by” the Nooksack Constitution and the Indian Civil Rights Act. NTC 10.00.80.
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Title 10 recognizes the Tribal Court's jurisdiction to compel the Tribe’s officers to do what the constitution requires. NTC 10.00.100 divests the court of subject matter jurisdiction in “any suit brought against the Nooksack Tribe, its officials, its entities or employees without the consent of the Tribe,” except the court has the authority to enter declaratory or injunctive relief when “any officer, employee or agent of the Nooksack Indian Tribe” is sued “to compel him/her to perform his/her non-discretionary duties under the laws of the Nooksack Indian Tribe and the United States.” (Emphasis added). NTC 10.00.100(b).
This provision shields the Tribe’s government from attacks that could threaten the Tribe’s limited resources and its ability to govern itself, but is consistent with constitutional requirements and the constitutional mandate that the Tribal Court shall have jurisdiction over “all civil matters concerning members of the Nooksack Indian Tribe.” We interpret Title 10 as a codification of the Tribal Court’s constitutional grant of jurisdiction to authorize the issuance of a writ of mandamus to compel Tribal Council officers to perform constitutionally required non-discretionary duties.
Under NTC 10.00.050, the Tribal Court has “exclusive jurisdiction” over all matters where the Tribe’s officers14 are parties in their official capacity. That provision specifically
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prohibits the court from “exercising jurisdiction over the Nooksack Indian Tribe without an express waiver of sovereign immunity” and provides it shall not be construed as a waiver of sovereign immunity of the Tribe or its officers. Where the Tribe consents to a suit, NTC 10.00.90(b) prohibits the Tribal Court from entering a temporary or preliminary restraining order “against the Nooksack Indian Tribe or its officer, employee, or agent acting within the scope of his/her authority.” NTC 10.00.90(b) (emphasis added). NTC 10.00.90(b) “shall not apply to the Nooksack Tribal Council.” NTC 10.00.90(b)(2).15
It is possible to interpret Title 10 consistent with the Constitution’s prescription regarding the Tribal Court’s jurisdiction. Title 10 recognizes the Tribal Court's “exclusive jurisdiction” over all matters where the Tribe’s officers are parties in their official capacity. Although that exclusive jurisdiction is not to be construed as a waiver of the sovereign immunity of the Tribe or its officers, sovereign immunity is not at issue if the Tribe’s officer, employee or agent, acting in his or her official capacity, enforces or threatens to enforce an unconstitutional law or policy, because he or she does not have the "authority" to enforce laws that do not comply with the Constitution. Where a Tribal member sues a Tribal officer, employee or agent in their official capacity alleging the law or policy is unconstitutional, the Tribal Court has jurisdiction to afford declaratory or injunctive relief. Our interpretation of Title 10 comports with the Constitution granting the Tribal Court jurisdiction over “civil matters concerning members of the Nooksack Indian Tribe” and is consistent with the Constitution's unmistakable requirement there be a forum for Tribal members to challenge the constitutionality of Tribal laws and policies.16
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We hold: Where a suit is brought by a Tribal member against an officer, employee or agent of the Tribe acting in his or her official capacity and alleges the law or policy the officer, employee or agent is enforcing or threatening to enforce is unconstitutional, the Tribal Court has subject matter jurisdiction under both Article VI, § 2.A.3 of the Nooksack Constitution17 and Title 10 of the Nooksack Tribal Code to order declaratory or injunctive relief.
Given our holding, we decline to accept Appellants’ invitation to apply the Ex parte Young exception to Nooksack jurisprudence. The doctrine is ill-suited to the structure of the Tribe’s government, which combines both legislative and executive power in the Tribal Council, and its Constitution. As discussed in note 10, supra, and elsewhere in this opinion, adopting Ex parte Young as proposed by Appellants could significantly compromise the Tribal Council’s ability to efficiently exercise its duties and powers on behalf of the Tribe and the Tribe’s members. Furthermore, the rationale underlying the doctrine, state compliance with the federal constitution, is inapplicable. We find it is unnecessary to employ an Ex parte Young type fiction where the Tribe’s Constitution itself clearly provides a Tribal member with a right to challenge the enforcement or threatened enforcement of an unconstitutional law or policy, and with a forum where the member can bring that challenge.
