Foxworthy v. Puyallup Tribe of Indians

• Decision Date: 16 October 2007
• Docket Number: No. 36132-9-II.,36132-9-II.
• Citation: 169 P.3d 53,141 Wn. App. 221
• Court: Washington Court of Appeals
• Parties: Holly M. FOXWORTHY, an individual, Appellant, v. PUYALLUP TRIBE OF INDIANS ASSOCIATION, d/b/a Emerald Queen Casino, also known as the Puyallup Indian Tribe, d/b/a Emerald Queen Casino, and William Robert Dewalt and Alisa Dewalt, and the marital community comprised thereof, Jane Does and/or John Does 1-10, Respondents.

169 P.3d 53

141 Wn. App. 221

Holly M. FOXWORTHY, an individual, Appellant, v. PUYALLUP TRIBE OF INDIANS ASSOCIATION, d/b/a Emerald Queen Casino, also known as the Puyallup Indian Tribe, d/b/a Emerald Queen Casino, and William Robert Dewalt and Alisa Dewalt, and the marital community comprised thereof, Jane Does and/or John Does 1-10, Respondents.

No. 36132-9-II.

Court of Appeals of Washington, Division 2.

October 16, 2007.

As Amended October 30, 2007.

Richard Hugh Benedetti, Carol J. Cooper, Davies Pearson PC, Tacoma, WA, for Appellant.

Roy Andrew Umlauf, Ann Crary McCormick, Forsberg & Umlauf, Seattle, WA, for Respondents.

Kyme Allison-Marie Mc Gaw, Morisset Schlosser Jozwiak & McGaw, Trent Stewart-Willia Crable, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Puyallup Tribe of Indians Associations Emerald Queen.

HUNT, J.

¶ 1 Holly Foxworthy appeals the trial court's dismissal of her negligence action against the Puyallup Tribe of Indians Association for lack of subject matter jurisdiction. Foxworthy was traveling in her automobile off the Puyallup reservation when an intoxicated driver collided with her. Foxworthy sued the intoxicated driver and the Puyallup Tribe, doing business as the Emerald Queen Casino, for serving the driver an excessive amount of alcohol in violation of Washington's Dram Shop Act, RCW 66.44.200. Ruling that the sovereign Tribe was immune from Foxworthy's lawsuit, the trial court granted the Tribe's CR 12(b)(1) motion to dismiss.

¶ 2 On appeal, Foxworthy argues that the trial court erred in recognizing tribal sovereign immunity as an affirmative defense defeating subject matter jurisdiction over her lawsuit. Though acknowledging that there has been no explicit waiver of tribal sovereign immunity from private actions under state dram shop laws, Foxworthy argues that Congress implicitly waived tribal sovereign immunity from such private actions when it promulgated 18 U.S.C. § 1161.

¶ 3 Finding no waiver or abrogation of the Tribe's sovereign immunity from private tort actions in Washington's state courts based on Dram Shop Act violations, we affirm.

FACTS

¶ 4 The Puyallup Tribe owns and operates the Emerald Queen Casino on its tribal land. Since 1996, the Casino has possessed a Washington State Liquor License to sell alcohol.

I. Intoxicated Vehicular Assault

¶ 5 On March 16, 2003, William Dewalt drove to the Emerald Queen Casino to attend a birthday party, where he consumed an unknown quantity of alcohol. Around 1:30 the next morning, Dewalt drove his car off tribal lands, southbound in the northbound lanes on Interstate 705, apparently without headlights. His car rounded a curve to the left and struck Holly Foxworthy's car. Foxworthy and her companion were injured.

¶ 6 At about 4:10 am, Dewalt's blood alcohol level was .16g/100ml, twice the legal limit in Washington. The State charged Dewalt with vehicular assault. He was convicted of this crime.

II. Civil Lawsuit

¶ 7 Foxworthy sued Dewalt and the Puyallup Tribe in Pierce County Superior Court, alleging that the Tribe's Casino had violated Washington's Dram Shop Act by serving alcohol to Dewalt when he was already intoxicated. The Tribe filed a CR 12(b)(1) motion to dismiss, asserting lack of subject matter jurisdiction because the Tribe possessed sovereign immunity from Foxworthy's private lawsuit in state court. The trial court granted the Tribe's motion.¹

¶ 8 Foxworthy petitioned our Supreme Court for direct review under RAP 4.2(4), arguing that the case involved a fundamental and urgent issue of broad public import requiring prompt and ultimate determination. The Court denied her petition and transferred her appeal to us. With our permission, the Squaxin Indian Tribe filed an amicus curiae brief.

ANALYSIS

¶ 9 In 1953, the United States Congress enacted 18 U.S.C. § 1161, which (1) removed a 120-year federal prohibition on Native Americans' sale and use of alcohol, and (2) authorized states to govern tribal liquor transactions and to regulate liquor on tribal lands. Foxworthy argues that 18 U.S.C. § 1161 thus operates as Congress's implicit waiver of tribal sovereign immunity from private lawsuits arising from a tribe's sale of alcohol to an intoxicated person in violation of a state dram shop act.

