17,3LED .
COURT OF'APPEALS.DIVi
- —
-STATE OF WASHINGTON
2017JUN 26 AN 9:3I
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JORDYNN SCOTT, )
) No. 75664-8-1
Appellant, )
) DIVISION ONE
v. I )
) UNPUBLISHED OPINION
JOHN or JANE DOE, director of the )
Department of Licensing, a subdivision of )
the State of Washington, in his/her official )
capacity; STATE OF WASHINGTON; )
PETER'S TOWING a Washington )
Corporation; and JOHN and/or JANE )
DOE, unidentified Swinomish tribal police )
officers and general authority police )
officers pursuant to chapter 10.92 RCW in
their official capacity and individually, )
)
Respondents. ) FILED: June 26, 2017
)
APPELWICK, J. —After losing her vehicle to the Swinomish Tribe in civil
forfeiture, Scott filed this suit against the Department of Licensing and unnamed
Swinomish police officers. The trial court dismissed the case under CR 19 for
failure to join an indispensable party: the Tribe. We affirm.
FACTS
The facts are not disputed. Jordynn Scott is not a tribal member. The
Swinomish Indian Tribal Community (Tribe), pursuant to Swinomish Tribal Code
§ 4-10.050, succeeded in a civil forfeiture action against her vehicle in Swinomish
tribal court. She did not respond to the tribal court forfeiture proceeding. The
No. 75664-8-1/2
Department of Licensing (Department) issued a new certificate of title to reflect
the change in ownership.
Scott filed a complaint in Whatcom County Superior Court against John
and/or Jane Doe Swinomish Tribal Police Officers, the Director of the
Department of Licensing, the State of Washington, and Peter's Towing. Against
the Department, she sought declaratory and injunctive relief prohibiting -transfer
of title based on tribal forfeiture of nonmembers' property. Against the officers,
she sought declaratory and injunctive relief regarding their confiscation of private
property. She also sought 42 U.S.C.§ 1983 damages.
The Department moved to dismiss under CR 19 for failure to join the
Tribe. The trial court granted this motion. Scott appealed directly to the
Washington Supreme Court. But, the Supreme Court transferred the case to this
court.
DISCUSSION
Scott's primary argument is that the trial court erred in dismissing this case
under CR 19 on sovereign immunity grounds. She also seeks attorney fees.
Scott argues that the trial court erred in dismissing this case under CR 19.
CR 19 addresses when the joinder of absent parties is needed for a just
adjudication. Auto. United Trades Ore. v. State, 175 Wn.2d 214, 221, 285 P.3d
52(2012)(AUTO). Where the feasibility of joinder is contested, courts engage in
a three step analysis. jçj. Under CR 19(a), the court first determines whether
absent persons are "necessary" for a just adjudication. Id. at 221-22. Next, if the
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No. 75664-8-1/3
absentees are necessary, the court determines whether it is'feasible to order the
absentee's joinder. Id. at 222. Joinder is not feasible when tribal sovereign
immunity applies. Id. Third, if joining a necessary party is not feasible, the court
considers whether a party is "indispensable" under CR 19(b) such that their
inability to be joined defeats the action. Id. at 222, 227.
We review a trial court's decision under CR 19 for an abuse of discretion,
and review any legal determinations necessary to that decision de novo. Id. at
222. The party urging dismissal bears the burden of persuasion. Id. However, if
it appears from an initial appraisal of the facts that there is an unjoined
indispensable party, the burden rests with the party resisting dismissal. Id. A
failure to meet that burden will result in the joinder of the party or dismissal of the
action. Id.
A. Necessary Party
CR 19's first element asks whether a party is a necessary party. CR
19(a)(2). This subsection provides that an absent party is "necessary" when it
"claims an interest relating to the subject of the action and is so situated that the
disposition of the action in [its] absence may (A) as a practical matter impair or
impede his ability to protect that interest." Id. To decide whether this is met, we
first determine whether the absent party claims a legally protected interest in the
action, and second, whether the absentee's ability to protect that interest will be
impaired or impeded. AUTO, 175 Wn.2d at 223.
No. 75664-8-1/4
Scott does not contest that the Tribe is a necessary party. The Tribe has
a sufficient interest in the action and is a necessary party.
B. Feasible to Join
The key inquiry in this case is whether joinder of the necessary party is
feasible. This question turns on whether the Tribe and its officers may assert
sovereign immunity here.
