Roby v. Mille Lacs Band of Ojibwe, (2012)
| Decision Date | 29 March 2012 |
| Docket Number | 2011 APP 04 |
| Parties | Angela D. Roby, Appellant, v. Mille Lacs Band of Ojibwe, et al., Marge Anderson, Chief Executive, Curt Kalk, Secretary/Treasurer, Sandra Blake, District I Representative, Marvin Bruneau, District II Representative, Diant Gibbs, District III Representative, Appellees. |
| Court | Non-Removable Mille Lacs Band of Ojibwe Indians Court of Appeals Dist of Nay-Ah-Shing |
DECISION OF THE COURT OF APPEALS
INTRODUCTION
The present case in an appeal from a final order of the District Court of the Non-Removable Mille Lacs Band of Ojibwe (''District Court"). Appellant Roby previously served as the Mille Lacs Band's Commissioner of Finance and she commenced her action against the Mille Lacs Band upon the expiration of her term of service. She seeks six months severance pa; In response the Mille Lacs Band moved to dismiss Appellant's complaint because the Mille Lac Band had not enacted a waiver of sovereign immunity that would permit the court to entertain the merits of her claims. The District Court ultimately granted the Mille Lacs Band's motion to dismiss because Appellant Roby failed to prove the existence of a waiver of the Band's sovereign immunity. The District Court concluded that it did not have jurisdiction over the merits of Roby's claims.
STANDARD OF REVIEW
The Court of Appeals accords substantial deference to the District Court's factual findings because the lower court had an opportunity to observe the testimony and to weigh the credibility of the witnesses. This Court will not disturb the District Court's Findings of Fact unless such findings represent a clear abuse of discretion.
This Court's review of the District Court's conclusions of law does not accord any deference to the lower court's conclusions. Instead, this Court considers de novo the issues of law that are to be applied to the facts of a particular case.
Cases involving tribal sovereign immunity and waivers of such immunity are issues of law, which this Court reviews de novo. Because this case involves issues of tribal sovereign immunity and assertions of waivers of such immunity, this Court will review de novo the conclusion of law of the District Court.
FACTUAL BACKGROUND
Appellant Roby served the Mille Lacs Band in an appointed position as the Band's Commissioner of Finance from September 23 2003 through April 29, 2011. By Band Statute the Commissioner of Finance position is a four year term of appointment by the Mille Lacs Band Assembly. Appellant Roby's four year term expired April 29, 2011, her last day of work. Appellant now seeks a six month severance payment in the amount of $69 650.00 from the Mille Lacs Band. Appellant has not cited any Band Statute or other policy that would entitle her to a severance payment. Instead, she relies upon the Band's severance payments to six prior appointed commissioners to justify her present claim.
Appellant alleges that the six prior recipients of severance packages were Native American, and the reason she did not receive a severance package is because she is non-Indian. Appellant argues that this disparate treatment entitles her to the relief she requests pursuant to the equal protection provisions of the 14th Amendment to the United States Constitution, and the provisions of Title VII of the Civil Rights Act of 1964.
The Appellees deny that Appellant Roby is entitled to any type of severance package. The Appellees argue that they are protected from Appellant Roby's claims by tribal sovereign immunity and official immunity; and that there has been no waiver of these immunities that would permit the Court to address the merits of Appellant Roby's claims. Appellees further argue that there is no basis in law or fact to support Appellant's claim to severance payment.
The Appellees also point out that Appellant Roby obtained confidential employment information with respect to the six former appointed commissioners through her position as Commissioner of Finance for the Mille Lacs Band; and that she inappropriately broadcast the confidential business information into the public domain.
SOVEREIGN IMMUNITY DEFENSE
The District Court determined that the Mille Lacs Band, as well as the individually named Appellees were protected against Appellant Roby's claims by the sovereign immunity of the Mille Lacs Band. The District Court concluded that there was no waiver of the immunity of the Band that would permit the merits of Appellant's claims to be addressed.
The Court starts with the premise that Indian Tribes and tribal officials who are sued in their official capacities enjoy common-law immunity from suit. Santa Clara Pueblo v Martinez, 436 U.S. 49, 58 (1976). The Band may waive that immunity, either for itself or its officials, but that waiver must be clear and unequivocal and cannot be implied. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, 523 U.S. 751 (1998) (). Sovereign immunity is a jurisdictional bar to suit and thus precludes a Court from hearing a case. Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040 (8th Cir. 2000) ( the District Court's denial of a motion to vacate a default judgment entered against a tribal entity on the ground that the entity was immune from suit and its default did not give the Court jurisdiction).
