--- Am. Tribal Law ----, 2021 WL 4268135 (Colville C.A.), 15 CCAR 19, 8 CTCR 06
Colville Tribal Court of Appeals.
Joe PEONE, Appellant,
COLVILLE CONFEDERATED TRIBES, et. al, Appellees.
Case No. AP17-005
Decided August 9, 2021.
Trial Court Case No. CV-OC-2015-38307
This matter came before the Court on an Appeal filed on August 11, 2017 in which Joe Peone, Appellant (Appellant) timely appealed an Order on Motion for Summary Judgment entered by the Trial Court on July 17, 2017 against him and for the above-named Appellees. Appellant challenges the Trial Court’s findings that his claims are (1) barred by sovereign immunity; and (2) that he doesn’t have an actionable claim under the Tribes’ Civil Rights Act, CTC, Chapter 1-5. Based on the reasoning below, we affirm the Trial Court’s Order.
Appellant was terminated from his position as Program Director of the Colville Tribes Fish and Wildlife Department on November 28, 2012. A challenge to the basis for his termination has been in the Courts since this time. He has been before the Administrative Court, the Trial Court and this Court, including another case before this Court on the same issues.1 Appellees’ filed Motion for Summary Judgment, which the Trial Court granted on July 17, 2017. The Trial Court held first that sovereign immunity barred the claims of Appellant, and that there were no actionable claims against Dana Cleveland and Francis Somday in their individual capacities.
The Trial Court further held that the Tribes’ Civil Rights Statute, CTC, Chapter 5-1, provides a limited waiver of sovereign immunity for declaratory relief only for violations of CTC§ 1-5-2 (a)-(j). It further held that monetary remedies under CTC § 1-5-8 were limited to violations under CTC§ 1-5-2 (a)-(j).
As for Appellant’s cause of action A, Unlawful Retaliation, the Trial Court held it was barred by the terms of limitations on such actions in the CTA Employment Policy Manual, (EPM) which required Appellant to file his request for relief within one (1) year of his termination. He was terminated on November 29, 2012, and he filed his claim for wrongful termination on November 15, 2015. The Tribes, the Trial Court held, adopted the EPM and its limited waiver “must be strictly construed and enforced.” Order on Motion for Summary Judgment, at page 3.
Further, the Trial Court held that as for Appellant’s claims for relief regarding alleged procedural defects in the actions and/or inactions of Appellees’ in his dismissal were not supported by sufficient allegations to establish a civil rights violation, and, therefore were barred by sovereign immunity. Finally, as for cause of action F, a claim for a due process violation, the Trial Court held was still pending under CV-OC-2013-36088, and AP12-08, and dismissed it from this case.
1. Did the Trial Court apply the correct standard for summary judgment?
2. Did the Trial Court apply the correct standard for sovereign immunity under the Tribes’ Civil Rights Statute, CTC, Chapter 1-5?
STANDARD OF REVIEW
Both issues are questions of law. We review de novo. Naff v. CCT, 2 CCAR 50 (1995).
The accepted standard for ruling on motions for summary judgment is whether there is any genuine issue of material fact that supports going forward with the cause of action. The moving party has the first burden of proof on this issue, with deference given to the non-moving party. The burden then shifts to the non-moving party if the moving party has established sufficient argument to grant the motion. The Court reviews all the pleadings filed at the time, including briefs and legal memoranda on the issue of genuine issues of material facts.
Appellant has cited several Court of Appeals cases to support his claim that a summary judgment should not have been granted. However, none of the cases he has cited are relevant to the issue. The Trial Court held that Appellant made assertions to his causes of action but did not support them with sufficient legal authorities. Assertions alone are insufficient to meet his burden of proof. Upon review of all that the Trial Court had before it, we agree with the Trial Court’s decision. We affirm.
SOVEREIGN IMMUNITY AND THE TRIBAL CIVIL RIGHTS ACT
Appellant seeks to recover alleged damages under CTC, Chapter 5-1, for his termination from employment with the Colville Tribal Fish and Wildlife Department. He has been seeking this remedy since his termination in 2012, and in two separate court cases, both based on the same issues. The crux of his arguments are that (1) he was wrongfully terminated in violation of his due process rights under CTC § 1-5-2; (2) the Tribes has waived sovereign immunity in such instances under CTC §§ 1-5-3 and 5; and (3) although general relief is declaratory and/or injunctive relief, CTC § 1-5-5 and 8 allow for some monetary relief, under certain circumstances.
Appellees first claim that the general principles of sovereign immunity bar Appellant’s claims. Appellees do recognize that CTC Chapter 5-1 allows for a limited waiver of its sovereign immunity, but says the limited waiver is for the specific grounds set out in CTC § 1-5-2 (a)-(j), and that none of the claims made by Appellant are found in this sections.
We have addressed the issue of recouping monetary damages under the Tribes’ insurance policies through the Civil Rights Statute before but have not yet had a case in which we have had to set specific standards. CTEC v. Orr, 5 CCAR 1 (1998). The facts alleged in the several causes of action brought in this case do not necessitate a ruling to set such standards.
As stated earlier, some of the causes of action are barred by the time limitations set out in the EPM, as adopted by the Tribes; some are still being reviewed under a case filed before this case, which are still supposed to be under review by the Administrative Judge and/or Trial Court (AP12-08); and some of them are not CTC § 1-5-2 claims.
As Appellees point out, Appellant is arguing that CTC § 1-5-8 is a waiver of any claim against the Tribes and its officials. It only is a limited waiver for violations of Chapter 1-5, not for any general claim. Appellant seems to bootstrap any and all his claims to CTC § 1-5-2 in an attempt to access the Tribes’ insurance policy. The Trial Court ruled correctly that sovereign immunity barred his actions to do so. We affirm.
What is not answered by this opinion is what are the parameters of claims that can be made under CTC Chapter 1-5. We don’t necessarily accept the Trial Court’s findings that these claims are as restrictive as it found. We will wait for the appropriate case to further define what rights are protected, what rights of actions are reviewable, and when does the limited waiver of sovereign immunity apply.
Based on the foregoing, now, therefore
It is ORDERED the Trial Court’s Order of July 17, 2017 on granting Appellees’ motion for summary judgment is AFFIRMED and this matter is REMANDED to the Trial Court.
AP12-08. Apparently in this case the matter was stayed and remanded to the Trial Court to allow Appellant to exhaust his Tribal Court remedies as the case was going to be given another administrative hearing. Peone’s spokesperson conceded at the Oral Arguments that the case was still pending when he filed this case.