In keeping with their sovereign status, it is well settled that Native
American tribes enjoy the common law immunity from suit traditionally accorded
to sovereign entities. Id. at 226. This protects tribes from suit absent an explicit
and unequivocal waiver or abrogation. Wright v. Colville Tribal Enter. Corp., 159
Wn.2d 108, 112, 147 P.3d 1275(2006).
Scott argues that because the tribal officers acted outside the scope of
their tribal authority, the Tribe voluntarily waived sovereign immunity under RCW
10.92.020(2)(a). That statute states that tribal police officers may act as and
exercise the power of other general authority Washington peace officers. Id.
But, the Tribe must carry professional liability insurance that covers the officers'
actions while working in their capacity as Washington peace officers. Id. And,
most importantly for this case, the tribe and insurer must waive any sovereign
immunity defense, up to policy limits, in actions that arise from conduct in their
capacity of Washington officers:
Each policy of insurance issued under this chapter must include a
provision that the insurance shall be available to satisfy settlements
or judgments arising from the tortious conduct of tribal police
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No. 75664-8-1/5
officers when acting in the capacity of a general authority
Washington peace officer, and that to the extent of policy coverage
neither the sovereign tribal nation nor the insurance carrier will
raise a defense of sovereign immunity to preclude an action for
damages under state or federal law, the determination of fault in a
civil action, or the payment of a settlement or judgment arising from
the tortious conduct
RCW 10.92.020(2)(a)(ii). In other words, the Tribe obtains the authority for its
police to act as State officers, in exchange for waiving its sovereign immunity for
that conduct, up to policy limits. See id.
Scott argues that the tribal officers' interaction with Scott and seizure of
her vehicle exceeded their tribal authority over nonmembers. Therefore, she
argues, the only other possible basis for the Tribe's actions must have been its
authority to enforce state laws pursuant to chapter 10.92 RCW. And, if that is the
case, sovereign immunity would be waived under RCW 10.92.020(2)(a)(ii) as to
"conduct of tribal police officers when acting in the capacity of a general authority
Washington peace officer."
Scott correctly argues that tribes generally cannot exercise criminal
authority over nonmembers. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191,
195, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978). But, in Montana v. United States,
450 U.S. 544, 565-66, 101 S. Ct. 1245, 67 L. Ed. 2d493 (1981), the United
States Supreme Court held that tribes retain civil authority to regulate the
conduct of nonmembers in two areas. First, they may regulate the conduct of
nonmembers who enter into consensual relationships with the Tribe through
commercial dealings. Id. Second, they may regulate the conduct of
nonmembers on lands within their reservation when that conduct threatens or
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No. 75664-8-1/6
directly affects political integrity, economic security, or the health or welfare of the
tribe. Id. This second exception is at issue here.
Drug enforcement laws are actions taken to protect the health, safety, and
welfare of the public. See, e.g., 21 U.S.C. § 801(1). Under the federal
Controlled Substances Act'
. scheme, forfeitures are civil in nature.2 See United
States v. Ursery, 518 U.S. 267, 270-71, 274, 116 S. Ct. 2135, 135 L. Ed. 2d 549
(1996). The same is true under state law. See State v. Catlett, 133 Wn.2d 355,
366-67, 945 P.2d 700 (1997). These actions are against the property. Urserv,
518 U.S. at 295-96. The tribal statute under which these vehicles were forfeited,
Swinomish Tribal Code § 4-10.050, is similar. This dispute involves a forfeiture
of property, with notice to the owner, based on a criminal violation of the tribal
1 21 U.S.C. §§ 801-904.
2 This distinction between civil and criminal actions was recently
highlighted in a similar case in federal court. See Wilson v. Doe, No. C15-629
JCC, 2016 WL 1221655 (W.D. Wash. Mar. 29, 2016). In that case, the Lummi
tribe sought forfeiture of Wilson's vehicle after discovering marijuana inside while
on the Lummi reservation. See id. at *3. Wilson was not Native American. See
id. at *2. Wilson challenged the Lummi tribe's authority to forfeit a nonmember's
vehicle, and cited Oliphant for support. Id. at *3. The federal court noted that,
because forfeiture was a civil matter, Oliphant did not bar the tribe's authority to
forfeit the vehicle of a nonmember. Id.
A similar question was presented in Pearson v. Dir. of the Dep't of
Licensing, No. C15-0731 JCC, 2016 WL 3386798 (W.D. Wash. June 20, 2016).
