Olson v. Nooksack Indian Housing Authority, (2001)

• Court: Nooksack Tribal Court of Appeals
• Decision Date: 20 June 2001
• Citation: Olson v. Nooksack Indian Housing Authority (Nooksack Tribal Ct. of App. 2001)
• Docket Number: NOO-HSG-4/00-034
• Parties: GEORGE AND LEANNA OLSON, PLAINTIFFS/APPELLANTS, v. NOOKSACK INDIAN HOUSING AUTHORITY AND NOOKSACK TRIBAL COUNCIL, DEFENDANTS/RESPONDENTS

GEORGE AND LEANNA OLSON, PLAINTIFFS/APPELLANTS, v. NOOKSACK INDIAN HOUSING AUTHORITY AND NOOKSACK TRIBAL COUNCIL, DEFENDANTS/RESPONDENTS

No. NOO-HSG-4/00-034

Nooksack Tribal Court of Appeals

June 20, 2001

SYLLABUS BY THE COURT

Trial court dismissed claims for damages against the Tribal Council and the Tribal Housing Authority based on sovereign immunity. As to the Tribal Council, Court of Appeals holds that Tribe did not expressly waive its sovereign immunity and therefore the Council is immune to suit for damages. As to the Housing Authority, Court of Appeals holds that tribal ordinance authorizing Housing Authority to sue and be sued does not in itself constitute a waiver of sovereign immunity. Court notes that injunctive relief may be available to Appellants, but such relief was not requested. Order of trial court affirmed.

Mr Desmond Kolke, via telephone, counsel for Appellants George and Leanna Olson; Ms. Joanne Foster, counsel for Respondent Nooksack Indian Housing Authority; Ms. Jerrie Simmons counsel for Respondent Nooksack Tribal Council. Also appearing on record were Council members Richard D. George and George Swanaset, Sr., and Housing Director Marianne Kelly.

Before: Lisa E. Brodoff, Chief Justice; Patricia C. Paul Justice; Rose E. Purser, Justice.

OPINION

This matter came before the Nooksack Tribal Court of Appeals for oral argument on April 30, 2001, pursuant to a Notice of Appeal filed by Appellants George and Leanna Olson on November 16, 2000. Appellants appeal from the November 2, 2000 Memorandum Opinion and Order wherein the Nooksack Trial Court found the Tribe had not waived its sovereign immunity and dismissed the Olsons' complaint against Respondents. Subsequent to oral arguments, this Court issued a Memorandum Decision affirming the lower court's November 2, 2000 order. This full Opinion and Order follows.

I. Background

On May 19, 2000 Plaintiffs/Appellants George and Leanna Olson commenced an action in Nooksack Tribal Court (trial court) against Respondents Nooksack Indian Housing Authority and Nooksack Tribal Council. The Olsons alleged that Respondents had violated their civil rights under the Indian Civil Rights Act (ICRA) and their right to protection under Nooksack tribal law by forcibly and unlawfully evicting them from their home at 2517 Suchanon Drive in Everson, Washington. Respondents denied the allegations and moved for dismissal based on the affirmative defense of tribal sovereign immunity.

The trial court heard oral argument on Respondents' motion to dismiss on September 6, 2000. Subsequently, on November 2, 2000, the trial court issued its Memorandum Opinon and Order, which held that (1) absent an explicit waiver, the Nooksack Indian Housing Authority is immune from suit; (2) no waiver exists in the code, nor has the court been provided with a specific waiver by the council or by contract; (3) and the Tribal Council and the Nooksack Indian Housing Authority are immune from suit; and dismissed the Olsons' action against both Respondents. It is from this order that the Olsons appeal. Appellants further allege that article IX of the Nooksack Tribal Constitution, which adopts provisions of the Indian Civil Rights Act, constitutes a waiver of tribal sovereign immunity.

II. Jurisdiction

This Court has subject matter jurisdiction over this appeal pursuant to art. VI, §2(A)(3) of the Nooksack Tribal Constitution. The act which is the subject of this appeal occurred within the exterior boundaries of the Nooksack Indian Reservation, giving rise to territorial jurisdiction. Appellants consent to this Court's personal jurisdiction over them by voluntarily bringing this appeal before the Nooksack Tribal Court of Appeals.

III. Discussion

A. Sovereign Immunity

1. The Nooksack Tribe

The immunity of Indian tribes from suits in federal and state courts is well-established; such suits may not be entertained unless "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 (1998); C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, ___ U.S. ___, 121 S.Ct. 1589 (2001). In Oklahoma Tax Commission v. Potawatomi Tribe, 498 U.S. 505 (1991), the Court explained:

A doctrine of Indian tribal sovereign immunity was originally enunciated by this Court and has been reaffirmed in a number of cases. . . . Congress has consistently reiterated its approval of the immunity doctrine [in Acts which] reflect Congress' desire to promote the "goal of Indian self-government, including its 'overriding goal' of encouraging tribal self-sufficiency and economic development."