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C. Plaintiffs/Appellants
On August 14, 2013, this Court entered an Order Staying Proceedings stating “disenrollment proceedings authorized by the order and judgment shall be stayed pending this Court’s final decision.” Appellees’ Motion for Clarification argued our order was unclear, overly broad, and in error because (1) “the sole Appellants before the trial court and this Court are five Nooksack tribal members subject to disenrollment proceedings;” (2) the Tribal Council, not the Tribal Court, “authorized” the disenrollment proceedings, and thus an automatic stay under NTC 80.06.010 “is limited to reviving the lawsuit and does not stay the disenrollment proceedings;” and (3) a stay that enjoins the disenrollment proceedings would in effect constitute an injunction, the Court of Appeals lacks the authority to issue injunctions, and even if the Court had authority to issue injunctions, doing so here “is unwarranted under the standard for granting injunctive relief articulated by the federal courts.” Appellees’ Motion for Clarification included a lengthy footnote arguing that this is not a class action, Appellants having “neither sought class certification, nor alleged sufficient facts to proceed as a class,” and that the five named Appellants18 “are seeking relief for themselves alone.”
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regarding disenrollment of certain Nooksack Tribal members . . .”; and (2) “[n]o person will be disenrolled prior to completion of the meetings before the Tribal Council, regardless of whether that individual has requested a meeting with the Tribal Council.”
We hereby furnish a list of those individuals we are authorized to represent in Lomeli v. Kelly and in the Disenrollment Proceedings. In Lomeli, we represent the six enrolled Nooksack member plaintiffs . . . as well as those similarly situated. See First Amended Complaint . . . . To be equally clear to the Tribal Council as we have been to the Tribal Court, Lomeli is a distinct matter from the Disenrollment Proceedings.
We subsequently found both the March 20 stipulation and the April 12th letter ambiguous. We ordered the trial court to issue findings of fact and conclusions of law as to the effect of the May 20 stipulation, and who were the plaintiffs in this suit. We consolidated that issue with the others in this appeal.
The trial court found the complaint only names six plaintiffs. On each occasion where the trial court requested clarification on the identity of the plaintiffs in this case, counsel for the plaintiffs stated they represented the named plaintiffs only. Plaintiffs never sought class certification, nor did they amend their complaint to add plaintiffs other than Robley and Lee Carr,19 and the stipulation made a distinction between those persons counsel claimed to represent in the disenrollment proceedings and in this case. Order at 2-5.
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Appellants contend the plaintiffs in this case are all those who the Tribe seeks to disenroll, and not just those plaintiffs named in the complaint. We review the trial court’s findings of fact under the clear error standard. We find the record supports the court’s findings, and its conclusion that the only plaintiffs in this case are those six specifically named is supported by the court’s findings. Appellants assert their own interpretation of the stipulation and the statements made by counsel belie the court’s findings. They do not make any persuasive argument that convinces us the court’s findings are clear error.20
D. Resolution 13-02
In their complaint Appellants made a number of allegations related to actions or inactions taken by the Appellee Tribal Council members in their official capacity. One of those allegations is that Resolution 13-02 is unconstitutional. In reaching its decision, the trial court found the Resolution did not violate the Constitution or the Tribe’s laws. Related to this issue, Appellants argue that Title 63 is likewise unconstitutional. The court found it was not. The court had jurisdiction over the claims related to the constitutionality of Resolution 13-02 and Title 63. We review the court’s decision regarding the constitutionality de novo.
The Constitution provides the Tribal Council “shall have the power” to enact ordinances governing future membership and the “loss of membership.” Const. art. VI, § 2. This constitutional provision can be amended by the membership, but under its plain meaning the Council has the exclusive authority to prescribe rules and regulations governing involuntary loss of membership. Const. art. II, § 4 (“The tribal council shall, by ordinance, prescribe the rules and regulations governing the involuntary loss of membership.”). Any ordinance adopted governing the loss of membership, however, must conform to the Constitution. Const. art. II, § 2.
The Council exercised its duty in adopting Title 63. NTC 63.04.001(B) provides in pertinent part:
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“judicial role”). Thus, Appellants argue, Resolution 13-02, which initiates disenrollment proceedings against the Appellants, is unconstitutional and violates Title 63. We disagree.