Pearson, who was not part of the Swinomish tribe, was pulled over on the
Swinomish reservation by a Swinomish officer. Id. at *3. The Tribe obtained
forfeiture after discovering drugs in the vehicle. Id. at *1. Pearson filed suit for
damages and declaratory relief against the Department and named Swinomish
officers. Id. at *2. The court granted a named Swinomish officer's motion for
summary judgment. Id. at *5. It held that, because the suit against the named
Swinomish officer questioned the Tribe's jurisdiction over Pearson, sovereign
immunity barred the suit. Id. at *4.
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No. 75664-8-1/7
drug code. We conclude it is an in rem civil proceeding concerning the health or
welfare of the Tribe.
Scott cites Miner Electric, Inc. v. Muscogee (Creek) Nation, 464 F. Supp.
2d 1130 (N.D. Okla. 2006), rev'd 505 F.3d 1007 (10th Cir. 2003), as a correct
application of Montana's second exception to tribal civil forfeiture authority.
Miner was not a tribe member. Id. at 1132. Muscogee tribal police discovered
drugs in Miner's vehicle while it was parked at the Muscogee casino. Id. at 1133.
The Muscogee police succeeded in a forfeiture proceeding against the vehicle in
tribal court. Id. The federal district court held that the forfeiture was invalid,
because the Muscogee police had no authority to forfeit property that belongs to
nonmembers. Id. at 1137. Scott urges us to adopt the Miner district court's
reasoning that the Tribe exceeded its authority, and as a result may not assert
sovereign immunity.
But, Miner was reversed on appeal. See Miner Elec., Inc. v. Muscooee
(Creek) Nation, 505 F.3d 1007, 1012 (10th Cir. 2007). As Scott acknowledges,
the appellate court rejected the trial court's reasoning as an overly narrow
conception of sovereign immunity. Id. The appellate court held that the
applicable authority "does not stand for the proposition. . . that an Indian tribe
cannot invoke its sovereign immunity from suit in an action that challenges the
limits of the tribe's authority over non-Indians." Id. ,Because the appellate court
held that sovereign immunity barred suit against the Muscogee, it explicitly
declined to address whether the tribe had authority to seize nonmembers'
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No. 75664-8-1/8
property. Id. Therefore, we decline to adopt the reasoning from the federal
district court when that decision was reversed on sovereignty grounds.
Scott also cites Bressi v. Ford, 575 F.3d 891 (9th Cir. 2009) for her
argument that the Miner trial court's analysis regarding tribal authority was
sound, and the officers here were not acting under tribal law. In Bressi, tribal
officers stopped a nonmember at a roadblock on an Arizona state highway that
ran through the reservation. Id. at 893-94. Bressi refused to present his
identification, because he alleged the stop was unconstitutional. Id. at 894. So,
the officers handcuffed him and cited him for failure to provide a license and
failure to follow an officer's order. Id. The tribal officers had authority to enforce
state law, so they eventually cited him for two state law violations arising from his
failure to cooperate. Id. Bressi brought a lawsuit arguing that the officers acted
outside their tribal law authority and did not meet constitutional standards for
roadblocks. See id. at 895. The court held that the roadblock and initial stop
were lawful, but the officers acted outside the scope of their tribal authority. Id. at
897. Rather, it held that they instead acted under state authority, because they
quickly realized Bressi was not impaired, but nevertheless treated his refusal to
cooperate as a state law violation. Id.
But, Bressi is critically different because it involved tribal officers'writing a
criminal citation for a violation of state law. Id. at 894. They were obviously
acting in a state officer capacity, because they cited Bressi for violation of state
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No. 75664-8-1/9
law. See id. But, Scott's forfeiture order was based purely on tribal law. And, it
was an in rem forfeiture proceeding, not a purely criminal matter like Bressi.
Scott has not established that state laws were implicated in the forfeiture.
She has not established that the officers were acting in the capacity of
Washington state peace officers, rather than tribal officers. Absent that, she has
not established that statutory immunity waiver applied.
But, Scott argues that even if the RCW 10.92.020 waiver does not apply,
the officers may not assert sovereign immunity because they acted outside of the
scope of their authority. Whether tribal sovereign immunity applies is a question
of federal law. AUTO, 175 Wn.2d at 226. Such sovereign immunity extends to
tribal officials acting within the scope of their authority. Wright, 159 Wn.2d at
116.
Scott also cites Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir.
