Outsource Services Management, LLC v. Nooksack Business Corp.

¶20 (dissenting) — I agree with the majority that Washington State courts have jurisdiction over civil cases arising on Indian reservations within our state, as long as exercising such jurisdiction does not infringe on tribal sovereignty. Controlling Supreme Court precedent, however, recognizes that such infringement occurs when “the exercise of state-court jurisdiction ... would interfere with the right of tribal Indians to govern themselves under their own laws.” Three Affil. Tribes of Fort Berthold Reservation v. Wold Eng’g, PC, 467 U.S. 138, 148, 104 S. Ct. 2267, 81 L. Ed. 2d 113 (1984). In other words, state-court jurisdiction does not lie if it intrudes on “tribal authority.” Id. at 147.

Gordon McCloud, J.

*283¶21 No such intrusion would occur in a case like this if the tribe itself initiated the lawsuit. E.g., Williams v. Lee, 358 U.S. 217, 219, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959) (noting that historically, “suits by Indians against outsiders in state courts have been sanctioned”); accord Three Affil. Tribes, 467 U.S. at 149 (“The exercise of state jurisdiction is particularly compatible with tribal autonomy when, as here, the suit is brought by the tribe itself and the tribal court lacked jurisdiction over the claim at the time the suit was instituted.”).

¶22 But impermissible intrusion can occur when the tribe is the defendant and the lawsuit arises from tribal acts, on tribal land, for the benefit of tribal members, because that would threaten tribal autonomy. E.g., Williams, 358 U.S. at 223. Of special importance to this case, tribal gaming operations — the subject of the contract at issue here — now play a central role in tribal self-sufficiency and, hence, in tribal autonomy.5 In addition, in this case, the only clear contractual waiver is of “sovereign immunity,” not of jurisdictional issues; the tribe is not the one filing suit; the transaction at issue implicates tribal matters critical to self-sufficiency; and an alternative tribal forum exists. In such a case — which is what we have here, since the contract at issue explicitly recognizes two other forums besides the state courts — state-court jurisdiction does not lie. For that reason, I respectfully dissent.

FACTS

¶23 The Nooksack Indian Tribe (Tribe) borrowed about $15 million from the predecessor in interest to Outsource Services Management. The parties do not dispute that *284Outsource’s predecessor entered into the contract on tribal land with a tribal corporation that distributes its profits to tribal members. The Tribe used the loan to fund a casino project on tribal land for the benefit of tribal members, and the loan was secured with tribal property. After the Tribe defaulted on its loan payments, Outsource brought its contract claim in Washington State Superior Court.

ANALYSIS

1. The Contract Does Not Give Washington State Courts Jurisdiction over Outsource’s Lawsuit

¶24 The majority holds that state-court jurisdiction extends to Outsource’s lawsuit because the Tribe signed a contract with a clause stating that the Tribe “hereby consents ... to be sued in . . . any court of general jurisdiction in the State.” Clerk’s Papers (CP) at 446. A close reading of the contract, however, reveals that this provision applied specifically to the Tribe’s waiver of sovereign immunity (which might just signal relinquishment of that potential affirmative defense to a contract breach claim), was linked to the parties’ explicit acknowledgment that state courts might lack jurisdiction, and stopped short of waiving all jurisdictional issues.

¶25 As a general rule, waivers of sovereign immunity must be “ ‘construed strictly in favor of the sovereign’ ” and not “ ‘enlarge [d] . . . beyond what the language requires.’ ” United States v. Nordic Vill., Inc., 503 U.S. 30, 34, 112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992) (alterations in original) (internal quotation marks omitted) (quoting McMahon v. United States, 342 U.S. 25, 27, 72 S. Ct. 17, 96 L. Ed. 26 (1951); Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S. Ct. 3274, 77 L. Ed. 2d 938 (1983)). The same rule applies when courts construe an Indian tribe’s waiver of sovereign immunity. E.g., Rupp v. Omaha Indian Tribe, 45 F.3d 1241, 1245 (8th Cir. 1995). We must thus take care to interpret the language of the contract before us narrowly in accordance with this rule of strict construction.

