*1 May En Banc. 45646. 1979.] [No. Clipper Respondent, Ltd., Products,
North Sea Defendants, Company, al, et Seafoods Petitioner. Council, Tribal Johnsen, A. L. Harry petitioner. Daniel Raas and O'Connor, & McCush, Thompson Kingsbury, Ludwigson, respondent. Hayes, by Craig Hayes,
£37 Richard Reich Allen Sanders behalf Muckle- Tribe, shoot Indian amici curiae. presents question
This case whether by federally recognized possessed from suit *2 immunity garnishment Indian from tribes includes actions. immunity Also is the tribal included issue whether against garnishment is waived when a tribe conducts a enterprise commercial the boundaries the reser- outside vation. immunity immunity
We hold that tribal includes garnishment immunity actions, and has not been that by In waived respects, the commercial tribe's activities. these court,
we reverse the con- trial which held the trary. procedural history briefly
The of this case can be sum- marized as follows: February garnishment 4, 1977,
On a writ was issued Superior County paming Court for Whatcom Processing "Lummi Council Tribal Lummi Plant" and/or garnishee. as The writ ordered the to withhold wages employees. of one of its name of The true "Lummi Tribal Council" the Lummi Indian is Business (LIBC), governing body Council which is of the Lummi Processing actually Indian Tribe. The "Lummi is Plant" (LISCO), Company the Lummi Indian Seafood which in operating turn is Enterprises an division Lummi Indian Tribal
(LITE). enterprise LITE an chartered LIBC in VI accordance with article Lummi following constitution. The LITE charter contains the rele- provision: vant authority
The Board shall have and to responsibilities into enter contracts carry things necessary all do other out its provided, however, hereunder; any litigation specific not Board shall authorization enter into the Lummi Indian Business without Council, nor spe- the Board waive suit without authorization. cific (Italics ours.) federally recognized
The Lummi Indian tribe is a bylaws approved operating tribe by under a constitution and Secretary April 10, of the Interior on 1970. petitioners quashing The moved the court for an order attorney wrongful writ and for fees for garnishment. petitioners asserted that Indian Tribe and divisions are immune subordinate thereof jurisdiction consequently from the of the court personal court lacked both matter involving over an action the tribe. The trial court denied quash. the motion to Petitioners' motions for reconsidera- attorney appeal An was filed tion and fees were also denied. Appeals, court with Division One of the Court of and this discretionary granted review. undisputed by parties Indian tribes
It is
Puyallup
possess degree
Tribe,
In
from suit.
*3
III),
Department
(Puyallup
165,
Inc. v.
Game
433 U.S.
(1977),
172-73,
667,
L.
53 Ed. 2d
the common-law from suit enjoyed by sovereign powers. States, v. Turner United (1919); 248 U. 354, S. 358 United States v. United States
239 Co., 506, (1940); Fidelity Puyallup Guaranty U. 512-13 309 S. Game, U. Washington Dept. Tribe 433 S. (1977). 165, aspect sovereignty, 172-173 This of tribal others, con superior plenary like all is to the congressional trol of tion," But "without authoriza Congress. from suit.” United exempt the "Indian Nations are Co., Fidelity Guaranty States v. United States supra, at 512.
Santa Clara Pueblo v.
49, 58,
L. Ed.
436 U.S.
(1978).
2d
Respondent concedes that Indian tribes have tradition- ally immunity, enjoyed argues only against Respon- extends cases direct suit a tribe. dent argues present garnishment action constitutes against an indirect suit the tribe and that not should be extended to cases which the tribe is sued only indirectly. rule,
As
general
a
a
is not an
proceeding
original
Rather,
proceeding.
ancillary
it is
to and dependent
principal
action
a creditor
between
and debtor.
State ex rel.
Mining
Pioneer
& Ditch Co. v. Superior
Court,
(1919);