2013) and Pistgr v. Garcia, 791 F.3d 1104, 1113-14 (9th Cir. 2015) for her
argument that, irrespective of whether they were acting as Washington peace
officers, the officers acted outside of their authority and sovereign immunity is
therefore not available. In Maxwell, the court found that tribal paramedics named
in the suit could not assert sovereign immunity in a suit arising out of an
' emergency response, because the damages sought were not from the tribe itself,
but from the individuals. 697 F.3d at 1081, 1089. In Pistor, the court cited
Maxwell, and found that sovereign immunity did not apply in a suit against tribal
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No. 75664-8-1/10
gaming officers in their individual capacities who seized the plaintiffs after they
won large amounts of money. 791 F.3d at 1108-09, 1113-14.
But, both Maxwell and Pistor involved actions in response to isolated
scenarios.3 Maxwell, 697 F.3d at 1081; Pistor, 791 at 1108-09. To that end,
both courts explicitly noted that sovereign immunity did not apply because the
remedy sought would not restrain the Tribe from acting, but rather merely
compensate the plaintiffs for their injury. Maxwell, 697 F.3d at 1088; Pistor, 791
at 1114. At issue in Maxwell was the negligent conduct of individuals responding
to a specific emergency. 708 F.3d at 1080-81. At issue in Pistor was isolated
conduct of individuals, constituting acts of intimidation and punishment of a group
of highly successful gamblers. 791 F.3d 1108-09. Neither requested relief such
that a Tribe's policies or programmatic practices should be enjoined.
But, here the crux of Scott's argument is that the tribe's ongoing practice
of seizing and forfeiting nonmembers' vehicles should be enjoined. And, a
plaintiff cannot circumvent tribal immunity by simply naming an officer of the
Tribe as a defendant, rather than the sovereign entity. Cook v. AVI Casino
Enters., Inc., 548 F.3d 718, 727 (9th Cir. 2008). This is for obvious reasons. If
3 Scott also cites Tenneco Oil Co. v. Sac and Fox Tribe of Indians of
Oklahoma, 725 F.2d 572 (10th Cir. 1984) for further support of this argument.
There, the court held that a gas company seeking to invalidate tribal ordinances
could maintain a suit against named officials. Id. at 574-75. It reasoned that,
when a plaintiff alleges that an officer acted outside the scope of his authority,
sovereign immunity is not implicated. Id. at 574. But, like Maxwell and Pistor,
Tenneco involved named officers. Id. And, the court reasoned that the presence
of federal question jurisdiction was key to its holding that the suit may proceed.
jçj. at 575. Neither of these concerns are present in Scott's case.
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No. 75664-8-1/11
the opposite were true, a plaintiff challenging a sovereign's authority could simply
name an officer of the sovereign to completely avoid the principles underlying
sovereign immunity. See id. Scott challenges the Tribe's outright authority to
forfeit vehicles of nonmembers. The lawSuit does not concern an isolated act by
individuals, but rather the Tribe's ongoing authority to engage in a specific
practice. Maxwell and Pistor do not apply.4
Scott contends that upholding the trial court will render ineffective RCW
10.92.020(2)(a)(ii)'s sovereign immunity waiver. We disagree. The waiver would
retain vitality when tribal officers are enforcing Washington state law, acting in
the capacity of a State peace officer.
We hold that Scott has not demonstrated that the officers were acting as
State peace officers. Therefore, the waiver of sovereign immunity in ROW
4 At oral argument, Scott stressed that another case, Lewis v. Clarke,
U.S. , 137 S. Ct. 1285, 197 L. Ed. 2d 631 (2017), establishes that the officers
here may be sued individually. In Lewis, the court held that a tribal employee
could not assert sovereign immunity in the following circumstance:
This is a negligence action arising from a tort committed by Clarke
on an interstate highway within the State of Connecticut. The suit
is brought against a tribal employee operating a vehicle within the
scope of his employment but on state lands, and the judgment will
not operate against the Tribe. This is not a suit against Clarke in
his official capacity. It is simply a suit against Clarke to recover for
his personal actions, which "will not require action by the sovereign
or disturb the sovereign's property."
Id. at 1292 (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S.
682, 687, 69 S. Ct. 1457, 93.L. Ed. 1628 (1949)). Lewis is distinguishable,
because Scott's primary argument goes to tribal authority for an ongoing
practice, not that the tribe should be liable for isolated negligence.
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No. 75664-8-1/12
10.92.020(2)(a)(ii) does not apply.5 No other exception to sovereign immunity
applies, and the Tribe and its officers are therefore immune from this suit.
Joinder is not feasible.
C. Indispensable party
Scott argues that, even if the court determines that joinder is not feasible
as to the tribe and its officers due to sovereign immunity, the suit should proceed
against the Department.
