Chapter 4.12
TRIBAL TORT CLAIMS ACT
Sections:
4.12.030 Limited waiver of Tribal sovereign immunity.
4.12.040 Limitations on awards.
4.12.050 Actions outside the scope of employment or authority.
4.12.070 Limitations on waiver of sovereign immunity.
4.12.090 Extinguishment and preservation of certain claims, actions and defenses.
4.12.010 Purpose.
The Tribal Council declares that the purpose of this Act is to establish a limited waiver of the Tribe’s sovereign immunity, and to impose strict procedures under which a person may file an action or claim for monetary damages against the Tribe, its agents, employees, and officers. This Act is not intended to be a general waiver of the Tribe’s immunity, and it shall be narrowly and strictly construed. The Tribe’s limited waiver of sovereign immunity is conditioned upon the claimant’s full and complete compliance with all of the procedures contained in this Act.
The Tribal Council further declares that the provisions contained in this Act shall not limit or alter in any way its authority to enter into contracts containing a clear and unequivocal waiver of the Tribe’s sovereign immunity, including provisions for the enforcement thereof. Disputes alleging a breach of contract shall continue to be determined pursuant to the principles of contract law. [Res. 191102A (11/19/02); Ord. 211002A (10/21/02); prior code § 4.02A.010]
4.12.020 Definitions.
(a) “Agent” means any person, whether paid or unpaid, when acting during the course of and within the scope of the actual authority expressly granted to them by the Tribe.
(b) “Award” means money damages which the Tribal Court determines are payable to compensate for any injury recognized under this Act.
(c) “Dangerous condition” means a physical aspect of a facility or the use thereof which constitutes an unreasonable risk to human health or safety, which is known to exist or which in the exercise of reasonable care should have been known to exist, and which condition is proximately caused by the negligent acts or omissions of the Tribe in constructing or maintaining such facility. For the purposes of this Act, a dangerous condition should have been known to exist if it is established that the condition had existed for such a period of time and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered.
A dangerous condition shall not exist solely because the design of any facility is inadequate nor due to the mere existence of wind, water, ice or temperature by itself, or by the mere existence of a natural physical condition. Nothing in this definition shall preclude an accumulation of water, snow, or ice from being found to constitute a dangerous condition when the Tribe fails to use existing means available to it for the removal of such accumulation and when the Tribe had notice of such accumulation and reasonable time to act.
(d) “Employee” means a part- or full-time employee or an agent of the Tribe, when acting during the course of and within the scope of their employment. This term includes officers and directors of the Tribe when they are acting to fulfill their duties to the Tribe. This does not include agents or representatives of the United States or the state of Washington or any of their political subdivisions.
(e) “Injury” means death, harm to a person, or damage to or loss of property of whatever kind, which, if caused by the negligent or wrongful act or omission of a private person, would be a tort under Tribal law, applicable federal law, or, to the extent consistent with Tribal law, laws of the state of Washington, and which is expressly covered by the Tribe’s liability insurance without regard to any deductible amount contained in the insurance policy.
(f) “Officer” means an officer, whether elected or appointed, whether paid or unpaid, when acting during the course of and within the scope of their actual authority expressly granted by the Tribe.
(g) “Tribal Law Office” shall mean the legal department of the Tribe by the same name.
(h) “Tribal Council” means the governing body of the Puyallup Tribe of Indians, duly elected by the Tribal membership in accordance with the Tribal Constitution and Bylaws.
(i) “Tribal Court” means the Puyallup Tribal Court system, established by the Tribal Council pursuant to Article VI, Section 1(k), of the Constitution and Bylaws of the Puyallup Tribe of Indians.
(j) “Tribal law” means the Constitution of the Puyallup Tribe, initiatives or referendums duly adopted by members of the Tribe in accordance with the Tribe’s Constitution, and ordinances and other legislative enactments adopted by the Tribal Council.
(k) “Tribe” means the Puyallup Tribe of Indians, including but not limited to any branch, office, department, agency, commission, utility, authority, instrumentality, enterprise, corporation (whether chartered under Tribal, federal, or state law), or other entity of the Tribe. [Ord. 211002A (10/21/02); prior code § 4.02A.020]
4.12.030 Limited waiver of Tribal sovereign immunity.
(a) The Tribe’s immunity from suit shall remain in full force and effect except to the extent that it is waived by this Act. Members of the Tribal Council shall remain immune from suit for actions taken during the course of and within the scope of their duties as members of the Tribal Council, and nothing contained in this Act shall be construed otherwise.