108 Wash.
Garnishment actions this state are controlled provisions of RCW 7.33. RCW 7.33.060 renders political state and its subdivisions writ. amenable writ, RCW prescribes 7.33.110 the form of the time *4 (20 days), answer of for penalty warns the default. RCW of writ following 7.33.140 describes the effect the upon garnishee, including proscription against service the a any assets of defendant disposing principal the the possession garnishee then in of the without court order. part, provides: 7.33.190, in RCW garnishee Should the to make fail answer the writ prescribed therein, within the time it shall be lawful for court, the expired, on or the writ after time answer such has judgment by against to render such default garnishee by plaintiff amount claimed for full against judg- plaintiff a defendant, or in case has against ment amount such defendant, for full judgment accruing all interest costs: (Italics ours.) provides judgment
RCW of a 7.33.210 execution against garnishee, otherwise, in whether default or upon judgment manner is ordi- the same as execution narily provide And, issued. RCW 7.33.220 and .230 delivery appropriate goods principal of the and effects adjudged possession defendant to be of the permits entry against gar- contempt of a order goods nishee for failure to deliver such and effects. provi- appears clear, It at least from the latter cited thus that, 7.33, of one or sions of RCW the occurrence directly garnishor plaintiff proceed events, more against by entry garnishee, i.e., default, judgment, contempt. or Given these normal execution of potential against garnishee, we are satisfied forms of relief argument, respondent's attempted suit" "direct-indirect case, the context of the instant lacks merit. applicability of Indian
We turn then to the issue sovereign garnishment actions directed agencies. recognized or to a tribe question Although Indian tribes are of whether garnishment one, a novel actions is immune body approach with the of case now take is consistent we involving governmental entities as law recog- sovereigns. earlier, Indian tribes have been As noted possessing nized common-law suit as by sovereign powers. enjoyed which has been supra. general Santa Clara rule Pueblo
241 regarding garnishment government sovereignties States, states, the United subdi- political and their visions cannot in garnishees be summoned as action authorization, statutory consent, without or Am. waiver. 6 (1963). Jur. 2d Attachment Garnishment See also 78§ (4 How.) Alexander, Buchanan v. 20, 11 L. Ed. 45 U.S. 857 (1846); 495, State ex rel. v. Tyler, 14 Wash. Summerfield (1896); 45 P. Libby, 366, 31 Flood v. P. 38 Wash. 80 533 (1905). Our present Indian tribes approach recognizes the same immunity garnishment from which other sover- eign powers possess. Respondent congressional has cited no immunity enactment from relinquishing gar- Indian nishment. asserts, however,
Respondent if even garnishment, tribes are immune from immunity was by waived the Lummi through Respon Tribe its conduct. by dent contends that engaging a course of commercial conduct off the reservation hiring debtor, the tribe has impliedly immunity waived its actions. no Respondent makes claim that expressly was waived the tribe.
In III, Puyallup supra, the United Supreme States Court may held that a state not exercise over a tribe waiver, absent consent or and the court considered whether tribe, by actions, own immunity. had its waived However, 58, Martinez, Santa Clara supra Pueblo at United States Court '"without declared that authorization,' congressional 'Indian Nations are suit'", exempt quoting, United States v. United Co., 506, States Fid. & Guar. 894, 309 L. U.S. 84 Ed. 60 S. (1940). Ct. 653 The Court further stated that is settled that a of sovereign immunity waiver [i]t implied "'cannot be unequivocally must be Testan, expressed.'" United States v. 424 U. S. 399 (1976), (1969). quoting, King, United States v. U. S. Martinez, Santa Clara Pueblo v. In supra at 58-59. its dis- existed, cussion sovereign immunity of whether a waiver of the court then only sovereign discussed whether the tribe's by Congress. immunity had been waived Santa Clara Pueblo v. supra, ruling leaves question only some as to whether Congress waive a tribe's and whether tribes are without power However, immunity. waive their own we need not make that determination it here because is clear that nei- expressly ther Congress Tribe nor has unequivocally immunity. Respondent's waived the tribe's theory implied waiver must therefore be rejected. *6 requested attorney
Petitioners
fees
this
have
action.
have not
supported
Petitioners
their brief
error,
request by
citation of
appropriate
assignment
authority, or
We therefore do not
reach the
argument.
DeHeer v. Seattle-Post
Intelligencer,
122,
issue.
60 Wn.2d
(1962); Northern
State Constr. Co. v.
The was Justice Orris L.. prior adopted by Hamilton to his retirement and is the undersigned opinion. Justices as their
Utter, C.J., Stafford, Wright, Brachtenbach, Horowitz, Dolliver, Hicks, JJ., concur.