This inquiry is heavily influenced by the facts and circumstances of the
individual case. AUTO, 175 Wn.2d at 229. The court must determine whether,
"in equity and good conscience," the action should proceed among the parties
before it, or be dismissed. CR 19(b). The factors to be considered are:
(1) to what extent a judgment rendered in the person's absence
might be prejudicial to the person or those already parties; (2) the
extent to which, by protective provisions in the judgment, by the
shaping of relief, or other measures, the prejudice can be lessened
or avoided; (3) whether a judgment rendered in the person's
absence will be adequate; (4) whether the plaintiff will have an
adequate remedy if the action is dismissed for nonjoinder.
Id.
These factors weigh in favor of dismissal. First, the prejudice to the Tribe
would be substantial. In effect, Scott seeks a pronouncement that tribes may not
5 Scott also argues that the case should nevertheless proceed, because
the Tribe's RCW 10.92.020(2)(a) insurers are not protected by sovereign
immunity. She cites Smith Plumbing v. Aetna Casualty, 149 Ariz. 524, 527, 720
P.2d 499 (1986), where the Arizona Supreme Court held that an insurer was not
entitled to assert a Tribe's sovereign immunity. But, even if this were a correct
statement of Washington law, she has not established that the tribe is not a
necessary party in a proceeding to establish that its officers acted under
Washington law and not tribal law.
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No. 75664-8-1/13
pursue asset forfeiture against nonmembers. Any such decision would have a
substantial effect on tribal policy, and the health and welfare of the tribe. Scott
urges the court to allow the suit to go forward against the Department alone, and
enjoin the department from changing vehicle titles based on tribal forfeiture.6
But, such a decision would still prejudice the Tribe. Although such an injunction
would kit only the Department's conduct, it would nevertheless prevent the
Tribe from obtaining or selling vehicles via forfeiture. As a result, this factor
weighs in favor of dismissal.
Second, there is little opportunity to fashion relief that would limit prejudice
to the Tribe. The core of Scott's claim is that the Tribe's asset forfeiture practices
against nonmembers must be enjoined. The relief that Scott seeks would
necessarily prejudice the Tribe.
Third, a judgment against the Department alone, at best, could enjoin it
from issuing titles based on tribal court judgments against nonmembers. But,
6 Relatedly, Scott also claims that the Department violated its own protocol
in changing the title based on a foreign (here, tribal) judgment, without first
registering that judgment in superior court. She notes that, in a letter regarding
another non-Tribe member's vehicle, the Department stated that its protocol is to
register foreign judgments in superior court before seeking a change of title
pursuant to that judgment. But, she claims the Department is not following this
procedure.
Even if the sovereign immunity discussion above does not also bar this
argument, Scott fails to identify the available relief that would-be adequate. She
does not identify what her cause of action against the Department for any
monetary damages would be, if one even exists. Scott fails to identify the relief
that this court could provide in response to this argument. It is not grounds for
reversal.
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No. 75664-8-1/14
this would not guarantee that the forfeitures themselves stopped. A judgment in
the absence of the Tribe would not be adequate.
Finally, Scott was not without an alternate remedy. She could have
contested the original forfeiture proceeding in tribal court. She did not. That
proceeding was the most logical place to challenge the Tribe's authority to seek
forfeiture of her property. Instead, she now pursues a tort claim, after the fact,
alleging that the Tribe had no jurisdiction to take her property in the first place,
even though she did not contest the Tribe's action when she had the original
opportunity to do so.
This is in stark contrast to a case like AUTO, which Scott cites in arguing
that dismissal would be inequitable. There, a trade group sought to invalidate
state compacts with tribes regarding fuel taxes. 172 Wn.2d at 220-21. The court
found that dismissal under CR 19 was not warranted, in part because there was
no alternative remedy available that could have addressed the validity of the
compacts. Id. at 232-33. Challenging the validity of the compacts in state court
was literally the only possible way for the trade group to obtain relief. Id. at 232.
The posture of Scott's claim is different. She did not challenge the forfeiture
when she had the initial opportunity in tribal court.
Because the validity of the Tribe's practices are central to this case, and
because an alternative remedy was available to Scott, we hold that the Tribe was
an indispensable party, and the action may not proceed without it. The trial court
properly dismissed this case on CR 19 grounds.
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No. 75664-8-1/15
Scott is not entitled to relief. Her request for attorney fees is denied.
We affirm.
WE CONCUR:
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