(b) The Tribe may be sued solely in the Tribal Court. Nothing contained in this Act shall be construed as a waiver of the Tribe’s immunity from suit in any state or federal court.
(c) The sovereign immunity of the Tribe is waived in the following instances:
(1) Injuries proximately caused by the negligent acts or omissions of the Tribe, its agents, employees, or officers;
(2) Injuries proximately caused by the condition of any facility of the Tribe, provided the claimant establishes that the facility was in a dangerous condition. [Ord. 211002A (10/21/02); prior code § 4.02A.030]
4.12.040 Limitations on awards.
(a) No rule of law imposing absolute or strict liability against the Tribe, its agents, employees, or officers shall be applied in any action or claim for injuries under this Act.
(b) No award or other judgment imposing punitive or exemplary damages, or attorney fees, shall be applied against the Tribe, its agents, employees, or officers in any action or claim for injuries under this Act.
(c) No award for loss of consortium shall be applied against the Tribe, its agents, employees, or officers in any action or claim for injuries under this Act.
(d) No award for pain and suffering or mental anguish shall be applied against the Tribe, its agents, employees or officers, except where such award does not exceed 50 percent of the actual damages sustained, and provided that any such award does not exceed the limits of the liability insurance policy of the Tribe applicable to the underlying action or claim without regard to any deductible amount contained in the insurance policy. [Ord. 211002A (10/21/02); prior code § 4.02A.040]
4.12.050 Actions outside the scope of employment or authority.
(a) This Act does not immunize agents, employees, or officers of the Tribe from individual liability for the full measure of the recovery applicable to a claimant, if it is established that their conduct exceeded the scope of employment or authority. Claims for individual liability arising out of conduct which is found to exceed the scope of employment or authority and which arise within the exterior boundaries of the Puyallup Indian Reservation shall be heard only in the Tribal Court.
(b) If the Tribal Court determines that the injuries claimed from an act or omission of an agent, employee, or officer were willful and wanton or otherwise outside the scope of employment or authority, the Tribe may request and the Court may order the individual defendant(s) named in the claim to reimburse the Tribe for costs and attorney fees which may have been incurred in the defense of the defendant(s). [Ord. 211002A (10/21/02); prior code § 4.02A.050]
4.12.060 Procedure for giving notice of claims and filing actions – Written notice of claim required.
(a) No action may be brought in Tribal Court under this Act unless the person who claims to have suffered an injury first sends written notice of the claim to the Secretary of the Tribal Council and the Director of the Tribal Law Office. The notice shall be sent by certified mail, return receipt requested. If the action or claim alleges the injury was caused by the act or omission of an agent, employee, or officer of the Tribe, the written notice required by this section shall also be given to the agent, employee, or officer.
(b) The notice required by subsection (a) of this section shall contain the following:
(1) The name, current address, and telephone number of the claimant, and the name, current address, and telephone number of the claimant’s attorney, if any; and
(2) A concise statement describing the conduct, circumstances or other facts which brought about the injury. The statement must include the date and time when the injury occurred, the place where the injury occurred, the names of any Tribal agent, employee, or officer involved, or who have knowledge of the facts giving rise to the injury, and the names, addresses and phone numbers, if known, of any other persons involved or who have knowledge of the facts; and
(3) A concise statement of the nature and the extent of the injury claimed to have been suffered, including submission of relevant medical reports; and
(4) A statement of the amount of damages that is being requested.
(c) The notice required by subsection (a) of this section shall be valid only if:
(1) It is given to the required parties no later than 180 days after the act or omission occurred giving rise to the injury; and
(2) It contains all of the information required in subsection (b) of this section.
(d) The notice shall be deemed given and effective as of the date of the last postmark of any written notice required by subsection (a) of this section.
(e) No action may be brought in Tribal Court under this Act until the expiration of 90 days after the date of the last notice required by subsection (a) of this section is given.
