Dilliner v. Seneca–cayuga Tribe of Okla.

• Decision Date: 28 June 2011
• Docket Number: No. 109,085.,109,085.
• Citation: 258 P.3d 516,2011 OK 61,32 IER Cases 923
• Parties: Jerry R. DILLINER, Darlene Boyd, Gary Crow, Katie L. Fisher, Jacob Althouse, James Davis, Margaret Davis, Troy D. Dry, Lindy Flickinger, Cody A. Fisher, Shandrea D. Housman, Linda C. Judd, Roxann Kinsey, Elizabeth Lewis, Kirk Postoak, Jamie T. Quick, Janice Quick, Jeremy Quick, Sammy Quick, Albert Ty Slaughter, Caleb J. Slaughter, Sandra L. Slaughter, Dustin Spicer, Louis Spicer, Sherry L. Spicer, Gary Toland, Jordana N. Tyron, and Mark Woods, Appellants,v.SENECA–CAYUGA TRIBE of Oklahoma, Appellee.
• Court: Oklahoma Supreme Court

258 P.3d 516

32 IER Cases 923

2011 OK 61

Jerry R. DILLINER, Darlene Boyd, Gary Crow, Katie L. Fisher, Jacob Althouse, James Davis, Margaret Davis, Troy D. Dry, Lindy Flickinger, Cody A. Fisher, Shandrea D. Housman, Linda C. Judd, Roxann Kinsey, Elizabeth Lewis, Kirk Postoak, Jamie T. Quick, Janice Quick, Jeremy Quick, Sammy Quick, Albert Ty Slaughter, Caleb J. Slaughter, Sandra L. Slaughter, Dustin Spicer, Louis Spicer, Sherry L. Spicer, Gary Toland, Jordana N. Tyron, and Mark Woods, Appellants,

v.SENECA–CAYUGA TRIBE of Oklahoma, Appellee.

No. 109,085.

Supreme Court of Oklahoma.

June 28, 2011.

APPEAL FROM THE DISTRICT COURT OF OTTAWA COUNTY, OKLAHOMA. HON. ROBERT E. REAVIS, ASSOCIATE DISTRICT JUDGE¶ 0 Plaintiffs sued Seneca–Cayuga Tribe of Oklahoma for breach of employment contracts. The contracts contained a limited waiver of sovereign immunity. Tribal law requires that waiver of sovereign immunity must be consented to by the Business Committee of the Tribe by resolution. The resolutions adopted by the Business Committee of the Tribe did not waive the Tribe's sovereign immunity or consent to waiver of sovereign immunity. The trial judge, on motion for reconsideration, granted the Tribe's motion to dismiss for lack of subject matter jurisdiction and dismissed the case.AFFIRMED.Dennis Caruso, Caruso Law Firm, P.C., Tulsa, Oklahoma, Clint Ward, Ward & Lee, Vinita, Oklahoma, for Plaintiffs/Appellants.Scott N. Edwards, Miami, Oklahoma, John G. Ghostbear, Tulsa, Oklahoma, for Defendant/Appellee.EDMONDSON, J.

¶ 1 The question before us is whether the Seneca–Cayuga Tribe of Oklahoma expressly and unequivocally waived its sovereign immunity with respect to certain employment contracts entered into with tribal employees. The Seneca–Cayuga Tribe of Oklahoma (Tribe) is a federally recognized Indian tribe. The Tribe has a Constitution and By–Laws. The Tribe also was issued a corporate charter by the Secretary of the Interior under the Oklahoma Indian Welfare Act, 25 U.S.C. § 503. The Tribe and its corporation are separate entities. State ex rel. Oklahoma Tax Comm'n v. Thlopthlocco Tribal Town of Oklahoma, 1992 OK 127, 839 P.2d 180, 184.¹ Plaintiffs have sued the Tribe and no allegations are made in the petition against a corporate entity.

¶ 2 Pursuant to Art. VI of its Constitution, the Business Committee of the Tribe has the power to transact business and to speak or act on behalf of the Tribe in all matters in which the Tribe is empowered to act. Article IV of the By–Laws provides that four members of the Business Committee shall constitute a quorum at any meeting. Resolution # 23–120303 “Business Committee Actions,” dated December 3, 2003, provides that, pursuant to Article VI of the Constitution and Article IV of the By–Laws of the Tribe, no individual member of the Business Committee is authorized to transact business or otherwise speak or act on behalf of the Tribe in any matter on which the Tribe is empowered to act. It further provides that the act of a majority of members present in person at a meeting at which a quorum is present shall be the act of the Business Committee.

¶ 3 The Business Committee of the Seneca–Cayuga Tribe passed Resolution # 22–120303 on December 3, 2003. It provided that the Seneca–Cayuga Tribe has the right to assert sovereign immunity as a defense to an action brought against the Tribe, and states that:

... no waiver, either express or implied, of the right to assert sovereign immunity as a defense in an action brought against the Seneca–Cayuga Tribe of Oklahoma shall be valid without the consent of the Business Committee expressed by resolution.