Because the sovereign immunity defense pertains to the jurisdiction of a Court to hear a case, it is generally inappropriate to enter a default judgment against an entity cloaked in immunity. Hagen, at 11. In order for an immunity defense to justify dismissal before meaningful discovery has taken place, the party asserting immunity must demonstrate on the fac of the pleadings that dismissal is appropriate. Hafley v. Lohman, 90 F.3d 264 (8Ih Cir. 1996). However, as the United States Supreme Court reaffirmed in Saucier v. Katz, 533 U.S. 134 (2001), the immunity defense is not only a defense to liability, but is an entitlement not to stand trial. Mitchell v. Forsyth, 472 U.S. 511 (1985). Although both Saucier and Mitchell dealt with the qualified immunity defense, there is no indication that the sovereign immunity defense should be treated any differently. As the Court in Saucier held, it is incumbent upon trial courts to resolve immunity issues as soon as possible to avoid an entity cloaked in immunity from having to defend a suit.
When an Indian Tribe, rather than a tribal official, is named as a Defendant in a lawsuit, courts have been particularly loath to recognize waivers of immunity. It is now a well-settled axiom of federal law that Indian Tribes, like state and federal governments, are sovereign entitie: that cannot be sued absent their consent or an unambiguous abrogation of their immunity. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); Tamiami Partners v. Miccosukee Tribe, 63 F.3d 1030 (11th Cir. 1995); Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe, 498 U.S. 505 (1991). Not only have the federal courts acknowledged this immunity, but the state courts of Minnesota, See Gayle v. Little Six, Inc., 534 N.W.2d 280, 286 (Minn.Ct.App. 1995); Cohen v. Little Six. Inc., 543 N.W. 2d376 (Minn.App.1996), as well as tribal courts of Indian nations throughout the country have accepted this doctrine. See Davis v. Mille Lacs Band, et al, 96CV701 (Memorandum decision of September 30, 1996) (Tribe cannot be sued for money damages for actions taken by tribal employee); See also Clement v. LeCompte, 22 ILR 6111 (Cheyenne River Supreme Court, 1994); GNS, Inc., et al v. Winnebago Tribe of Nebraska, 21 ILR 6104 (Winnebago Tribal Court, 1994); Raymond v. Navajo Agricultural Products Industry, 22 ILR 6100 (Nav. Supreme Court, 1995). An Indian Tribe is generally immune from any type of suit, including suits for money damages, as well as equitable and injunctive relief. Duncan Energy v. Three Affiliated Tribes of the Fort Berthold Reservation, 812 F.Supp. 1008, 1011 (D.N.D.1992), reversed on other grounds, 27 F.3d 1294 (8th Cir. 1994).
Even if it is demonstrated that tribal officials exceeded their authority, the Tribe itself cannot be sued for money damages. Imperial Granite Co. v. Pala Band of Mission Indians. 940 F.2d 1269 (9th Cir. 1991); Oklahoma Tax Commission, supra. The United States Court of Appeals for the Eighth Circuit has recognized an exception to this principle when a tribe has exceeded its authority to promulgate legislation and is being sued for injunctive relief, but this exception is inapposite in this case as the case at bar involves claims for monetary relief. See Northern States Power Co., supra.
The courts have recognized numerous manners by which the sovereign immunity of a tribe can be waived or abrogated. The United States Supreme Court held that a tribe that enters into an arbitration clause as part of a contractual agreement has waived its immunity can be forced to comply with an arbitration award. C&L Enterprises v. Citizen Band of Potawatomi Indian Tribe of Oklahoma, 532 U.S 411 (2001). A tribe can waive its immunity, but that waiver must be clearly and unambiguously expressed and waiver will not be inferred. See Rosebud Sioux v. Val-U Construction Company, 50 F.3d. 560 (8th Cir. 1995) (), contra, Calvello v. YST, 899 F.Supp. 431 (D.S.D.1995); Rupp v. Omaha Tribe, 45 F.3d 1241 (8th Cir. 1995) (); Dacotah Properties v. Prairie Island Indian Community, 520 N.W.2d 167, 170 (Minn.Ct.App. 1994) (Tribe, by engaging in commercial enterprises with non-Indian entities under a corporate charter permitting it...
To continue reading
Request your trial