Rosellini, (concurring) majority J. concur the —I from action. opinion legal Tribe is immune any to hold otherwise purpose It would not serve useful I because am sure that the matter would then be taken they the immu- federal courts and that would sustain Thus, nity subject tribe. would be respondent time, to no avail. expense, litigation further loss However, I the law should be otherwise. The believe rule unwise and unreasonable. present unjust, respondent attempting The contends that it is not any only reach of the tribe but the funds assets belong Daniels, which to Mr. which are held the tribe. position argument before tribe's was described Superior Court, reconsideration, motion for where following occurred: very only simply You state here that not The Court: Enterprises] LITE [Lummi does Tribal not have provision enterprise charter, a is immunity sue and be sued specifically prohibited bringing waiving suit or anything. LITE suit. can't do right, specific That's without consent Mr. Johnsen: certainly sympathize of the Council. We can with the plaintiff. haven thought The tribe does not want to be of as a people pay debts, who don't their but the issue we went back and dis- concerned, as far as the tribe is cussed the Court's we came back here. It's more previous ruling with our client before important any to them than employee's they individual should be debts as to whether or not any to the court. It's not just court, court, federal, tribal, the state it's what- they very ever, consent, without their told us strongly they they they be, didn't think should exemption were entitled to that law and that we you again your should come back and ask decision. That's to reconsider why we're here. got arguments pretty good legal The Court: You've some your really having opportu- side, I think that *7 nity spirit in did, to rule the manner which I and the of holding doctrine, fairness out themselves commer- cially, gross injustice deny that it would be a the Writ presented in I of Garnishment this case. And know I've a square you issue for to take— up. Mr. Johnsen: Afraid we'll have to take it you will, I'm sure I think the whole Court: community city business should be aware they by provision, fact that don't want to be sued their taxpayer certainly any taxing I and as a body would ask that any reasonably go or act and not let funds public property being people who don't want to used subject pay, if come to a head. will suit don't want to be sued and not be they really thing I don't want to. So think this should 244 case,
In obtained a present respondent Daniels, a non- defendant Mike against principal cannery in by the tribe a fish employed Indian. Daniels is in land. Mr. Daniels Bellingham on non-Indian operated $1,000 per in month. earns excess in Santa Clara Court said The United States Ct. L. Ed. 2d 98 S. Pueblo v. U.S. 56 436 which (1978), Indian tribes is that 1670 As by sovereign powers. enjoyed has been in tribe such, protect is to purpose it must be that its and its powers of its governmental the exercise outside that territory. steps own But when the tribe over its venture, the consid- in a commercial territory engages sovereign which the maintenance support erations Dakota- In North longer present. no are States, F.2d Growers' Ass'n United Montana Wheat (8th 1933), Appeals Court of Cir. the United States distinctions between that courts have drawn recognized capacity and its sovereign of a government action carried generally in commercial transactions operations and invested government by corporations organized impliedly functions. It conceded sovereign of the some it organ- not immune from suit where government that a course, Of corporation. business operates izes and such a businesses, customarily carry on such do not governments sub- authority upon the scarcity explains and that ject. business why sound reason my opinion,
In there is no not be defendant here should such as that of the but sim- no functions sovereign to suit. It exercises commerce, with other like competition ply engages reason community. equitable There is no businesses Under special privileges.1 why it should be accorded $60,736,099 Washington Congress appropriated tribal Indians. 1The $1,827 33,000 Washington approximately who would receive Indians in There are $1,691,517,000. spending per person. government for Indian tribes totals National $2,500,000; community organization services receives The Lummi reservations, Agency on tribal Environmental Protection in 1977 from the *8 contracting privilege the tribe has the immunity, rule of if to account liabilities, it cannot be held incurring anomaly Such an undertakings. its perform it fails to orderly equally of an concept with the hardly accords society. protected has held Court
Furthermore, Supreme United States venture a commercial engages an Indian tribe that when nondiscriminatory reservation, it is outside Jones, 411 U.S. Tribe v. Apache Mescalero state taxes. (1973). There, the court Ct. 1267 L. Ed. 2d 93 S. Act of 1934 said, in interpreting Reorganization (48 984), to conclude that it would be unrealistic Stat. enterprises conceived of off-reservation Congress Mescalero, It at 153. '"virtually government'". as an arm of that, case, to tax found its basis right is true for provision legal Act. Enabling express the State's Such out of liability arising with to matters off-reserva- respect Nev- Enabling found in our Act. enterprises tion cannot be ertheless, for the doctrine of Mescalero equitable basis here, it would seem me that exists enterprise pay of an recognition obligation Court's lia- legal should also extend to its operations taxes bility its defaults. protec- premised justice equal
The law should be I find in the law meets tion. cannot this case standard. Rosellini,
Brachtenbach, J., J. concurs $1,278,000. grants but are not are other which the Tribe received There compensate appear disad- subsidies should detailed. It would that such marketplace. vantages which the tribe suffer