Williams v. Madison, (2004)

• Decision Date: 15 November 2004
• Docket Number: TUL CV-ET-2003-0160
• Parties: HERMAN WILLIAMS, JR., DONALD HATCH, JR., MARIE M. ZACKUSE, LESLIE PARKS, MELVIN SHELDON, APPELLANT/DEFENDANTS, v. MICHELLE R. MADISON, APPELLEE/PLAINTIFF.
• Court: Tulalip Tribal Court of Appeals

HERMAN WILLIAMS, JR., DONALD HATCH, JR., MARIE M. ZACKUSE, LESLIE PARKS, MELVIN SHELDON, APPELLANT/DEFENDANTS, v. MICHELLE R. MADISON, APPELLEE/PLAINTIFF.

NO. TUL CV-ET-2003-0160

Tulalip Tribal Court of Appeals

November 15, 2004

SYLLABUS BY THE COURT

Trial court denied motion by members of the Tribe's Board of Directors to dismiss former employee's complaint for wrongful termination based on sovereign immunity.Court of Appeals holds (1) Tribal law establishes an absolute bar to suit against tribal officers when acting in their official capacities and (2) members of the Board of Directors named in this suit were acting within their official capacity when they voted to eliminate plaintiff's position with the Tribe.Trial court order reversed and case remanded with instructions to dismiss the complaint.

Appearances: Timothy A. Brewer, Office of Reservation Attorney, for Appellants/Defendants.Claudia Newman Attorney, for Appellee/Plaintiff.

The opinion of the court was delivered by: Raas, J.

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

OPINION

RAAS, J.

Appellants appeal from the Trial Court's denial of its motion to dismiss this action on the grounds of sovereign immunity.We reverse and remand for the dismissal of the Complaint.

BACKGROUND

Acting at the request of the Tulalip General Council, the Tulalip Board of Directors directed its Reservation Attorney to investigate allegations that the former General Manager of the Tribe had created at least ten positions that were not authorized under the budget plan adopted by the Board, and had filled those jobs in violation of the personnel ordinance of the Tribe.The investigation showed that several positions were created that were not in the approved budget but that the occupants of only two of those jobs were hired in violation of the personnel ordinance.

The Board met to consider its options.All seven members of the Board were present, the requisite staff were in attendance, and minutes of the meeting were taken.In the course of its deliberations, the Board passed Resolution 03-213 by a vote of four to zero, with two abstentions and the Chairman not voting.This Resolution directed the current General Manager to eliminate all the positions unlawfully created and to terminate the employment of the individuals hired for these jobs, or to return them to their previous positions.These employees were not required to repay the Tribe any of the salary or benefits they had received while in these positions.Persons not employed by the Tribe prior to their hiring into one of the unlawful positions were terminated from Tribal employment.No individuals are named in Resolution 03-213, although a list of positions was apparently attached to the Resolution.The list was not included in the excerpts of record.

PlaintiffMichelle Madison alleges she was one of the people whose positions were terminated.She argues that she was not hired in violation of the personnel ordinance.She avers in her Amended Complaint that she was fired for her whistle blowing activities which implicated relatives of certain Board members and other politically active Tribal members.Her Amended Complaint recites a series of actions and meetings prior to the passage of Resolution 03-213.

PROCEDURAL HISTORY

Ms. Madison initially filed her Complaint against the Board and its members in their official capacities.She later filed an Amended Complaint naming the four (4) Board members who voted in favor of Resolution 03-213 and the General Manager in their individual capacities only.The Defendants moved to dismiss on the grounds that the actions of these Board members and the General Manager were taken in the course of their official duties and that therefore the Tribe's sovereign immunity barred suit against them, in either their official or their individual capacities.The Trial Court dismissed the claims against the General Manager, but refused to dismiss the claims against the Board members.The Board members appealed; Ms. Madison did not.

STANDARD OF REVIEW

This Court reviews the case and the record de novo, as it sits in the same position as the Trial Court.Where a case comes to us when the Trial Judge had no occasion to evaluate the credibility of witnesses, then we do not give the Trial Court's decision any weight, since we can make an independent evaluation of the record as did the Trial Judge.

The factual allegations in the Complaint are accepted as true, as are the factual allegations of the Defendants not in conflict with the Plaintiff's factual statements, although this Court is not bound by the parties' or the Trial Court's conclusions drawn from those facts.This Court also may consider the official records of the Tribe, such as Resolution 03-213, which the parties have placed in the record or referenced in their submissions.

DISCUSSION

Indian tribes have immunity from suit due to their sovereign status in American law.Santa Clara Pueblo v. Martinez,436 U.S. 49(1978).This status stems from their absolute sovereignty that existed prior to European contact.United States v. Oregon,657 F.2d 1009(1982).^[1]

The Tulalip Tribe has acted to codify the immunity of its elected officials, employees and agents in TTO 49 § 1.2.2:

The Tulalip Tribes, its Board of Directors, its agencies enterprises, chartered organizations, corporations, or entities of any kind, and its officers, employees, agents, contractors, and attorneys, in the performance of their duties, shall be immune from suit; except where the immunity of the Tribes or its officers and employees is expressly, specifically and unequivocally waived by and in a Tulalip tribal or federal statute, a duly executed contract approved by the Tulalip Board of Directors, or a duly enacted ordinance or resolution of the Tulalip Board of Directors.

The threshold question in a matter where the Defendants assert sovereign immunity from suit is whether the named Defendants were within the group of individuals or entities protected by TTO 49 § 1.2.2.Here the four remaining Defendants are members of the Board of Directors, and, as such, are explicitly referenced in the ordinance.

The ordinance is an absolute bar to suit against tribal officers when acting in their official capacities....