Although NTC 63.04.001 provides a procedure for a tribal member to request the disenrollment of another tribal member, it cannot be read, as Appellants contend, to prohibit the Tribal Council itself from initiating disenrollment proceedings.21 As the court pointed out, it would be absurd to read that language as somehow prohibiting the Tribal Council from initiating disenrollment proceedings where it obtains evidence a member is erroneously enrolled – particularly given the Tribal Council’s broad constitutional authority to determine membership and loss of membership.22 See NTC 10.01.020 (“The Tribal Court shall interpret tribal ordinances resolutions, regulations, and policies in order that the substantive intent of the Tribal Council is ensured. The court shall not indulge in highly technical or legalistic interpretations of tribal ordinances, regulations, and policies when such interpretation would defeat the overall legislative goals of the Tribal Council.”).
The trial court also found “[t]he substantive intent of 63.04.001(B) is to allow the Tribal Council to make determinations about enrollment and disenrollment and to prevent arbitrary disenrollment proceedings initiated by Enrollment Department staff and individual tribal members who are not elected to carry out the functions of tribal officers.” Order at 12. We agree. We do not interpret the language in NTC 63.04.001 as the Tribal Council’s intent to limit its own broad authority.
It is also absurd to read this language as giving the Council the authority to determine whether a member should be disenrolled but limiting its authority to initiate disenrollment proceedings. Under Appellants’ reasoning, even if the Tribal Council has information that a member was improperly enrolled, the Council must turn a blind eye. The law and the Constitution have no such mandate. See Suquamish Tribe v. Lah-Huh-Bate-Soot, 4 NICS App. 32, 56 (Suquamish Tribal Ct. App. 1995) (strained or absurd consequences from a reading of a statute are avoided) (citations omitted). Resolution 13-02 does not violate Title 63 or the Constitution.
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Appellants also appear to argue the Resolution violates their right to due process under the Indian Civil Rights Act (25 U.S.C. § 1308), incorporated in the Constitution. V. art. IX.23 The Appellants’ due process argument rests on Appellants’ assertion the Tribal Council has not provided them with evidence “as to how or why” they are not entitled to membership. In the related case, Roberts v. Kelly, 2013 CI-Cl-003, the Tribal Court found all those who have been sent notices of disenrollment received detailed ancestral histories dating back generations. Oder Granting Defendant’s Motion to Dismiss, at 9 (Roberts v. Kelly, CI-Cl-003, October 17. 2013). Appellants dispute that finding. This is a factual matter the trial court did not address in this case, nor will we, because it was not pled in Appellants’ second amended complaint.
E. Title 63
Article II, § 2 of the Nooksack Constitution limits the reasons for disenrollment to a “failure to meet” the constitutional requirements for enrollment. NTC 63.04.001(B)(1)(A) provides a member shall be disenrolled upon discovery the member was erroneously enrolled because the member did not “submit adequate documentation.” The error may have been the result of “fraudulent submission, mistakes in blood degree computations, or inadequate research.” Id. A person is only constitutionally entitled to enrollment if the person can show he or she meets the criteria listed in Const. art. II, § 1.24 NTC 63.02.001(D) requires a person applying for enrollment produce documentation that he or she meets one of the listed criteria for enrollment. Any person can assert they are entitled to enrollment, but without adequate documentary evidence that shows he or she meets one of the criteria the person’s mere assertion alone is insufficient. NTC 63.04.001(B)(1)(A) does not add another unconstitutional reason for disenrollment. It provides a means for the Tribal Council to enforce the constitutional requirements for enrollment, asks no more than what a person is required to submit when applying for enrollment (adequate documentation), and ensures the Tribal Council fulfills its authority to determine “loss of membership.”
12 NICS App. 1, LOMELI v. KELLY (January 2014) p. 21
F. Resolution 13-38/Constitutional Amendment
Appellants argue that Resolution 13-38 is likewise unconstitutional.25 We review this claim de novo as well.
Appellants claim the Resolution specifically targeted them in violation of the Indian Civil Rights Act (ICRA) and the Nooksack Constitution's guarantee members will be “accorded equal rights pursuant to tribal law.” Const. art. IX. Appellants’ contention is meritless and borders on frivolous.
First, this issue is a challenge to the Council’s request for an election to amend the Constitution. See Const. art. X (Constitution may be amended by a majority vote of the membership in an election called for that purpose by the Secretary of the Interior). There is no constitutional requirement the Tribal Council give a reason for its request. The Council’s request was a legislative governmental function. There is no legal basis to support an assertion Appellee Council members exceeded their authority in requesting the election.
