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Douglas Indian Association v. Central Council of Tlingit and Haida Indian Tribes of Alaska

Supreme Court of Alaska

September 8, 2017

DOUGLAS INDIAN ASSOCIATION, Appellant,
v.
CENTRAL COUNCIL OF TLINGIT AND HAIDA INDIAN TRIBES OF ALASKA; RICHARD PETERSON, individually and in his capacity as President of the Central Council of Tlingit and Haida Indian Tribes of Alaska; and WILLIAM WARE, individually and in his capacity as Tribal Transportation Manager of the Central Council of Tlingit and Haida Indian Tribes of Alaska, Appellees.

         Appeal from the Superior Court of the State of Alaska, First Judicial District, Superior Court No. 1JU-15-00625 CI Juneau, Louis J. Menendez, Judge.

          Lael A. Harrison, Faulkner Banfield, P.C., Juneau, for Appellant.

          Richard D. Monkman and Kendri M. M. Cesar, Sonosky, Chambers, Sachse, Miller & Munson, LLP, Juneau, for Appellees.

          Nicholas Gasca, Tanana Chiefs Conference, Fairbanks, for Amicus Curiae Tanana Chiefs Conference.

          Before: Stowers, ChiefJustice, Winfree, Bolger, and Carney, Justices.[Maassen, Justice, not participating.]

          OPINION

          BOLGER, Justice.

         I. INTRODUCTION

         Under the doctrine of tribal sovereign immunity, an Indian tribe is immune from suit unless Congress has authorized the suit or the tribe has waived its immunity. Relying on this doctrine, the superior court dismissed a complaint by Douglas Indian Association against Central Council of Tlingit and Haida Indian Tribes of Alaska and two Central Council officials. Douglas now argues that the superior court's action was premature because sovereign immunity is an affirmative defense that should be resolved following discovery. But the federal courts recognize that tribal sovereign immunity is a jurisdictional bar that may be asserted at any time, and we agree with this basic principle. Immunity is a core aspect of tribal sovereignty that deprives our courts of jurisdiction when properly asserted. We therefore affirm the superior court's order dismissing the complaint.

         II. FACTS AND PROCEEDINGS

         A. Facts

         Douglas alleges the following facts in its complaint. Both Douglas and Central Council are federally recognized Indian tribes located in Juneau. Between 2005 and 2012, both tribes were eligible to receive tribal transportation funds from the federal government. Central Council formed a consortium to administer these funds on behalf of individual tribes. Douglas accepted Central Council's invitation to join the consortium, and the two tribes signed a Memorandum of Agreement in August 2006.

         Douglas attached the Agreement as an exhibit to its complaint. The Agreement provided that upon Douglas's withdrawal from the consortium, Douglas's funds would be administered in accordance with the federal regulations that govern such withdrawals.[1] Both Douglas and Central Council also expressly reserved their sovereign immunity from suit.

         According to Douglas's complaint, the consortium did not undertake any of Douglas's transportation projects or use any of Douglas's funds for Douglas's benefit. Central Council representatives told Douglas that the funds were maintained in a separate savings account and had not been expended. Douglas withdrew from the consortium in January 2012 and asked Central Council to remit Douglas's funds, but Central Council neither remitted the funds nor provided an accounting.

         B. Proceedings

         In April 2015 Douglas filed suit against Central Council and two of its tribal officials, President Richard Peterson and Tribal Transportation Manager William Ware, in their individual and official capacities. Douglas sought a declaration that Central Council owed a fiduciary duty to Douglas under a trust or agency theory and requested injunctive relief against the tribal officials "enjoining any action inconsistent with the court's declaratory judgment." Douglas also sought specific performance and damages from Central Council. Nowhere in its complaint did Douglas allege that Central Council had waived its sovereign immunity or Congress had abrogated it. Nor did Douglas make any allegations about Peterson and Ware other than to state their names and titles.

         Central Council resisted Douglas's attempts to engage in discovery and filed a motion to dismiss for lack of subject matter jurisdiction under Alaska Civil Rule 12(b)(1), asserting tribal sovereign immunity. Douglas opposed the motion, arguing that sovereign immunity is an affirmative defense that can be raised only after discovery in an Alaska Civil Rule 56 motion for summary judgment, not a jurisdictional bar that can be raised via Rule 12(b)(1); that it was at least entitled to jurisdictional discovery; and that sovereign immunity did not protect the tribal officials from suit.

         The superior court granted Central Council's motion to dismiss, and Douglas appeals. Tanana Chiefs Conference filed an amicus curiae brief in support of Central Council's position.

         III. STANDARD OF REVIEW

         We review issues of sovereign immunity de novo.[2] We also "review de novo a superior court's decision to dismiss a complaint for lack of subject matter jurisdiction."[3] "In exercising our independent judgment, we will adopt the rule of law that is most persuasive in light of precedent, reason, and policy."[4]

         "We review the denial of a motion to compel discovery for abuse of discretion."[5] "An abuse of discretion occurs when [a decision] is 'arbitrary, capricious, manifestly unreasonable, or improperly motivated.' "[6]

         IV. DISCUSSION

         Douglas renews its arguments on appeal. First, Douglas argues that under Alaska law, tribal sovereign immunity, like state sovereign immunity, is an affirmative defense rather than a jurisdictional bar, meaning that it should be "raised in a Rule 56 motion for summary judgment after discovery" rather than a Rule 12(b)(1) motion to dismiss. Second, Douglas argues that even if tribal sovereign immunity is a jurisdictional bar, the superior court should have granted Douglas's request for jurisdictional discovery as to whether Central Council may have waived its sovereign immunity or whether the tribal officials may have acted ultra vires. Finally, Douglas argues that even if Central Council is protected by sovereign immunity, Douglas should still be permitted to sue Peterson and Ware, the two tribal officials, for declaratory and injunctive relief.