(f) No action may be brought in Tribal Court under this Act for damages in excess of the amount set forth in the written notice of claim required by subsection (a) of this section. Damages sought in excess of the amount stated in the written notice of claim may be awarded by the Tribal Court only if the claimant proves the increased amount is based upon evidence not reasonably discoverable at the time the notice was given, or upon proof of intervening facts relating to the amount of the claim.
(g) Any person filing an action in Tribal Court for money damages under this Act shall cause a copy of the complaint and summons to be served upon the Secretary of the Tribal Council, and the Director of the Tribal Law Office. If the action alleges a claim involving an act or omission of a Tribal commission, board, authority, corporation or enterprise, service of the summons and complaint shall also be given to the chairperson or chief executive officer of such commission, board, authority, corporation or enterprise.
(h) A defendant in any action brought pursuant to this Act, whether for monetary damages or prospective declaratory, mandamus, injunctive or other extraordinary relief, shall have not less than 60 days after receipt of the complaint and summons, and such other time as the Tribal Court may allow, to file an answer or other responsive pleading or motion.
(i) The time periods for filing a notice of claim for monetary damages and for commencing an action in Tribal Court for monetary damages under this Act do not apply in a suit for prospective declaratory, mandamus, injunctive or other extraordinary relief against the Tribe or its agents, employees, or officers. [Res. 091109E (11/09/09); Ord. 211002A (10/21/02); prior code § 4.02A.060]
4.12.070 Limitations on waiver of sovereign immunity.
(a) No judgment, order or award pertaining to any claim for monetary damages permitted by this Act shall be for more than the limits of a valid and collectible liability insurance policy or policies carried by the Tribe covering each such claim, or otherwise established pursuant to any self-insured liability and/or other Tribal government claims program, approved and adopted pursuant to Tribal law. To be valid and collectible, the liability insurance policy or policies must have been in effect at the time the alleged injury occurred.
(b) Notwithstanding any other provision of this Act, there shall be no waiver of sovereign immunity as to any claim of injury which is defended by the United States under the Indian Self-Determination and Education Assistance Act, the Federal Tort Claims Act, or any other federal law. Upon certification by the Tribal Law Office that defense of any claim of injury has been tendered to the United States, any action or proceeding on such claim shall be stayed by order of the Tribal Court without bond. The action or proceeding in Tribal Court shall be dismissed, after notice to the parties and opportunity for a hearing, upon receipt of notice satisfactory to the Tribal Court that the United States has assumed defense of the claim of injury. The stay shall be dissolved and an order directing further proceedings in the action or proceeding on the claim of injury shall be entered by the Tribal Court, after notice and hearing thereon, upon receipt of notice satisfactory to the Tribal Court that the United States has declined to assume defense of the claim of injury.
(c) Notwithstanding any other provision of this Act, there shall be no exception to or waiver of sovereign immunity for any action or claim of monetary damages for any injury alleged to have resulted from any:
(1) Exercise or performance or the failure to exercise or perform a discretionary function or duty, or the implementation or failure to implement decisions by the Tribe or any agent, employee or officer of the Tribe whether or not the discretion was abused in any such matter; or
(2) Action taken or decision made in good faith and without gross negligence in carrying out the law; or
(3) Intentional tort, including but not limited to assault, battery, false imprisonment, malicious prosecution, abuse of process, libel, slander, defamation, misrepresentation, deceit, interference with contract rights, or interference with prospective economic advantage, except that this provision does not immunize the Tribe for any acts or omissions of investigative or law enforcement officers giving rise to claims for assault, battery, false arrest, false imprisonment or malicious prosecution; provided, that for purposes of this subsection “investigative or law enforcement officer” means any agent, employee or officer of the Tribe who is empowered to execute searches, to seize evidence, or to make arrests under Tribal law; or
(4) Legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature, such as but not limited to adopting or failing to adopt a law; or
(5) Issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval or other authorization; or
(6) Termination or reduction of benefits under a Tribal assistance program, if the Tribe or any agent, employee or officer of the Tribe is authorized by law, rule or regulation to determine whether or not such authorization or benefits should be issued, denied, suspended, or revoked; or
(7) Probation, parole, furlough or release from confinement of a prisoner or other detainee, or from the terms and conditions or the revocation thereof, except upon a showing of gross negligence; or
(8) Injury or damage caused by an escaping or escaped person or prisoner, a person resisting arrest, or by a prisoner to himself or herself, except upon a showing of gross negligence; or
(9) Decision made by the Tribe or any agent, employee or officer of the Tribe in the implementation of the Indian Child Welfare Act or other laws respecting the placement or supervision of minors or incompetent persons; or
(10) Claim based upon an act or omission of any agent, employee or officer of the Tribe exercising due care, in the execution of any statute, rule or regulation, whether or not such statute, rule or regulation is valid; or
(11) Claim based on the assessment or collection of any tax, or the detention of any goods or merchandise by any law enforcement officer.