Second, Appellants have no cognizable cause of action. The trial court correctly ruled the Secretarial Election was conducted by the federal government and is a purely political event. Order at 17. In addition, as the trial court found, “this was a federal election.” Id. It found the Tribal Court the wrong venue in which to challenge the election and Appellants’ remedy was to challenge it in federal court. Id. Indeed, Appellants requested the federal district court enjoin the Secretary from conducting the election. That request was denied. Germain v. Department of Interior, C-13-945 (W.D. Wash., June 19, 2013).
Third, Appellants allege their right to equal protection guarantees under the Constitution and ICRA were violated because they were impermissibly “targeted” based on their race or national origin, and the purpose of the amendment was to ensure that if they are disenrolled they will remain disenrolled. “A tribe’s right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community,” Santa Clara Pueblo, 436 U.S. at 72, n.32, and one of the few remaining parts of tribal sovereignty that lie in the sole discretion of the tribal government. Patterson v. Council of the Seneca Nation, 157 N.E. 734 (1927); Morton v. Mancari, 417 U.S. 535 (1974); Aguayo et. al. v. BIA, 55 IBIA
12 NICS App. 1, LOMELI v. KELLY (January 2014) p. 22
192, 2013 WL 8436503 (2013). The Constitution and ICRA do not prohibit the Tribe from exercising its discretion to determine its membership or from adopting specific criteria for membership, even if the criteria are based on ancestry, blood quantum, race, or ties to the community. As the federal District Court found “neither ICRA or any other law prohibits a tribe from using race or ancestry in defining its membership.” Germain v. Department of Interior, supra, at 10. A “bare constitutional amendment redefining membership is not unlawful.” Id. at 11.
G. Tuesday Meetings/Special Meeting
12 NICS App. 1, LOMELI v. KELLY (January 2014) p. 23
membership prior to the meetings. Since the disenrollment issues arose, the First Tuesday meetings have been cancelled for public safety reasons, with business conducted through the Special Meetings clause under Article II, Section 3 of the Bylaws.” Order at 18.
The Tribal Council has the sovereign authority to determine its meeting procedures. Const. Art. VI, § 1.J. The adherence to Bylaws is a political question not subject to judicial review.26 See Miami Nation of Indians v. U.S. Dept. of Interior, 255 F.3d 342, 347 (7th Cir. 2001) (citations omitted) (there are a class of questions that either are not amenable to judicial resolution because the relevant considerations are beyond the courts' capacity to gather and weigh, or have been committed by the Constitution to the exclusive, unreviewable discretion of the executive and/or legislative branches of the federal government). Because the Tribal Council has the constitutional authority to determine its meeting procedures, we agree with the Tribal Court that “[c]anceling meetings for holidays, public safety reasons or other reasons of public concern do not give rise to the loss of sovereign immunity …”. Order at 18-19. This too is a function of the Tribal government. The Tribal Court did not have subject matter jurisdiction to address this issue because neither the Tribe nor the Council waived its immunity.
Article 2, § 5 requires a Special Meeting be held upon the written request of two council members. The Tribal Court found because those members requesting the meeting are not plaintiffs, Appellants cannot show the requisite standing to litigate the issue. Citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 115 S.Ct. 2431 (1995), the court ruled “[t]he Plaintiffs general interest in the proceedings under the Special Meetings section of the Bylaws is not a ‘concrete and particularized’ legally protected interest. Rather, it is an assertion of a ‘right to a particular kind of Governmental conduct.’” We agree.
Standing is a legal issue subject to de novo review. Bruce v. United States, 759 F.2d 755, 758 (9th Cir.1985). Standing requires that a plaintiff allege a concrete injury, that there is a causal connection between the injury and the conduct complained of, and that the injury will likely be redressed by a favorable decision. United States v. Hays, 515 U.S. 737, 742–43, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995); Lujan v. Defenders of Wildlife, 504 U.S. 555 at 560–61.27 Appellants do not assert any concrete injury by the Council’s failure to hold the Special
12 NICS App. 1, LOMELI v. KELLY (January 2014) p. 24
Meeting.28 Even if the court had jurisdiction to address this allegation, Appellants have no standing to litigate this issue.
