Nafco, Inc. v. United States, (2006)

• Decision Date: 06 June 2006
• Docket Number: TUL-CV-GC-2005-0432
• Parties: NAFCO INC. AND STORMMY V. PAUL, PLAINTIFFS/APPELLANTS, v. UNITED STATES, ET AL., DEFENDANTS/APPELLEES.
• Court: Tulalip Tribal Court of Appeals

NAFCO INC. AND STORMMY V. PAUL, PLAINTIFFS/APPELLANTS, v. UNITED STATES, ET AL., DEFENDANTS/APPELLEES.

No. TUL-CV-GC-2005-0432

Tulalip Tribal Court of Appeals

June 6, 2006

SYLLABUS BY THE COURT

Trial court dismissed complaint filed by tribal member under the name of his business seeking a tribal court injunction preventing the United States and members of the United States Attorney's Office from prosecuting tribal member in federal court.Court of Appeals holds the Tribal Court lacks jurisdiction over the federal defendants because they enjoy sovereign immunity.Trial court order affirmed.

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

OPINION

SLEDD J.

AppellantStormmy V. Paul was indicted in federal court in Seattle in March, 2005.The indictment charged a conspiracy to traffic in cigarettes that lacked state tax stamps, in violation of 18 U.S.C. 2341(2), and related crimes.Mr. Paul and NAFCO Incorporated filed this civil suit in the Tulalip Tribal Court in December, 2005.The suit seeks a writ against the federal District Court to stay the federal prosecution, as well as restitution and damages for seizure of Plaintiffs' cigarettes.The Defendant-Appellees are the United States; John McKay, who is the United States Attorney for the Western District of Washington; and three Assistant United States Attorneys.The individuals were sued in their official capacities.

The Complaint alleged that Plaintiff Paul is a member of the Tulalip Tribes and that NAFCO is an Indian-owned business operating on the Tulalip Indian Reservation.Stripped to its basics, Plaintiffs' theory appears to be that the Tulalip Tribes and their members have a right to sell cigarettes without state taxes under the Treaty of Point Elliott, 12 Stat. 927, that no federal statute abrogates the Treaty, and that Defendants therefore lack jurisdiction to prosecute.

Although served with the complaint and summons, Defendants did not file a timely responsive pleading.Plaintiffs filed a Motion for Order to Show Cause, effectively seeking a default judgment.The United States Attorney's Office responded with a letter to the trial court on behalf of Defendants.The letter stated that the Defendants would not make a formal appearance, and asked that the letter be construed as, at most, a special appearance for the purpose of challenging jurisdiction.The letter argued that sovereign immunity deprived the tribal court of jurisdiction over the United States and its officers acting in their official capacities, citing United States v. White Mountain Apache Tribe,784 F.2d 917, 919-920(9th Cir.1986)andUnited States v. Yakima Tribal Court,806 F.2d 853, 860(9th Cir.1986), cert. den.481 U.S. 1069(1987).

Judge Pouley heard the Plaintiffs' Motion for Order to Show Cause on January 24, 2006, denied it, and dismissed the case for lack of jurisdiction under Tulalip law.

Plaintiffs, now Appellants, timely filed their Notice of Appeal.This Court ordered Appellants to file a brief limited to the issue of its jurisdiction, and offered Appellees the opportunity to do the same.For reasons unknown, this Order was not served on Appellees, and they filed nothing.This does not matter, however, because Appellants' brief fails to persuade us that the tribal courts have jurisdiction under Tulalip law.We will therefore affirm without further briefing or argument.

The pertinent jurisdictional provision is Tribal Ordinance 49, Section 1.2.1.It grants the tribal courts very broad jurisdiction, reaching "all persons natural and legal of any kind and à all subject matters,""except as limited by federal or Tulalip tribal law"(emphasis added).The exception incorporates the federal law of tribal jurisdiction as tribal law, which we must follow.

Under federal law, sovereign immunity is a jurisdictional matter.^[1]F.D.I.C. v. Meyer,510 U.S. 471, 114 S.Ct. 996(1994).Also under federal law, the United States has sovereign immunity unless clearly waived.E.g., United States v. Sherwood,312 U.S. 584, 586, 61 S.Ct. 767(1941).Federal officials acting in their official capacities and within the scope of their authority have the same immunity as the United States itself.Larson v. Domestic and Foreign Commerce Corp.,337 U.S. 682, 689-690, 69 S.Ct. 1457(1949).

Appellants have not shown a clear waiver of federal sovereign immunity.They merely restate their argument that the United States is acting unlawfully and lacks jurisdiction to prosecute them under the Treaty.This is not enough.Immunity is intended to protect public funds and services from liability.If immunity vanished whenever the government acted unlawfully, it would be of no use at all.See, e.g., Larson, supra,337 U.S. at 690(error in exercise of authority does not cost official his or her immunity).

Although not argued in their jurisdictional brief, Appellants' Complaint alleged that the federal Administrative Procedure Act was a waiver of immunity.The APA waives immunity for federal court review of final federal agency action for which there is no other adequate remedy at law.5 U.S.C. secs. 702,704;e.g., The Presbyterian Church (U.S.A) v. United States,870 F.2d 518(9th Cir.1989).Tulalip tribal courts are not federal courts, an indicting grand jury is not a federal ...