         A. Tribal Sovereign Immunity Is A Jurisdictional Bar.

         The parties do not dispute that Central Council is a federally recognized tribe, that federally recognized tribes are entitled to tribal sovereign immunity, and that under federal law, tribal sovereign immunity may be raised prior to discovery in a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Their dispute is whether Alaska should follow this federal rule. For the reasons discussed below, we hold that under Alaska law, tribal sovereign immunity is a jurisdictional bar that may be invoked by a sovereign defendant in a Rule 12(b)(1) motion to dismiss.

         Under the doctrine of tribal sovereign immunity, an Indian tribe is immune from suit unless Congress has authorized the suit or the tribe has waived its immunity.[7]This common law immunity is "[a]mong the core aspects of sovereignty" possessed by tribes and "traditionally enjoyed by sovereign powers."[8] In Michigan v. Bay Mills Indian Community, the U.S. Supreme Court recently reaffirmed that it has "time and again treated the 'doctrine of tribal immunity [as] settled law' and dismissed any suit against a tribe absent congressional authorization (or a waiver)."[9]

         "[T]ribal immunity 'is a matter of federal law and is not subject to diminution by the States.' "[10] We have long held that federally recognized tribes in Alaska are sovereign entities entitled to tribal sovereign immunity in Alaska state court.[11]We have explained that this immunity is "motivated in significant part by the need to ensure that tribal assets are used as the tribe wishes, without threat from litigation."[12] We have thus affirmed a superior court's dismissal of a suit against an Alaska Native village when the village appeared on the U.S. Department of the Interior's list of federally recognized tribes and raised tribal sovereign immunity as a defense.[13]

         But we have deferred the question "whether a tribe's sovereign immunity is merely an affirmative defense or a bar to jurisdiction."[14] Although the U.S. Supreme Court has not addressed this question directly, many federal circuit courts have indicated that tribal sovereign immunity is properly invoked as a jurisdictional bar under the federal version[15] of Rule 12(b)(1).[16] Douglas nonetheless argues that Alaska should follow a different rule. Douglas asks us to treat tribal sovereign immunity as an affirmative defense "properly raised in a Rule 56 motion for summary judgment after discovery."[17]

         Douglas relies primarily on our decision in Sea Hawk Seafoods v. State.[18] In Sea Hawk Seafoods, a fish processor sued the State of Alaska for fraudulent conveyance and conspiracy.[19] After almost ten years of litigation, the State raised the defense of sovereign immunity.[20] We rejected the State's argument that sovereign immunity was a jurisdictional bar and determined that "the State's claim of sovereign immunity is properly characterized as an affirmative defense."[21] We explained that sovereign immunity is " 'an avoidance' under [Alaska] Civil Rule 8(c)" because, like an avoidance, "[s]overeign immunity . . . bars a person from bringing a claim against the State and plaintiffs are not required to show that they may sue the State in order to proceed with their claims."[22] We concluded that the proper inquiry for determining if the State had waived its immunity was "whether the adverse party is prejudiced by the moving party's delay in raising the defense."[23]

         Douglas argues that Sea Hawk Seafoods states a general rule of Alaska procedure that applies to all forms of sovereign immunity, including tribal sovereign immunity. We disagree. Douglas minimizes the "few, limited, distinctions between state and tribal sovereign immunity" as relating primarily to the states' participation in the Constitutional Convention. But Douglas ignores the specific situation in Alaska: Our state constitution expressly provides for suits against the State.[24] We cited this provision at the beginning of our discussion in Sea Hawk Seafoods, noting that criticism of sovereign immunity led some states to "consent[] to be sued under certain conditions."[25]We have thus stated that in claims against the State, "liability is the rule, immunity the exception, "[26] and we have placed the burden of showing a presumption of immunity on a state instrumentality wishing to invoke it.[27] Our statements describing the contours of Alaska's sovereign immunity under Alaska state law are informed by state constitutional underpinnings and policies that are not present when analyzing the federal doctrine of tribal sovereign immunity.

         We instead take guidance from federal law and the Ninth Circuit's analysis in Pistor v. Garcia. [28] The Pistor court recognized that subject matter jurisdiction is traditionally understood to refer to "the courts' statutory or constitutional power to adjudicate the case."[29] When the court lacks subject matter jurisdiction, " 'the court must dismiss the complaint, ' sua sponte if necessary."[30] "Sovereign immunity's 'quasi-jurisdictional . . . nature, ' by contrast, means that '[i]t may be forfeited where the [sovereign] fails to assert it . . . .' "[31] But even though "sovereign immunity is not 'jurisdictional in the sense that it must be raised and decided by this Court on its own motion, ' " it is jurisdictional "in the sense that it 'may be asserted at any time.' "[32] "Although sovereign immunityis only quasi-jurisdictional innature, Rule12(b)(1) is still a proper vehicle for invoking sovereign immunity from suit."[33]

         We find this analysis persuasive with respect to tribal sovereign immunity, as well as consistent with our precedent. Tribal sovereign immunity may be termed "quasi-jurisdictional" in Alaska because, as we have previously recognized, "subject matter jurisdiction is not waivable and can even be raised at a very late stage in the litigation, "[34] but "an Indian tribe may waive its sovereign immunity" from suit.[35]Nonetheless, when a tribal defendant invokes sovereign immunity in an appropriate manner and the tribe is entitled to such immunity, our courts "may not exercise jurisdiction."[36] Because tribal sovereign immunity serves as a jurisdictional bar under federal law, we follow the Ninth Circuit in concluding that a ...


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