498 U.S. at 510 (citations omitted).

In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978), the Court, citing previous decisions, described tribes "as possessing the common law immunity from suit traditionally enjoyed by sovereign powers."^[1] Because this common law immunity is an inherent attribute of sovereignty similar to the immunity of the United States, it shields tribes from suit absent an express waiver by the tribe. See Smith v. Confederated Salish and Kootenai Tribes, 23 Ind. L. Rep. 6256, 6257 (Ct.App. of Confed. Salish and Kootenai Tribes 1996). Other courts have noted that tribal sovereign powers predate the establishment of the United States and are based on the tribes' status as autonomous political entities that retain certain natural rights related to self-governance. Ninigret Development Corp. v. Narragnasett Indian Wetuomuck Housing Authority, 207 F.3d 1, 29 (1st Cir. 2000), citing Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832). This inherent nature of tribal sovereign immunity requires this court to conclude that it similarly extends to actions brought against tribes in tribal courts.

Moreover, the Nooksack Constitution provides in article VI, §2(A)(3) that the tribal court "shall have jurisdiction over all Indians on tribal lands; over all civil matters concerning members of the Nooksack Indian Tribe; over all matters concerning the establishment and functions of the tribal government, provided that nothing herein shall be construed as a waiver of sovereign immunity by the tribal government." [Emphasis added]. This language can only be read as tribal recognition and confirmation of the common law immunity of the Tribe from suit. Further, it is well-settled that a waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." Martinez, 436 U.S. at 60 (1978); United States v. Testan, 424 U.S. 392, 399, S.Ct. 948, 953, 47 L.Ed. 114 (1976); United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969).

It is clear that the Nooksack Indian Tribe has expressly stated its intent to exercise and preserve its tribal sovereign immunity. We agree with the lower court that no explicit waiver of immunity can be found in the tribal code, nor has one been expressly effected through Council action or by contract. Therefore, we hold that the Nooksack Indian Tribe has not expressly waived its sovereign immunity. We further hold that the language in article IX of the Tribal Constitution does not constitute an unequivocal and clearly expressed waiver of sovereign immunity and, therefore, that the Tribe and, as the Tribe's governing body, the Tribal Council, are immune from damage suits under the Indian Civil Rights Act.

2. Nooksack Indian Housing Authority

We next address whether the Tribe's immunity from suit extends to the Nooksack Indian Housing Authority. The Housing Authority is an arm of the tribal government established by tribal ordinance to provide housing for tribal members. It is authorized "to sue and be sued in its corporate name upon any contract, claim or obligation arising out of its activities under [the] ordinance . . . ." Nooksack Tribal Code §40.06.020. The ordinance also provides that the Housing Authority may "agree by contract to waive any immunity from suit which it might otherwise have . . . ." Id.

A number of courts have considered whether Indian housing authorities possess immunity from suit. We agree with the overwhelming majority of courts that have found a Tribe's sovereign immunity extends to its agencies, including Indian Housing Authorities. See Dillon v. Yankton Sioux Tribe Housing Authority, 144 F.3d 581, 583-84 (8th Cir. 1986); Weeks Construction, Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668 (8th Cir. 1986); Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185 (9th Cir. 1998); cert. denied, 528 U.S. 877 (1999) (consortium formed by several tribes has immunity from suit); Canby, American Indian Law at 87 (1998); F. Cohen, Handbook on Federal Indian Law at 37 (1982).

Having determined that the Housing Authority is cloaked with the tribe's sovereign immunity, we must then examine whether the "sue and be sued" clause of the Nooksack Tribal Code waives that immunity. Most authority holds that "sue and be sued" provisions do not, in and of themselves, waive sovereign immunity. A recent case persuasively summarizes the law in this area:

An occasional case appears to have held that the enactment of such an ordinance, without more, constitutes an effective waiver of sovereign immunity. See, e.g., Snowbird Const Co. v. United States, 666 F.Supp. 1437, 1440-41 (D.Idaho 1987). In our judgment, the better view holds that the enactment of such an ordinance, in and of itself, does not waive a tribe's sovereign immunity. See Dillon, 144 F.3d at 583-84; Buchanan v. Sakaogon Chippewa Tribe, 40 F.Supp.2d 1043, 1047 (E.D. Wis. 1999). After all, the ordinance, by its terms, authorizes the Authority to shed its immunity from suit "by contract," and these words would be utter surplusage if the enactment of the ordinance itself served to...