6 NICS App. 205, WILLIAMS ET AL. v. MADISON (November 2004)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

Herman Williams, Jr., Donald Hatch, Jr., Marie M. Zackuse, Leslie Parks, Melvin Sheldon, Appellant/Defendants,

v.

Michelle R. Madison, Appellee/Plaintiff.

NO. TUL CV-ET-2003-0160 (November 15, 2004)

SYLLABUS*

Trial court denied motion by members of the Tribe’s Board of Directors to dismiss former employee’s complaint for wrongful termination based on sovereign immunity. Court of Appeals holds (1) Tribal law establishes an absolute bar to suit against tribal officers when acting in their official capacities and (2) members of the Board of Directors named in this suit were acting within their official capacity when they voted to eliminate plaintiff’s position with the Tribe. Trial court order reversed and case remanded with instructions to dismiss the complaint.

Before:            Jane Smith, Chief Justice; John Sledd, Justice; Daniel A. Raas, Justice.

Appearances:  Timothy A. Brewer, Office of Reservation Attorney, for Appellants/Defendants. Claudia Newman, Attorney, for Appellee/Plaintiff.

OPINION

Raas, J.:

Appellants appeal from the Trial Court’s denial of its motion to dismiss this action on the grounds of sovereign immunity. We reverse and remand for the dismissal of the Complaint.

BACKGROUND

Acting at the request of the Tulalip General Council, the Tulalip Board of Directors directed its Reservation Attorney to investigate allegations that the former General Manager of the Tribe had created at least ten positions that were not authorized under the budget plan

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adopted by the Board, and had filled those jobs in violation of the personnel ordinance of the Tribe. The investigation showed that several positions were created that were not in the approved budget but that the occupants of only two of those jobs were hired in violation of the personnel ordinance.

The Board met to consider its options. All seven members of the Board were present, the requisite staff were in attendance, and minutes of the meeting were taken. In the course of its deliberations, the Board passed Resolution 03-213 by a vote of four to zero, with two abstentions and the Chairman not voting. This Resolution directed the current General Manager to eliminate all the positions unlawfully created and to terminate the employment of the individuals hired for these jobs, or to return them to their previous positions. These employees were not required to repay the Tribe any of the salary or benefits they had received while in these positions. Persons not employed by the Tribe prior to their hiring into one of the unlawful positions were terminated from Tribal employment. No individuals are named in Resolution 03-213, although a list of positions was apparently attached to the Resolution. The list was not included in the excerpts of record.

Plaintiff Michelle Madison alleges she was one of the people whose positions were terminated. She argues that she was not hired in violation of the personnel ordinance. She avers in her Amended Complaint that she was fired for her whistle blowing activities which implicated relatives of certain Board members and other politically active Tribal members. Her Amended Complaint recites a series of actions and meetings prior to the passage of Resolution 03-213.

PROCEDURAL HISTORY

Ms. Madison initially filed her Complaint against the Board and its members in their official capacities. She later filed an Amended Complaint naming the four (4) Board members who voted in favor of Resolution 03-213 and the General Manager in their individual capacities only. The Defendants moved to dismiss on the grounds that the actions of these Board members and the General Manager were taken in the course of their official duties and that therefore the Tribe’s sovereign immunity barred suit against them, in either their official or their individual capacities. The Trial Court dismissed the claims against the General Manager, but refused to dismiss the claims against the Board members. The Board members appealed; Ms. Madison did not.

STANDARD OF REVIEW

This Court reviews the case and the record de novo, as it sits in the same position as the Trial Court. Where a case comes to us when the Trial Judge had no occasion to evaluate the credibility of witnesses, then we do not give the Trial Court’s decision any weight, since we can make an independent evaluation of the record as did the Trial Judge.

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The factual allegations in the Complaint are accepted as true, as are the factual allegations of the Defendants not in conflict with the Plaintiff’s factual statements, although this Court is not bound by the parties’ or the Trial Court’s conclusions drawn from those facts. This Court also may consider the official records of the Tribe, such as Resolution 03-213, which the parties have placed in the record or referenced in their submissions.

DISCUSSION

Indian tribes have immunity from suit due to their sovereign status in American law. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). This status stems from their absolute sovereignty that existed prior to European contact. United States v. Oregon, 657 F.2d 1009 (1982).1

The Tulalip Tribe has acted to codify the immunity of its elected officials, employees and agents in TTO 49 § 1.2.2:

The Tulalip Tribes, its Board of Directors, its agencies, enterprises, chartered organizations, corporations, or entities of any kind, and its officers, employees, agents, contractors, and attorneys, in the performance of their duties, shall be immune from suit; except where the immunity of the Tribes or its officers and employees is expressly, specifically and unequivocally waived by and in a Tulalip tribal or federal statute, a duly executed contract approved by the Tulalip Board of Directors, or a duly enacted ordinance or resolution of the Tulalip Board of Directors.