Appellants also argue the court improperly struck a declaration submitted by Appellants and improperly denied Appellants’ request to strike a declaration submitted by Appellees. We review the trial court’s evidentiary rulings under the abuse of discretion standard. See General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (holding that “abuse of discretion is the proper standard of review of a district court's evidentiary rulings”); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.2002) (the trial court's exclusion of evidence is reviewed for abuse of discretion and the district court's ruling must be affirmed unless the “evidentiary ruling was manifestly erroneous and prejudicial”); Medrano v. City of Los Angeles, 973 F.2d 1499, 1507 (9th Cir.1992) (holding that the district court's evidentiary rulings did not constitute abuse of discretion because “[a]lthough reasonable minds could have reached different conclusions, the district court's rulings [were] not manifestly erroneous”).
The court struck the declaration submitted by Appellants that asserts Appellant Lomeli’s enrollment records were “sanitized” regarding the membership of her aunt, on the grounds it violated Appellees’ attorney-client privilege. The court denied Appellants’ motion to strike the declaration of one of the Tribe’s attorneys, submitted by Appellees, regarding Appellees’ intent related to the March 20th Stipulation on the issue of who the plaintiffs are in this case. We find the trial court’s rulings were not an abuse of discretion. Moreover, even if the declaration submitted by Appellants was admitted and the declaration submitted by Appellees was excluded, it would not change the outcome of the case.
Appellants also assert the court failed to address other claims they alleged in their complaint, most of which raise allegations surrounding the conduct of Tribal Council meetings.29 Opening Brief of Appellants, at 67-70. We have reviewed Appellants’ arguments and find those
12 NICS App. 1, LOMELI v. KELLY (January 2014) p. 25
are either political questions not subject to judicial review; directly related to the functions of the tribal government that the court did not have jurisdiction over absent a waiver of immunity; do not violate the Tribe’s Constitution, laws or Bylaws; or are moot given our decision.30 The resolution of those issues will not change our decision, so we decline to address whether the court erred in failing to rule on those allegations.
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
During the pendency of the case, the following trial court orders were entered:
1. 03/28/13 – Order from Scheduling Hearing
3. 04/23/13 – Decisions and Order Denying Defendants Motion to Strike In Part and Granting In Part
4. 05/07/13 – Order Setting Date for Responding to Motion for Leave to Amend
5. 05/20/13 – Order Denying Motion for Preliminary Injunction
6. 05/20/13 – Order Granting Leave to Amend Complaint
8. 05/29/13 – Order for Briefing on Defendants’ Motion to Dismiss
9. 05/29/13 – Amended Order for Briefing on Defendants’ Motion to Dismiss
11. 06/03/13 – Decision and Order Denying Plaintiffs Emergency motion for Stay Pending Appeal
12. 06/07/13 – Order on Security for Hearings
13. 06/17/13 – Order Modifying Order on Security
15. 06/18/13 – Second Order Granting Leave to Amend Complaint
17. 06/24/13 – Order on Hearing Attendees for June 25, 2013
This Court has also entered a number of orders:
1. 05/20/13 - Order Denying Motion for Preliminary Injunction
2. 06/18/13 - Order Denying Permission for Interlocutory Appeal
3. 08/14/13 - Order Denying Motion to Disqualify Chief Judge Eric Nielsen
4. 08/14/13 - Order Accepting Appellate Review and Staying Proceedings
5. 08/20/13 - Order on Motion For Clarification or Relief From Stay of Proceedings
6. 08/27/13 - Order Extending Stay
7. 09/11/13 - Case Management and Scheduling Order
8. 10/02/13 - Order Accepting Appeal of September 27, 2013 Order
Wilson v. A.H. Belo Corp., 87 F.3d 393, 396 (9th Cir.1996).
United States v. James, 980 F.2d 1314, 1319 (9th Cir.1992).
Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir.2011).
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
Appellants cite Verizon Maryland, Inc. v. Public Serv. Comm'n of Maryland, 535 U.S. 635, 122 S.Ct. 1753 (2002) and its progeny for this proposition.
One rationale in support of conferring immunity on a tribal official is that the official must be able to exercise his or her duties free from intimidation, harassment and the threat of lawsuits for performing those acts of the tribal government that are within the scope of the official’s duties. Satiacum v. Sterud, 10 ILR 6013, 6016 (Puy. Tr. Ct., Apr. 23, 1982). “The Nooksack Tribal Council and its officers need to be able to enact ordinances and conduct business without constantly having to defend themselves against suit.” Cline, supra, at 7.
See, Anderson v. Yungkau, 329 U.S. 482, 485, 67 S.Ct. 428 (1947) (shall is the language of a command).
