Ito v. Copper River Native Ass'n

• Docket Number: Supreme Court No. S-17965
• Decision Date: 26 April 2024
• Citation: 547 P.3d 1003
• Parties: Yvonne ITO, Appellant, v. COPPER RIVER NATIVE ASSOCIATION, Appellee.
• Court: Alaska Supreme Court

547 P.3d 1003

Yvonne ITO, Appellant,

v.COPPER RIVER NATIVE ASSOCIATION, Appellee.

Supreme Court No. S-17965

Supreme Court of Alaska.

April 26, 2024

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Dani Crosby, Judge. Superior Court No. 3AN-20-06229 CI

James J. Davis, Jr., Northern Justice Project, LLC, Anchorage, for Appellant.

Richard D. Monkman and Nathaniel H. Amdur-Clark, Sonosky, Chambers, Sachse, Miller & Monkman, LLP, Juneau, for Appellee.

Nicholas J. R. Gasca, Tanana Chiefs Conference, Fairbanks, for Amicus Curiae Tanana Chiefs Conference.

Erin C. Dougherty Lynch, Matthew N. Newman, and Maggie Massey, Native American Rights Fund, Anchorage, for Amici Curiae Arctic Village Council, Alaska Native Tribal Health Consortium, Council of Athabascan Tribal Governments, Maniilaq Association, Southeast Alaska Regional Health Consortium, and United Tribes of Bristol Bay.

Seth M. Beausang, Assistant United States Attorney, Anchorage, and Charles W. Scarborough and Martin Totaro, Department of Justice, and Brian M. Boynton, Acting Assistant Attorney General, Washington D.C., for Amicus Curiae United States.

Laura Wolff, Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for Amicus Curiae State of Alaska.

Before: Winfree, Chief Justice, and Carney and Henderson, Justices, and Matthews and Fabe, Senior Justices.^* [Maassen and Borghesan, Justices, not participating.]

OPINION

HENDERSON, Justice

I. INTRODUCTION

Copper River Native Association (CRNA) is an Alaska non-profit corporation formed and controlled by federally recognized Alaska Native tribes to provide services for members, including tribal health care. CRNA is defined as an inter-tribal consortium under a federal law that promotes tribal self-determination. The member tribes have authorized CRNA to receive healthcare funds from the federal government that would otherwise flow to the tribes. This case concerns whether CRNA is an arm of its member tribes and thus entitled to the tribes’ sovereign immunity.

A former employee sued CRNA over her termination. The superior court dismissed her complaint because it concluded that CRNA was an arm of its member tribes and therefore entitled to sovereign immunity. The former employee appeals, arguing that CRNA is not entitled to tribal immunity under our 2004 decision in Runyon ex rel. B. R. v. Association of Village Council Presidents.¹ CRNA contends that if the former employee is correct, Runyon should be overruled.

We agree with CRNA that the legal landscape defining the contours of tribal sovereign immunity has shifted significantly since our decision in Runyon. Subsequent developments in tribal immunity doctrine have undermined Runyon’s treatment of financial insulation as a threshold question. Instead of treating financial insulation as dispositive, we adopt a multi-factor inquiry informed by these recent developments to determine whether an entity is entitled to "arm-of-the-tribe" immunity. Applying the multi-factor inquiry, we conclude that CRNA is an arm of its member tribes. We therefore affirm the superior court.

II. FACTS AND PROCEEDINGS

Ahtna’ T’Aene Nene’, known in English as Copper River Native Association (CRNA), is a tribal organization formed as an Alaska nonprofit corporation in 1972. CRNA’s articles of incorporation explain that it "is the historic successor of the Chiefs Conference whose name is lost in antiquity, the traditional consultative and governing assembly of the Athabascan people of the Copper River Region from time immemorial." The articles also express an intent that CRNA "have all the rights, duties, powers, and privileges of this historic assembly."

CRNA’s members are federally recognized tribes within the region. At the inception of this case the member tribes included the Native Village of Kluti-Kaah, the Native Village of Tazlina, the Gulkana Village Council, the Native Village of Gakona, and the Native Village of Cantwell. Each member tribe’s council elects a representative to CRNA’s board of directors. Directors and officers must be Alaska Natives, be enrolled in a member tribe, and physically reside in the region.

