Wright v. Colville Tribal Enterprise Corp.

• Decision Date: 23 May 2005
• Docket Number: No. 53950-7-I.,53950-7-I.
• Parties: Christopher WRIGHT, an individual, Appellant, v. COLVILLE TRIBAL ENTERPRISE CORPORATION, a foreign corporation; Colville Tribal Services Corporation, a foreign corporation; and Don Braman, an individual, Respondents.
• Court: Washington Court of Appeals

111 P.3d 1244

127 Wn. App. 644

127 Wash. App. 644

Christopher WRIGHT, an individual, Appellant, v. COLVILLE TRIBAL ENTERPRISE CORPORATION, a foreign corporation; Colville Tribal Services Corporation, a foreign corporation; and Don Braman, an individual, Respondents.

No. 53950-7-I.

Court of Appeals of Washington, Division 1.

May 23, 2005.

Reconsideration Denied July 13, 2005.

Breean Lawrence Beggs, Center for Justice, Spokane, WA, for Appellant.

Michael Anthony Griffin, M. Katheryn Bradley, Wayne W. Hansen, Jackson Lewis LLP, Seattle, WA, Bruce Edward Didesch, Didesch & Associates, Mead, WA, for Respondents.

James Rittenhouse Bellis, Attorney at Law, Nespelem, WA, for Amicus Curiae Confederated Tribes of the Colville Reservation.

APPELWICK, J.

¶ 1 Christopher Wright worked as a pipe layer and heavy equipment operator in Oak Harbor, Washington, for Colville Tribal Services Corporation (CTSC). He claims that he was repeatedly harassed and intimidated by his Native American coworkers, and that he quit after his complaints to management resulted in no change. Wright sued his supervisor, CTSC, and CTSC's parent corporation for racial discrimination and harassment, negligent supervision, and negligent infliction of emotional distress in state court. Respondents moved to dismiss for lack of subject matter jurisdiction. They alleged that Wright had entered into a consensual relationship with the Colville Tribe and that his claims would have a direct effect on the political integrity and the economic security of the Tribe. Respondents also claimed tribal sovereign immunity. The trial court granted the motion to dismiss. Because the alleged conduct occurred off the reservation, we find that the state court did have subject matter jurisdiction. We also find that, because CTEC and CTSC are organized primarily for commercial purposes and their actions do not bind the Tribe, they do not enjoy tribal sovereign immunity. We reverse and remand.

FACTS

¶ 2 Christopher Wright was hired by Colville Tribal Services Corporation (CTSC) in July 2002 as a pipe-layer and equipment operator. CTSC was constructing a waterline for the United States Navy's residential housing development in Oak Harbor, Washington. Wright's work for CTSC was confined to this location.

¶ 3 CTSC is a wholly owned subsidiary of Colville Tribal Enterprise Corporation (CTEC). Both CTEC and CTSC were created by the Colville Business Council (the Council) under the Colville Tribal Governmental Corporation Act. The Council is a group of 14 Colville tribe members, and is the governing body of the Confederated Tribes of the Colville Reservation (the Tribe). The Council members are the shareholders of CTEC, acting in their representative capacity on behalf of the Tribe. CTEC's primary responsibility is to oversee the 14 tribal business enterprises, including CTSC. Three of the 14 enterprises are casinos, and 80 percent of the casino net income goes directly to the Tribe. But only twenty-five percent of CTEC's non-casino net income is distributed directly to the Tribe; the remaining funds cover CTEC's capital expenditures and business development. The Tribe is not liable for CTEC's debts and obligations.

¶ 4 Wright alleges that he was repeatedly and progressively harassed by his Native American coworkers because of his race. He claims that he was called a "white bitch" and that some of his Native American coworkers drove his car without his permission. Wright states that he complained verbally to Respondent Don Braman, his supervisor, as well as in writing to management. Wright claims that at an October 2002 meeting with the coworkers in question and management, he was assured that the behavior would not be tolerated and that individuals who used racial slurs would be fired. However, Wright asserts that the harassment continued after the meeting, with Braman's full knowledge. Wright claims that he was finally forced to resign in February 2003 because he could not bear the harassment and intimidation any longer and realized his employer was not going to correct it.

¶ 5 Wright sued CTEC, CTSC, and Braman in Island County Superior Court in November 2003. Wright alleged race discrimination, racial harassment and hostile work environment under chapter 49.60 RCW. He also alleged negligent supervision and negligent infliction of emotional distress. Respondents moved to dismiss the action under CR 12(b)(1), arguing that the trial court lacked subject matter jurisdiction and that the Respondents were immune from suit due to tribal sovereign immunity. The trial court found that it did not have subject matter jurisdiction and granted the Respondents' motion. The trial court also noted that the argument for sovereign immunity was "very compelling." Wright appeals.