By way of example, the Tribe’s governmental functions include providing police protection (Const. art. VI, § 2.B), regulating activities within its territory (Const. art. VI, § 2.C), imposing, collecting and expending revenue (Const. art. VI, § 1.G and 1.K), establishing a court system (Const. art. VI, § 2.A), and adopting and enforcing laws for the health, safety and welfare of its members (Const. art. VI, § 1.H).
“Officer” means a person “holding public office” and “authorized” by the government “to exercise some specific function.” Black’s Law Dictionary, 7th Edition (1999) at 1113. A Tribal Council member is a Tribal “officer.”
Judge Pouley: OK, so let’s say Ex parte Young doesn’t apply. Is there any law that applies at Nooksack that would allow the citizens to prevent the, a Council from going rogue, and if the Constitution defines the scope of their authority and they start doing things that are beyond what the Constitution allows them to do, what remedy does the citizenry have to stop that from happening? Because whether it’s, let’s for at least a minute not talk about whether it’s an enrollment issue or some other, just in general, the Constitution says this is what the Council can do, we have a case where the Council is doing something obviously outside the scope of that, what, how does the citizenry stop that, or can they?
Counsel: A suit against an individual Tribal official who is acting outside the scope of his authority as defined by Nooksack law can go forward unless it’s a claim for money damages. A prospective case can go forward. Now that’s not because Ex parte Young so provides, it’s because this Court has decided that in the Cline case.
We do not decide the full parameters of the Tribal Court’s jurisdiction under Const. art. 2, § 2.A.3. That will need to be decided on a case-by-case basis. In Campion v. Swanasel, this Court held the Tribal Court had jurisdiction under Article 2, § 2.A.3 where suit was brought against the Nooksack Tribal Council alleging the 1996 amendments to the Election Ordinance were unconstitutional and denied the plaintiffs their voting rights.
Appellees assert there are five named Plaintiff/Appellants, whereas Appellants and the trial court judge consistently refer to six named Plaintiff/Appellants. The original complaint named as Plaintiffs four adult members of the Nooksack Tribe (Sonia Lomeli, Terry St. Germain, Norma Aldredge, and RaeAnna Rabang). The First Amended Complaint and the Second Amended Complaint name as Plaintiffs these four adult Tribal members, plus “Robley Carr, individually on behalf of his minor son, Lee Carr.” Presumably, the discrepancy regarding five or six Plaintiffs is the result of an apparent drafting error in which counsel for Plaintiffs appear to have omitted the word “and” in the clause “individually on behalf of his minor son” following the name of Robley Carr. If Mr. Carr is named only in a representative capacity, then there would only be five named Plaintiff/Appellants. If however, Mr. Carr is named individually and on behalf of his minor son, there would be six named Plaintiff/Appellants. (Plaintiffs also sought leave to file a Third Amended Complaint that would have added Francine Adams as an additional named adult Tribal member Plaintiff, but the Third Amended Complaint was ultimately withdrawn by Plaintiffs prior to any ruling on the relevant motion to amend.)
Appellants admit that this issue is “largely moot” because the other members subject to disenrollment filed their own suit in Roberts v. Kelly, 2013 CI-Cl-003. Reply Brief of Appellants at 34, n35.
“The protection guaranteed to persons by Title II of the Civil Rights Act of 1968 (82 Stat. 77) against actions of the Nooksack Indian Tribe in the exercise of its powers of self-government shall apply to members of the Nooksack Indian Tribe.” Const. art. IX.
Appellees contend the Special Meeting has been held. Appellants dispute that contention. The record in this case is silent on that issue. The court, however, in the related case found the meeting has occurred. Roberts v. Kelly, 2013 CI-CL-003 (Order Granting Defendant’s Motion to Dismiss at 13).
We note a number of arguments have no bearing on the issues the court had jurisdiction to resolve – whether the Appellee Tribal officers’ initiation of proceedings to disenroll Appellees violates provisions of the Nooksack Constitution or the Tribe’s laws, and whether Title 63 is unconstitutional. We urge counsel for the Appellants to heed the admonition that “Losers in a trial can go hunting for relief on appeal with a rifle or a shotgun,” and “[t]he rifle is better,” because“the shotgun approach may hit the target with something but it runs the risk of obscuring significant issues by dilution.” Gagan v. American Cablevision, Inc., 77 F.3d 951, 955 (7th Cir. 1996) (citation omitted).