--- Am. Tribal Law ----, 2019 WL 1769099 (Colville C.A.), 7 CTCR 31, 7 CTCR 31
Colville Tribal Court of Appeals.
Patricia Davis GIBSON, Appellant,
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP18-011
Decided March 19, 2019
Trial Court Case No. CV-OC-2016-39151
Attorneys and Law Firms
Mark J. Carroll, Attorney, for Appellant.
Peter Eberland, Attorney, for Appellee.
Before Presiding Justice Michael Taylor, Justice David C. Bonga, and Justice R. John Sloan Jr.
The “Civil Rights Act of the Confederated Tribes of Colville Reservation”, Chapter 1-5 of the Colville Tribal Code (the Act), provides a method within the structure of law of the Colville Tribes to protect the civil rights of those subject to tribal jurisdiction. The rights protected by the Act are specified in CTC § 1-5-2. All court actions to protect rights set out in the Act are limited to claims for relief brought in the courts of the Colville Tribes. CTC §§ 1-5-3, 1-5-4, 1-5-5, and 1-5-8.
In order to enforce the rights set out in the Act, a complainant may select one or both of two forms of action. First, a complaint may be brought for declaratory and injunctive relief against “any executive officer or employee” of the Tribes or any employee or officer of “any governmental agency acting within the jurisdiction” of the Tribal Court. CTC § 1-5-3. For such actions the sovereign immunity of the Tribes is specifically waived by CTC § 1-5-5 in the Tribal Court for the limited purpose of granting the declaratory and injunctive relief provided for in CTC § 1-5-3. However, in CTC § 1-5-5 immunity is specifically not waived “with regard to damages, court costs, and attorney fees.”
The second form of action to protect civil rights set out in CTC § 1-5-2 is established by the provisions of CTC § 1-5-8 and is the central focus of this Appeal.
Appellant, a former tribal employee, filed an action for damages against the Confederated Tribes of Colville Reservation claiming a right to sue pursuant to Colville Tribal Law and Order Code (CTLOC) § 1-5-8. In her complaint she alleged sexual harassment; discriminatory conduct; infliction of emotional distress; and violation of tribal employment policies.
In the Tribal Court and here the Tribes timely presented a number of defenses, both legal and factual. Among the defenses pleaded is the unwaived sovereign immunity of the Tribes. Sovereign immunity is an affirmative defense. Swan v. Colville Business Council, 11 CCAR 83, 6 CTCR 20 (2014). Affirmative defenses are generally waived if not timely pleaded. Davidson v. Hansen, 954 P.2nd 1327, 135 Wn.2d 112 (Wash. 1998).
In dismissing Appellant’s complaint the Tribal Court found the complaint barred in total by the unwaived immunity of the Tribes. Appellant argues that CTC § 1-5-8 permits her action for money damages because that section of the Act specifically allows suit for damages against the Tribes up to a maximum amount available from the current policy of insurance purchased by the Tribes. In the Court record is a copy of the current policy insuring the Tribes against various liabilities, which policy includes a clause prohibiting the insurer from raising the defense of sovereign immunity unless directed to do so by the Tribes. Also in the record is a letter signed by an agent of the insurer recognizing potential coverage under the policy, assuming proof, of some of Appellant’s claims.
STANDARD OF REVIEW
In this Appeal we are not asked to review the factual basis of Appellant’s claims of harassment and discrimination, but rather whether this suit may go forward after being dismissed in total by the Tribal Court on the ground that the Tribes and a tribal agency is protected by sovereign immunity. This is an issue of law to be reviewed de novo. Confederated Tribes v. Naff, 2 CCAR 50, 2 CTCR 08 (1995).