The threshold question in a matter where the Defendants assert sovereign immunity from suit is whether the named Defendants were within the group of individuals or entities protected by TTO 49 § 1.2.2. Here the four remaining Defendants are members of the Board of Directors, and, as such, are explicitly referenced in the ordinance.

The ordinance is an absolute bar to suit against tribal officers when acting in their official capacities. Apryazhka v. James, Tul. Ct. App. Cause No. TUL-CV-GC-2003-166 (2004). Thus, the next issue is whether the Defendants were acting in the performance of their duties when they enacted Resolution 03-213. Their actions took place at a duly called Board meeting, at which all Board members were present (and by their presence waived any issue of notice), at which minutes were recorded, and at which the official action of enacting Resolution 03-213 was taken. The Board meeting was the result of a General Council request, and followed an investigation ordered by the Board. It is hard to imagine a clearer case of an action taken in the performance of official duties.

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But the Plaintiff alleges that passage of Resolution 03-213 was a sham to carry out a campaign to fire her for her whistle blowing activities involving irregularities in the operation of the Tulalip Health Clinic. While she recognizes that sovereign immunity would protect Board members acting in the normal Board meeting situation, she claims that when otherwise proper actions are part of a course of action which violates her constitutional rights as guaranteed by the Tulalip Constitution, the actors are not protected by sovereign immunity. She alleges that the Defendants participated in a series of meetings and actions regarding the irregularities in the Health Clinic that she made public, that they subsequently glossed over the problems she exposed, and she concludes she was fired because she embarrassed the Board and the Tribe with her revelations. Taken together, Ms. Madison concludes that these allegations show that she was fired in violation of the Tulalip Constitution and Bylaws, and that sovereign immunity is not a bar to her suit.

While such a cause of action might be recognized in the appropriate case, a conclusion upon which we express no opinion here, the facts of this matter do not require a decision on this point. Plaintiff’s amended Complaint includes 20 paragraphs reciting facts regarding her whistle blowing and actions taken by some of the Defendants. However, her conclusion that her whistle blowing activities were the cause of the Board’s passage of Resolution 03-213 is not the only conclusion that can be drawn from all of the facts before us; it is not even the most likely conclusion.2

The Resolution was a response to the creation of positions that were neither approved by the Board nor funded by the Board. If its sole purpose were to punish the Plaintiff for her activities, it casts a much wider net than necessary. The Board considered the direction given it by Tulalip General Council, the results of an investigation by its attorneys, and then resolved to correct an institutional problem within the tribal structure: unfunded positions that would negatively affect the Tribal budget. Such action is entirely within the official duties of the Board, and the Tulalip Tribe has immunized Board members acting in this manner from having to defend their actions in court. TTO 49 § 1.2.2.

Plaintiff also fails to identify a provision of the Tulalip Constitution that was violated by the Board’s conduct of which she complains. Initially, she offers the argument that the Constitution delegates the hiring and firing power to the Tulalip Indian Reorganization Act Section 17 (25 U.S.C. §477) Corporation, and that this delegation removes the power from the Board. This ignores the power placed in the Board to set budgets and procedures for employees. There is no divestiture of the Board’s powers in the delegation to the Section 17 corporation, nor is the grant of authority to the Section 17 Corporation exclusive. The Board clearly has the authority to enact Resolution 03-213.

Secondly, she argues that Resolution 03-213 violates her Tulalip Constitutional right to

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“equal participation in the reservation economy.” There is no Tulalip law interpreting the meaning of this clause. It seems analogous to equal protection clauses found in the Federal and State Constitutions. Assuming such an analogy, without deciding that the equal protection jurisprudence developed under Federal and State Constitutions has any place in Tulalip law, Plaintiff would need to allege, at least, that she was singled out for her whistle blowing activities, and therefore denied her right to participate equally in the reservation economy. We need not explore all of the possible variations on pleading or proof that might avoid the Board’s immunity in such a case, because there is no allegation that all of the occupants of the positions eliminate by Resolution 03-213 were whistle blowers or members of a class that was denied equal participation in the Reservation economy. Plaintiff was not singled out for her activities by the Board.

CONCLUSION

Members of the Tulalip Board of Directors, acting in their capacity as Board members, are immune from a suit that attempts to question their official actions by naming them in their individual rather than official capacities.

The Trial Court is reversed and the case is remanded with instructions to dismiss the Complaint with prejudice.


*

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.


1

Tribal sovereign immunity has been recognized by the Washington Courts. North Sea Products Ltd. v. Clipper Seafoods Co., 92 Wn. 236, 595 P.2d 938 (1979).


2

Plaintiff does not dispute nor discuss the Board’s conclusion that the position she occupied was created in violation of the budget Resolution.