Candee Washington, App v. Director Of The Department Of Licensing, Resps.
75670-2
| Wash. Ct. App. | Jun 26, 2017Background
- Candee Washington, a non-tribal member, did not contest a Swinomish tribal-court in rem civil forfeiture of her vehicle under Swinomish Tribal Code § 4-10.050. The Tribe obtained title and the Washington State Department of Licensing issued a new certificate of title.
- Washington sued the Director of the Department of Licensing and unnamed Swinomish tribal officers in Skagit County, seeking class relief and damages under 42 U.S.C. § 1983.
- The Department moved to dismiss under CR 19 for failure to join the Swinomish Tribe; the trial court granted dismissal as the Tribe was an indispensable party.
- Washington appealed; the Supreme Court transferred the appeal to Division One. She argued (1) the Tribe or its officers waived sovereign immunity under RCW 10.92.020(2)(a)(ii) or otherwise acted beyond authority, (2) the case should be remanded for factual development on an ISDA-related waiver, and (3) she was entitled to attorney fees.
- The Court of Appeals reviewed CR 19 joinder principles, concluded tribal sovereign immunity barred joinder and the Tribe was indispensable, denied remand under RAP 9.11 for further factual development (ISDA waiver), and denied attorney fees.
Issues
| Issue | Washington's Argument | Department/Tribe's Argument | Held |
|---|---|---|---|
| Whether the Swinomish Tribe is a necessary and joinable party under CR 19 | Tribe is necessary but waived immunity because officers acted under state authority (RCW 10.92.020 waiver) or outside authority | Tribe retains sovereign immunity; joinder is not feasible because no applicable waiver is shown | Tribe is necessary but joinder not feasible: sovereign immunity applies; waiver under RCW 10.92.020 not shown |
| Whether tribal officers can be treated as defendants despite sovereign immunity (claims against officers in individual capacity) | Officers acted outside scope of tribal authority so immunity unavailable; Lewis v. Clarke supports suing employees individually | Claims challenge ongoing tribal policy (forfeiture authority) and thus seek relief effectively against the Tribe; naming officers cannot evade immunity | Claims seek to enjoin an ongoing tribal practice; immunity bars joinder of Tribe and naming officers does not avoid sovereign immunity |
| Whether the Tribe is indispensable under CR 19(b) so the case must be dismissed if joinder is not feasible | Proceed against Department alone (e.g., enjoin title changes); Department insurers or procedures not immune | Judgment would substantially prejudice the Tribe; alternative relief inadequate; Washington had alternative remedies in tribal court | Tribe is indispensable; CR 19(b) factors favor dismissal because absent Tribe would be prejudiced and adequate relief cannot be fashioned without it |
| Whether remand (or additional fact development) is warranted under RAP 9.11 to pursue an ISDA-based waiver of immunity | Remand needed to develop facts showing an ISDA/insurance waiver of sovereign immunity might apply | Washington failed to satisfy RAP 9.11 requirements; new ISDA theory not raised below | Motion to modify/ remand denied because RAP 9.11's elements (especially excusing failure to raise earlier) were not met |
Key Cases Cited
- Auto. United Trades Org. v. State, 175 Wn.2d 214 (discusses CR 19 three-step joinder analysis and sovereign immunity issues)
- Wright v. Colville Tribal Enter. Corp., 159 Wn.2d 108 (tribal sovereign immunity principles)
- Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (tribal criminal jurisdiction over nonmembers limited)
- Montana v. United States, 450 U.S. 544 (exceptions to tribal civil jurisdiction over nonmembers)
- United States v. Ursery, 518 U.S. 267 (forfeitures are civil in nature)
- Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007 (tribal sovereign immunity bars suits challenging tribal authority over non-Indians)
- Bressi v. Ford, 575 F.3d 891 (tribal officers acting under state authority can be treated differently when enforcing state law)
- Maxwell v. County of San Diego, 708 F.3d 1075 (individual-capacity suits against tribal employees in isolated conduct contexts and immunity considerations)
- Pistor v. Garcia, 791 F.3d 1104 (similar to Maxwell; individual acts and immunity analysis)
- Cook v. AVI Casino Enters., Inc., 548 F.3d 718 (cannot evade tribal immunity by naming tribal officials instead of the tribe)
- Lewis v. Clarke, 137 S. Ct. 1285 (tribal employee sued individually may not invoke sovereign immunity when judgment will not operate against the Tribe)
- State v. Catlett, 133 Wn.2d 355 (state law recognition that forfeiture proceedings are civil)