Section 1-5-8 states as follows:
Notwithstanding any other provision of this Chapter or the Colville Tribal Code; with respect to any claim made under this Chapter, in the Courts of the Confederated Tribes, for which the Tribes carries an active and enforceable policy of liability insurance, suit may be brought for damages up to the full available amount of the coverage provided in the insurance policy; provided, no judgment on any such claim may be for more than the amount of insurance carried by the Tribes; and further provided, any such judgment against the Tribes may only be satisfied pursuant to the provisions of the policy or policies of insurance then in effect.
(Chapter 1-5 Adopted 2/4/88, Resolution 1988-76)
We proceed to review, as did the Tribal Court, the relevant language of Section 1-5-8. The first phrase of § 1-5-8 is “Notwithstanding any other provision of this Chapter or the Colville Tribal Code;”... “Notwithstanding” is a powerful word, meaning despite, in spite of, regardless of. For example, a judgment notwithstanding the verdict, means that the verdict of the jury was “guilty” but the judgment of the court was acquittal. The plain meaning of “Notwithstanding” is “despite” (Merriam Webster’s Collegiate Dictionary, 10th ed. 1995); “in spite of, regardless of.” (Webster’s Collegiate Thesaurus, 1975); “irrespective of” (Black’s Law Dictionary, current online edition).
The word “notwithstanding” recognizes the existence of some barrier, but requires that the barrier be disregarded. The Colville Code provides a list of definitions CTC § 1-1-350-366 but requires that when a word used in the Code is not defined in the Code such words be given their common meaning. CTC § 1-1-7.
Applying this first phrase of CTC § 1-5-8 to circumstances of this Appeal we find that the “Notwithstanding” phrase provides a limited waiver of tribal immunity as set out in CTC §§ 1-1-6 and 1-5-5 and elsewhere in the Code, for violation of rights enumerated in CTC § 1-5-2. And thus, if the immunity defense is not raised by the Tribes, or by the Tribes directing their insurer, the Tribal Court may proceed to adjudicate issues before it without regard to the immunity barrier.
We conclude that the language of CTC § 1-5-8 provides a waiver of sovereign immunity provisions as set out in the Colville Tribal Code. CTC §§ 1-1-6, 1-1-5. A waiver of statutory immunity provisions, however, does not end our review of the issue. Our cases provide us with the understanding that in Colville tribal law the doctrine of sovereign immunity has at least two facets, both equally powerful. In Swan v. Colville Business Council, 11 CCAR 83, 6 CTCR 20 (2014), we said “the doctrine of sovereign immunity has long been incorporated in both our statutory and case laws.” In Colville Tribal Enterprise v. Orr, 5 CCAR 01, 3 CTCR 05 (1999), we said “The Tribes have also codified its inherent power of sovereign immunity...” In Stone v. Somday, 1 CCAR 09, 1 CTCR 14 (1984), we said “the...Tribes codified this well-established concept...underscores the validity of its application in...suits against the Tribe.” To underscore something, that thing must be already in existence. That thing is the inherent or case law recognized power of the sovereign to consent, or not, to suits against itself.
Here, in CTC § 1-5-8 there is a waiver of the statutory formulation of sovereign immunity set out in the CTLOC, but no waiver of the inherent power of immunity residing in the existence of the Tribes as a sovereign nation and recognized in the common law of the Tribes, and of that of the United States, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978), and the states as well. The codification of immunity in the Tribal Code does nothing to limit or weaken tribal sovereign immunity, but gives notice to the membership and the public of the existence of the doctrine.
Thus, if immunity is raised as a defense in claims brought under CTC § 1-5-8, where insurance coverage is available, it is a complete defense unless a clear waiver of common law immunity is otherwise shown. This must be the case even where the tribal treasury would be protected from financial loss by a policy of insurance for which the Tribes has fully paid.
The dismissal by the Tribal Court of this action is affirmed upon the grounds set out in this opinion.1
--- Am. Tribal Law ----, 2019 WL 1769099, 7 CTCR 31, 7 CTCR 31
The panel has determined that this Appeal may be decided without oral argument. All written submissions have been considered.