The enumeration of the above immunities shall not be construed to waive any other immunities nor to assume any liabilities except as explicitly provided by this Act.
(d) The procedures and standards for giving notice of claims to the Tribe and commencing actions in Tribal Court under this Act are integral parts of the limited waiver of sovereign immunity provided by this Act, and shall be strictly and narrowly construed. A tort claim for monetary damages against the Tribe shall be forever barred unless written notice of the claim has been given pursuant to the requirements contained in this Act, and is commenced in Tribal Court in accordance with the provisions of this Act.
(e) Neither execution nor attachment shall issue against the Tribe in any claim for injury or proceedings initiated under this Act. [Ord. 211002A (10/21/02); prior code § 4.02A.070]
4.12.080 Trial of actions.
All actions commenced under this Act shall be tried by Judges of the Tribal Court without a jury. [Ord. 211002A (10/21/02); prior code § 4.02A.080]
4.12.090 Extinguishment and preservation of certain claims, actions and defenses.
(a) Any liability for monetary damages assumed by the Tribe for the acts or omissions of any agent, employee, or officer of the Tribe under this Act shall be the exclusive remedy available to any person who suffers an injury caused by an agent, employee or officer of the Tribe. Any claim for monetary damages assumed by the Tribe which otherwise would lie against an agent, employee or officer of the Tribe except for this Act is forever extinguished in favor of the remedy established and limited by this Act, whether or not the person in whose favor such remedy is created exercises the right to timely present written notice of any claim and commence an action for an injury in Tribal Court under this Act.
(b) This Act expressly preserves defenses of qualified or absolute immunity to actions for monetary damages against agents, employees or officers of the Tribe in their individual capacities. By way of illustration rather than limitation, the defenses preserved by this Act include absolute legislative and judicial immunities, qualified and absolute executive immunities, and their derivatives, which were recognized in the common law and elaborated by federal courts in cases alleging violations of federal law.
(c) A person who suffers an injury as a result of an act or omission of the Tribe or an agent, employee or officer acting on behalf of the Tribe may not use procedures other than those established in this Act to seek monetary damages, even if another remedy may be provided by another provision of Tribal law of general application. Notwithstanding the foregoing, this Act shall not bar any person from pursuing remedies in accordance with otherwise applicable law for claims relating to worker’s compensation, unemployment compensation, or employee disciplinary actions taken pursuant to applicable Tribal personnel policies and procedures.
(d) Volunteers duly authorized by the Tribe or an agent, employee or officer of the Tribe shall have the same immunities under this Act as agents, employees and officers of the Tribe. [Ord. 211002A (10/21/02); prior code § 4.02A.090]
4.12.100 Severability.
If any part of this Act is invalidated by the Tribal Court, all valid parts that are severable from the invalid part remain in effect. If a part of this Act is invalid in one or more of its applications, that part remains in effect in all valid applications that are severable from the invalid applications. [Ord. 211002A (10/21/02); prior code § 4.02A.100]
4.12.110 Applicable law.
Tribal law, applicable federal law, and, to the extent adopted by PTC 4.12.020(e), Washington law, shall apply and shall govern all claims and actions brought under this Act. [Ord. 211002A (10/21/02); prior code § 4.02A.110]
4.12.120 Miscellaneous.
(a) In construing this Act, the present tense includes the past and future tenses, and the future tense includes the present tense.
(b) When reference is made to any portion of this Act, the reference shall apply to all amendments made hereafter.
(c) All Tribal acts or other laws inconsistent with this Act are hereby repealed. To the extent that this Act provides other procedures or limitations than in any other Tribal law governing tort claims against the Tribe, its agents, employees, or officers, this Act shall govern.
(d) Section headings shall be used only for reference to format and not in construing this Act. [Ord. 211002A (10/21/02); prior code § 4.02A.120]