Nenana Fuel Co., Inc. v. Native Village of Venetie
| Decision Date | 24 July 1992 |
| Docket Number | S-3721 and S-4299,Nos. S-3709,s. S-3709 |
| Citation | 834 P.2d 1229 |
| Parties | NENANA FUEL CO., INC., Appellant/Cross-Appellee, v. NATIVE VILLAGE OF VENETIE, a Native Corporation and Native Village of Venetie Tribal Government, Appellees/Cross-Appellants. NENANA FUEL CO., INC., Appellant, v. NATIVE VILLAGE OF VENETIE, a Native Corporation, and Native Village of Venetie Tribal Government, Appellees. |
| Court | Alaska Supreme Court |
Marilyn J. Kamm, Call, Barrett & Burbank, Fairbanks, for appellant/cross-appellee in Nos. S-3709, S-3721, and appellant in No. S-4299.
Judith K. Bush, William Caldwell and Carol Daniel, Alaska Legal Services Corp., Fairbanks, for appellees/cross-appellants in Nos. S-3709, S-3721 and appellees in No. S-4299.
D. Rebecca Snow, Asst. Atty. Gen., Fairbanks, Douglas M. Mertz, Asst. Atty. Gen., and Douglas B. Baily, Atty. Gen., Juneau, for amicus curiae, State of Alaska.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
This appeal comes after the superior court set aside a default judgment against the Native Village of Venetie Tribal Government (Tribal Government) and the Native Village of Venetie (Village Corporation). The court determined that the Tribal Government was a sovereign entity and therefore entitled to sovereign immunity. The court found that the Village Corporation was also a sovereign entity, but that it had waived its immunity when it adopted a "sue and be sued" clause in its corporate charter. Judge Greene stayed Nenana Fuel's action against the Village Corporation, ordering that it exhaust its tribal court remedies before proceeding in state court.
Nenana Fuel appealed the court's finding that the Tribal Government and the Village Corporation were entitled to sovereign immunity. Nenana Fuel argued in the alternative that the Tribal Government waived its sovereign immunity when it agreed to the remedies on default clause contained in a note and security agreement signed by the parties. Moreover, Nenana Fuel contended that this waiver pertained to Venetie's tribal courts, and that the order to exhaust tribal remedies was therefore improper. The Tribal Government and the Village Corporation cross-appealed the superior court's ruling that the "sue and be sued" clause of the Village Corporation's corporate charter was sufficient to waive its sovereign immunity.
Nenana Fuel subsequently obtained a stay of appeal, claiming that it had discovered new evidence which indicated that the Tribal Government and the Village Corporation had misrepresented their history to the court, and that they were not sovereign entities. This evidence consisted of documents and other evidence attached to the State of Alaska's Motion for Summary Judgment in an unrelated federal case, State of Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie, No. F87-051 CIV (D. Alaska, motion filed July 6, 1990). Based on this new evidence, Nenana Fuel filed a motion for relief from the superior court's earlier decision. The trial court denied that motion.
Nenana Fuel appeals that decision. Its appeal has been consolidated with the other issues pending in this litigation. We reverse.
Nenana Fuel sold fuel to the Tribal Government and Village Corporation in September 1984, when Venetie was expanding the airstrip at Arctic Village. The fuel was used to power equipment used on the site. The Tribal Government and the Village Corporation executed a Promissory Note and Security Agreement for the payment due Nenana Fuel for the fuel. The Tribal Government and the Village Corporation failed to pay Nenana Fuel as agreed in the promissory note. After unsuccessfully attempting to obtain possession of the collateral provided for in the Security Agreement, Nenana Fuel sought relief in the superior court.
At trial, both Nenana Fuel and the superior court accepted the representations made by the Tribal Government and the Village Corporation as to their history. The following history was therefore unquestioned. In 1940, the Secretary of the Interior approved the Village's constitution pursuant to § 16 of the Indian Reorganization Act (IRA), 25 U.S.C. § 461 et seq. (1982), 48 Stat. 988 (1934), and the Tribal Government has functioned since that time under this federal authority. In 1940, the Village also incorporated under § 17 of the IRA, which empowers it through its charter, constitution and bylaws to transact business for the village.
In 1943, at the request of the people from the Native Villages of Venetie, Arctic Village, Christian Village and Robert's Fish Camp, the Secretary of the Interior withdrew the 1.4 million acre Venetie reservation for the use and occupancy of the Natives of those villages, pursuant to the authority vested in him by 48 U.S.C. § 358(a) (repealed 1976). Congress revoked this reservation in 1971 by enacting § 19(a) of the Alaska Native Claims Settlement Act (ANCSA). See 43 U.S.C. § 1618 (1988).