CRNA is an "inter-tribal consortium"² under the Indian Self-Determination and Education Assistance Act (ISDEAA).³ It provides a variety of services on behalf of the federally recognized tribes that comprise it. According to the chair of CRNA’s board of directors, the member tribes each "passed Tribal government resolutions authorizing CRISTA to receive the Tribe’s federal health care funds and proride health care services to their Tribal members." Many of these services are funded through the Alaska Tribal Health Compact, a self-governance compact authorized by ISDEAA between the federal government and certain Alaska Native tribes or tribal organizations acting on their behalf, including CRNA. Funds distributed under the compact provide a substantial portion of CRNA’s budget. Pursuant to one such agreement, CRNA established a "Senior Citizens’ Program" to provide elders in CRNA’s area with "nutrition services, … shopping assistance, passenger assistance, transportation, outreach and advocacy, information, and referral services."

Yvonne Ito was hired by CRNA as the Senior Services Program Director in January 2018. CRNA terminated Ito’s employment in May 2010. Ito then sued CRNA, bringing a single claim of breach of the implied covenant of good faith and fair dealing in her employment contract. CRNA moved to dismiss her complaint under Alaska Civil Rule 12(b)(1), arguing the court lacked subject matter jurisdiction because CRNA was entitled to tribal sovereign immunity under 25 U.S.C. § 5381(b), the rights-and-responsibilities provision of ISDEAA,⁴ and as an arm of its member tribes. CRNA emphasized that tribal sovereign immunity is a question of federal law and urged the superior court to evaluate the background principles of tribal sovereign immunity using the factors from the Ninth Circuit Court of Appeals’ White v. University of California decision.⁵ Ito countered that the superior court was bound to apply our decision in Runyon to evaluate whether CRNA was entitled to tribal sovereign immunity.⁶

The superior court granted CRNA’s motion to dismiss. Although the court agreed with CRNA that White favored immunity, it did not apply White because it was not convinced that Ninth Circuit decisions preempted Alaska law when litigating tribal sovereign immunity in Alaska courts. The court instead concluded that CRNA was "entitled to assert tribal sovereign immunity under controlling federal statutory law" because ISDEAA mandated that inter-tribal consortia "have the lights and responsibilities of" the tribes that created them — including sovereign immunity. The court also held, in the alternative, that CRNA was entitled to sovereign immunity as an arm of its member tribes. The court reasoned that because the "tribes’ funds that would otherwise be used to provide for healthcare for tribal members would be at risk in the event of an adverse judgment," the tribes were therefore the "real parties in interest" as defined in Runyon.

Ito appeals. Amici curiae briefs were filed by Tanana Chiefs Conference, Arctic Village Council, Alaska Native Tribal Health Consortium, Council of Athabascan Tribal Governments, Maniilaq Association, Southeast Alaska Regional Health Consortium, and United Tribes of Bristol Bay. At our invitation the State of Alaska and the United States participated as amici as well. We thank all amici for their helpful participation.

III. STANDARD OF REVIEW

[1] We review de novo "issues of sovereign immunity" and dismissals "for lack of subject matter jurisdiction."⁷ In doing so "we will adopt the rule of law that is most persuasive in light of precedent, reason, and policy."⁸

IV. DISCUSSION

This case requires us to review the doctrine of tribal sovereign immunity and how it applies to legal entities that, while formally distinct from tribes, nonetheless function as arms of tribes. We discuss the fundamentals of tribal sovereign immunity as established by the United States Supreme Court; our 2004 Runyon decision concerning arm-of-the-tribe immunity; and subsequent state and federal cases regarding tribal immunity decided since Runyon. With that background in mind, we then evaluate whether CRNA is entitled to tribal sovereign immunity as an arm of its member tribes.

A. Fundamentals Of Tribal Sovereign Immunity

[2, 3] Native tribes are "distinct, independent political communities, retaining their original natural rights."⁹ "In other words, they are sovereigns."¹⁰ "Among the core aspects of sovereignty that tribes possess … is the ‘common-law immunity from suit traditionally enjoyed by sovereign powers.’ "¹¹ Federally recognized tribes are therefore "entitled to tribal sovereign immunity in Alaska state court."¹²

[4–6] Despite federally recognized tribes’ inherent sovereign authority, the United States Supreme Court has held that, as domestic dependent nations, "the tribes are subject to plenary control by Congress."¹³ Congressional legislation can thus abrogate tribal sovereign immunity, but only when "Congress [has] ‘unequivocally’ express[ed] that purpose."¹⁴ "Th[is] rule of construction reflects an enduring principle of Indian law: Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian self-government."¹⁵ Moreover, tribal immunity "is a matter of federal law and is not subject to diminution by the States."¹⁶

[7, 8] A tribe may also waive its own sovereign immunity.¹⁷ To do so, the tribe’s waiver must be clearly expressed.¹⁸ We have explained that a tribe may "choose to waive its own immunity for transparency and accountability reasons or protect its interests when entering into a contract with another tribe by negotiating a waiver of the other tribe’s immunity."¹⁹ And we have further emphasized that the " ‘federal...