¶ 4 On or about July 26, 2007, employment contracts were entered into between the Tribe and tribal employees for terms of three years. The contracts were identical except for job titles and salaries. The contracts provided that if the employee was terminated by the employer, the employee would be entitled to receive his or her continued base salary for the remainder of the contract term. Section 9 of the employment contracts contained a provision for limited waiver of sovereign immunity:

9. Waiver of Sovereign Immunity

The Tribe hereby expressly grants to Employee a limited waiver of its sovereign immunity from uncontested suit or judicial litigation.

¶ 5 On July 26, 2007, a poll vote of the Seneca–Cayuga Business Committee resulted in Resolution # 27–072607, which was styled: “Authorization for Chief to Sign a Three Year Employment Agreement with Tribal Employees.” The resolution stated that Chief Paul Spicer was authorized to sign a three year employment agreement between the Seneca–Cayuga Tribe of Oklahoma and tribal employees at their present salaries and in their present positions of employment. The poll vote was 5 yes, 0 no and 2 unavailable.²

¶ 6 On August 14, 2007, the Business Committee of the Tribe, at its regular business meeting, passed a resolution in an attempt to ratify Resolution # 27–072607. Resolution # 46–081407 was styled: “To Ratify Authorization to Enter Into Three Year Employment Contracts.” Resolution # 46–081407 recited that the Business Committee had approved Resolution # 27–072607 on July 26, 2007, which was authorization for the Chief to sign a three year employment agreement with tribal employees, and that the Business Committee felt that the action authorized by Resolution # 27–072607 was in the best interest of the Tribe and its government, and of the Tribal Corporations. The final clause, however, recited instead that Resolution # 17–061507 was ratified and affirmed.

¶ 7 The plaintiffs were terminated from employment prior to the end of the three year term and filed suit in the district court of Ottawa County to recover their base salaries until the end of the term. The Tribe moved to dismiss on the grounds of tribal sovereign immunity. The plaintiffs argued that the Tribe expressly waived sovereign immunity because the contracts contained a waiver of sovereign immunity and the Tribe had ratified the contracts by the Business Committee's resolutions. The Tribe argued that it did not waive sovereign immunity and that the resolutions did not ratify the contracts or consent to waiver of the Tribe's sovereign immunity.

¶ 8 After a hearing on the Tribe's motion to dismiss, the trial judge made findings of fact and conclusions of law and determined that the Tribe had waived sovereign immunity. He denied the Tribe's motion to dismiss by order dated June 24, 2010. The Tribe filed a motion for reconsideration, raising numerous arguments, including that the resolutions relied upon by plaintiffs were not valid and that, even if they were valid, they did not contain an express waiver of sovereign immunity, as required by federal and tribal law, and they did not ratify the contracts.

¶ 9 The Tribe argues that Resolution # 27–072607 is not valid because tribal law requires the act of a majority of members present in person at a meeting at which a quorum is present in order to be a valid act of the Business Committee, pursuant to Resolution # 23–20303. They argue that Resolution # 46–081407, which purports to ratify Resolution # 27–072607, is not valid because it in fact ratifies a different resolution, # 17–061507.³

¶ 10 Tribe argues that even if the resolutions are valid, Resolution # 27–072607 did not ratify the contracts, but only gave authorization for the Chief to sign them. Resolution # 46–081407 did not ratify the contracts, but only ratified the prior resolution. Thus, Tribe argues, the employment contracts were never validly ratified or authorized by the Tribe and the Tribe did not waive sovereign immunity as required by tribal law.

¶ 11 The plaintiffs responded to the motion to reconsider by filing a motion to strike or deny the motion on the grounds that it was untimely filed. The plaintiffs did not respond to the merits of Tribe's arguments on the motion to reconsider. After a hearing, the trial judge ruled that the Tribe had not waived its sovereign immunity and granted the Tribe's motion to dismiss for lack of jurisdiction. Plaintiffs appealed and this Court granted plaintiffs' motion to retain the appeal.

¶ 12 The standard of review for questions concerning the jurisdictional power of the trial court to act is de novo. Jackson v. Jackson, 2002 OK 25, 45 P.3d 418. As a matter of federal law, an Indian tribe is subject to suit only where 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, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). Waiver of sovereign immunity cannot be implied but must be unequivocally expressed. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Absent an effective waiver or consent, a state court may not exercise jurisdiction over a recognized Indian tribe. Puyallup Tribe, Inc. v. Department of Game of the State of Washington, 433 U.S. 165, 172, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977).

¶ 13 Courts have looked to tribal law in determining jurisdiction. The Tenth Circuit Court of Appeals, in Native American Distributing v. Seneca–Cayuga Tobacco Company, 546 F.3d 1288, 1295 (10th Cir.2008), looked to tribal law to determine whether the Seneca–Cayuga Tobacco Company was an enterprise of the tribe as a governmental entity rather than an enterprise of the tribal corporation. They held that the district court lacked jurisdiction because the business committee of the tribe invoked its constitutional powers in the resolution creating the tobacco company, which resolution expressly declared that the tobacco company and its activities were essential governmental functions of the tribe.

¶ 14 In Sanderlin v. Seminole Tribe of Florida, 243 F.3d 1282, 1287 (11th Cir.2001), the tribe's chief was held to be without actual or apparent authority to enter into contracts that would waive the tribe's sovereign immunity for Rehabilitation Act suits where the tribal...