¶ 10 No Washington court has decided whether sovereign immunity insulates tribes from private dram-shop-act-based tort litigation. Thus, we address an issue of first impression.

I. Standard of Review

¶ 11 The existence of subject matter jurisdiction over a party asserting sovereign tribal immunity is a question of law, which we review de novo. See Wright v. Colville Tribal Enter. Corp., 159 Wash.2d 108, 111, 147 P.3d 1275 (2006). We agree with the trial court that it lacked subject matter jurisdiction over Foxworthy's action against the Puyallup Tribe.

II. Sovereign Immunity

A. Background

¶ 12 As "domestic dependent nations," American Indian tribes "exercise inherent sovereign authority over their members and territories." Okla. Tax Comm. v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991). This inherent sovereignty includes immunity from suit "absent a clear waiver by the tribe or congressional abrogation." Id.; see also Wright, 159 Wash.2d at 112, 147 P.3d 1275 (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)).

¶ 13 Upon initial contact between indigenous Indian tribes and foreign colonists, even before the formation of the United States, governments recognized tribal sovereignty. See Worcester v. Georgia, 6 Pet. 515, 31 U.S. 515, 558-59, 8 L.Ed. 483 (1832). Indian tribes retained their inherent sovereign immunity when the United States formed. Since its formation, the United States government has acknowledged Indian tribes. Cherokee Nation v. Georgia, 5 Pet. 1, 30 U.S. 1, 8 L.Ed. 25 (1831). Distinguishing Indian tribes from foreign states, the Supreme Court more than a century ago described Indian tribes as "domestic dependent nations," engaging in government-to-government relationships with the United States. Cherokee Nation, 30 U.S. at 10.

¶ 14 Federal common law created the doctrine of tribal sovereign immunity. In United States v. United States Fid. and Guar. Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940), the Supreme Court held that, inherent in their retained sovereignty, Indian tribes enjoy an affirmative defense of sovereign immunity. 309 U.S. at 512-13, 60 S.Ct. 653. A tribe's sovereign immunity extends to tribal commercial and governmental activities both on and off the tribe's reservation, and it provides a defense to suits filed against them in state and federal courts. Kiowa Tribe of Okla. v. Mfg. Techs., 523 U.S. 751, 754-55, 760, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998).

¶ 15 Courts have long recognized that "tribal immunity is a matter of federal law and is not subject to diminution by the States." Kiowa Tribe, 523 U.S. at 756, 118 S.Ct. 1700.² Both state and federal and courts have deferred to Congress's plenary authority in this arena. See e.g., Duro v. Reina, 495 U.S. 676, 698, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990), superseded by statute as stated in United States v. Lara 541 U.S. 193, 196, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004). Accordingly, Congress maintains the ultimate authority to decide whether, how, and where American Indian tribes may be sued, including the circumstances in which tribes may assert the affirmative defense of sovereign immunity. Modern Congresses have generally continued to promote sovereign immunity for Indian tribes and tribal officials. See Timothy W. Joranko, Tribal Self-Determination Unfettered: Toward a Rule of Absolute Tribal Official Immunity from Damages in Federal Court, 26 Ariz. St. L.J. 987, 1023 (1994).

B. No Express Waiver or Abrogation

¶ 16 Waiver of tribal sovereign immunity can arise in only two ways: from a tribe's express waiver or through a Congressional statute expressly abrogating tribal immunity. See Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670.

1. No express tribal waiver

¶ 17 Because Congress has been reluctant to revoke tribal sovereignty, as a practical matter the tribes themselves generally determine whether they will waive their sovereign immunity. See Indian Civil Rights Act, 25 U.S.C. §§ 1321-1322 (requiring tribal consent before a state can assume criminal or civil jurisdiction over actions involving an Indian tribe or its members). The Puyallup Tribe, for example, has expressly waived its tribal sovereign immunity for private tort actions brought in tribal court seeking damages for injuries caused by the Tribe's acts or omissions.³ According to Foxworthy's representations at oral argument, she has not availed herself of this tribal forum.

¶ 18 Instead, Foxworthy seeks damages in state court, where she concedes that the Tribe has not expressly waived its sovereign immunity. Therefore, if Foxworthy is to sustain her cause of action in state court, she must establish waiver of tribal sovereign immunity by Congressional abrogation. In this, she has failed.

2. No express Congressional abrogation

¶ 19 Congress has rarely, if ever, enacted a statute abrogating tribal sovereign immunity.⁴ And Foxworthy concedes that Congress has not explicitly abrogated tribal immunity in the context of such private dram-shop-tort actions. Thus, if Foxworthy is to sustain her cause of action, she must establish that Congress has impliedly abrogated tribal sovereign immunity.

3. No implied Congressional abrogation

¶ 20 The relationship between Congress and Indian tribes is central to our determination of whether there has been an implied Congressional abrogation of tribal sovereign immunity for private dram-shop actions in state courts. Citing Rice v. Rehner, Foxworthy contends that when Congress enacted 18 U.S.C. § 1161, it implicitly waived tribal sovereign immunity from private tort actions based on state dram shop laws. 463 U.S. 713, ...