Rather than participate in the regional corporation scheme established by ANCSA, the Natives of Venetie and Arctic Village elected to take fee title to their reservation lands pursuant to § 19(b) of ANCSA, 43 U.S.C. § 1618(b) (1988). Upon the federal government's conveyance of these lands in December 1979, the ANCSA village corporation deeded the lands to the Tribal Government. The Tribal Government has owned the former reservation lands in fee since that time.
In February 1987, Nenana Fuel filed a complaint in superior court alleging that the Village Corporation and Tribal Government owed it $134,128.17 plus interest and costs under the promissory note and security agreement signed by the parties. In June 1987, the superior court entered a default judgment against both defendants.
When the judgment was not satisfied, the superior court ordered a judgment debtor examination of both the Tribal Government and the Village Corporation. Neither defendant appeared for the examination. Pursuant to Nenana Fuel's motion, the court then entered an order to show cause why the Tribal Government and the Village Corporation should not be held in contempt for failing to appear at the judgment debtor examination.
The Tribal Government and the Village Corporation filed a memorandum in opposition to Nenana Fuel's motion for an order to show cause, arguing that the superior court lacked subject-matter jurisdiction over the controversy due to tribal sovereign immunity. Nenana Fuel replied that the Tribal Government and the Village Corporation had waived any sovereign immunity by failing to raise that defense during the pendency of the underlying suit, and that the Village Corporation had also waived any sovereign immunity by including a "sue and be sued" clause in its corporate charter.
The Tribal Government and the Village Corporation then moved to set aside the default judgment against them. They also moved to dismiss Nenana Fuel's complaint, claiming sovereign immunity and insufficiency of process. In April 1988, the trial court ruled that the defendants were entitled to sovereign immunity. It then dismissed the complaint as to the Tribal Government. However, the court found that the "sue and be sued" clause of the Village Corporation's charter was sufficient to waive the Village Corporation's sovereign immunity. The court ruled that the effect and extent of that waiver would be determined after further briefing and argument by the parties.
Nenana Fuel argued that the Village Corporation's waiver was a general one, and that suit in state superior court was therefore proper. The Village Corporation contended that the "sue and be sued" clause must be interpreted by the Tribal Government. If it did constitute a waiver, the clause would permit suit only in its own tribal courts.
After this court's May 1988 decision in Native Village of Stevens v. Alaska Management & Planning, 757 P.2d 32 (Alaska 1988), the superior court reinstated the Tribal Government as a party to the action and again heard argument as to whether the Tribal Government was a sovereign entity. In its supplemental brief on this question, the Tribal Government claimed that, because it had a constitution adopted pursuant to the IRA and a reservation prior to the enactment of ANCSA, it was a self-governing tribe entitled to sovereign immunity.
In March 1989, the superior court ruled that, even after Stevens Village, the Tribal Government was a sovereign entitled to immunity from suit. Because the court found that the Tribal Government had not waived its immunity, it again dismissed the case as to the Tribal Government. The court reaffirmed its earlier ruling that the "sue and be sued" clause of the Village Corporation's charter acted as a waiver of the Corporation's sovereign immunity.
In November 1989, the superior court set aside the default judgments against both the Village Corporation and the Tribal Government. The court dismissed the action against the Tribal Government, on the basis of its ruling that the Tribal Government possessed sovereign immunity. After asserting that it had subject-matter jurisdiction over the lawsuit, and that it therefore had the authority to resolve the issues of sovereign immunity and the nature and effect of the "sue and be sued" clause in the Village Corporation charter, the court then stayed the action against the Village Corporation with the order that Nenana Fuel exhaust its tribal court remedies.
Nenana Fuel appealed this decision. The Tribal Government and the Village Corporation cross-appealed the superior court's assertion of jurisdiction and determination that the Village Corporation waived its sovereign immunity.
During the course of this appeal, Nenana Fuel learned of documents filed by the State of Alaska in a federal district court case, State of Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie, No. F87-051 CIV (D. Alaska, motion filed July 6, 1990),...
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... ... Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 ... See Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682, 685 (10th Cir.1980); Nenana ... Fuel Co. v. Native Village of Venetie, 834 ... ...
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Krempel v. Prairie Island Indian Community, 4-94-CV-568.
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