ANALYSIS

I. Assignments of Error

¶ 6 Respondents note that Wright has failed to present specific assignments of error, in violation of RAP 10.3(a)(3). They also note that Wright did not state the specific trial court actions to which he was assigning error. In addition, Respondents claim that Wright's failure to assign error or provide briefing regarding three particular issues the trial court ruled on precludes this court from considering these issues on appeal. Specifically, those trial court actions were (1) the dismissal of claims against Braman, (2) rejection of Wright's argument that the corporate defendants waived sovereign immunity, and (3) rejection of Wright's argument that he was entitled to conduct discovery relating to jurisdiction.

¶ 7 Although Respondents do not directly claim that Wright's failure to present specific assignments of error prevents us from reaching the merits of the case, we shall nonetheless address the issue, in the interests of clarity. RAP 10.3(a)(3) provides that the appellant's brief should contain "[a] separate concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error." Wright's assignment of error consists of essentially one sentence: "The Island County Superior Court of Washington erred as a matter of law when it granted Respondent's [CR] 12(b)(6)¹ motion to dismiss on behalf of all respondents." Wright did not separately list out each error that he claims the trial court made, nor did he include issues pertaining to his assignment of error. However, non-compliance with the Rules of Appellate Procedure does not necessarily doom a petitioner:

[A]n appellate court may exercise its discretion to consider cases and issues on their merits. This is true despite one or more technical flaws in an appellant's compliance with the Rules of Appellate Procedure. This discretion, moreover, should normally be exercised unless there are compelling reasons not to do so. In a case where the nature of the appeal is clear and the relevant issues are argued in the body of the brief and citations are supplied so that the Court is not greatly inconvenienced and the respondent is not prejudiced, there is no compelling reason for the appellate court not to exercise its discretion to consider the merits of the case or issue.

State v. Olson, 126 Wash.2d 315, 323, 893 P.2d 629 (1995). Here, although Wright's assignment of error is extremely general, the relevant issues are clear from the body of his brief. Furthermore, Respondents have not been prejudiced by Wright's general assignment of error; Respondents were able to respond to every issue raised in Wright's brief. Thus, we will address Wright's appeal on the merits.

¶ 8 Respondents are correct that Wright has not addressed on appeal his claim that the corporate defendants waived immunity and his claim that he was entitled to conduct discovery. These issues are not briefed, and as a result, we do not consider them. State v. Dennison, 115 Wash.2d 609, 629, 801 P.2d 193 (1990).

¶ 9 However, we will consider the issue of the claims against Braman, because the issues that Wright has discussed in his brief all pertain to the dismissal of the claims against Braman. The subject matter jurisdiction issue pertains to Braman, and Wright does specifically argue that Braman does not enjoy tribal sovereign immunity. Further, lack of subject matter jurisdiction and tribal sovereign immunity are both defenses that Respondents argued applied to Braman in the CR 12(b)(1) motion. As noted, a court may exercise its discretion to consider a case on its merits if the issues have been set forth in the brief and the other parties have not been prejudiced. Respondents have had adequate opportunity to address the issues. Thus, we will consider the dismissal of the claims against Braman despite Wright's failure to specifically assign error to the issue.

II. Subject Matter Jurisdiction

¶ 10 Wright claims that the trial court erred in dismissing the case for lack of subject matter jurisdiction. Wright asserts that the powers of an Indian tribe do not generally extend to nonmembers, and that this case does not fall within either of the two recognized exceptions to this general rule discussed below. Respondents counter that both of the exceptions to this general rule apply. We find that the exceptions are inapplicable because the activity at issue occurred entirely off the Colville reservation, and that the trial court accordingly erred in dismissing due to lack of subject matter jurisdiction.

¶ 11 Under CR 82.5(a), a superior court must dismiss an action under CR 12(b)(1) if exclusive jurisdiction rests with a tribal court:

Where an action is brought in the superior court of any county of this state, and where, under the Laws of the United States, exclusive jurisdiction over the matter in controversy has been granted or reserved to an Indian tribal court of a federally recognized Indian tribe, the superior court shall, upon motion of a party or upon its own motion, dismiss such action pursuant to CR 12(b)(1), unless transfer is required under federal law.

CR 12(b)(1) provides...