*285¶26 We therefore turn to the language of the contract. The contract in this case shows that the tribe granted a “limited waiver of its sovereign immunity.” CP at 446 (emphasis added). The consent to suit clause appears in the very next sentence and does nothing to broaden that “limited waiver.” Instead, it says that consent to sue is given solely to effectuate whatever waiver of sovereign immunity the previous sentence, alone, accomplished:

. . . Borrower hereby expressly grants to the Lender ... an irrevocable limited waiver of its sovereign immunity from suit or legal process with respect to any Claim. In furtherance of this waiver, the Borrower hereby consents ... to be sued in (i) the United States District Court for Western District of Washington [and] (ii) any court of general jurisdiction in the State ....

Id. (emphasis added). The contract then shows the parties’ acknowledgement, even with that limited waiver, that state (and federal) courts might lack jurisdiction by stating, “[A]nd (iii) only if none of the foregoing courts shall have jurisdiction [then the Tribe consents to suit in] all tribal courts and dispute resolution processes of the Tribe.” Id. (emphasis added). Thus, the contract expressly contemplates that Washington State courts might not have jurisdiction over claims arising under the contract.

¶27 To be sure, the Tribe granted a “limited waiver of its sovereign immunity.” Id. But the majority’s reasoning depends completely on the premise that such a limited waiver of sovereign immunity alone automatically confers jurisdiction on state courts to hear claims filed against a tribe.

¶28 That reasoning is inconsistent with the language of the contract, as discussed above. It is especially inconsistent with that contractual language given the rule (described above) that a tribe’s waiver of sovereign immunity must be construed strictly in favor of the tribe.6

*286|29 Finally, the majority’s reading of the contract also conflicts with prior, persuasive, federal decisions on the exact same issue. Federal cases construing similar waiver language hold that it does not automatically confer jurisdiction on nontribal courts. The Eighth Circuit, for example, has held that a “waiver of sovereign immunity under the tribal ordinance’s ‘sue and be sued’ language does not by fiat confer jurisdiction on the federal courts.” Weeks Constr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 668, 671 (8th Cir. 1986) (finding no federal jurisdiction where non-Indian sued Oglala Sioux Housing Authority, a tribal entity, for breach of contract). It explained, “Mere consent to be sued, even consent to be sued in a particular court, does not alone confer jurisdiction upon that court to hear a case if that court would not otherwise have jurisdiction over the suit.” Id. (emphasis added). And it concluded that waiver of sovereign immunity alone did not confer jurisdiction because it “only nullifies the Housing Authority’s use of sovereign immunity as a possible defense to Weeks’ breach of contract action.” Id. at 672.

¶30 The Ninth Circuit agrees with its sister circuit, stating — in the context of a consent to suit clause in a tribal entity’s contract with a nontribal corporation — that “[m]ere consent to be sued does not confer jurisdiction on any particular court.” Stock W., Inc. v. Confederated Tribes of Colville Reservation, 873 F.2d 1221, 1225 n.11 (9th Cir. 1989) (citing Weeks, 797 F.2d at 670).

¶31 These holdings are inconsistent with the majority’s conclusion that the Tribe did, in fact, waive jurisdictional issues based on its consent to be sued in state court. They also answer the question the majority declines to answer— *287whether a Tribe’s waiver of sovereign immunity alone confers jurisdiction on a court — with a firm no.

2. Absent an Effective Contractual Waiver, Controlling Supreme Court Precedent Bars State-Court Jurisdiction over This Lawsuit Concerning Tribal Matters Bearing Heavily on Tribal Self-Sufficiency and Autonomy

¶32 Since neither the limited waiver of sovereign immunity nor the consent to suit clause in this contract automatically confers jurisdiction on state courts, we are left with only one question: do the superior courts of Washington have jurisdiction in this case? Controlling Supreme Court authority compels us to say no.

¶33 The majority seems to agree that Supreme Court authority controls and relies primarily on Three Affiliated Tribes, 467 U.S. 138. But, as the majority acknowledges, that case permitted state-court jurisdiction where “the suit is brought by the tribe itself.” Id. at 149. The fact that the plaintiff was an Indian tribe, rather than non-Indian, was critical to the Court’s decision. As the Three Affiliated Tribes Court explained, such jurisdiction is not a two-way street:

This Court, however, repeatedly has approved the exercise of jurisdiction by state courts over claims by Indians against non-Indians, even when those claims arose in Indian country. The interests implicated in such cases are very different from those present in Williams v. Lee, where a non-Indian sued an Indian in state court for debts incurred in Indian country, or in Fisher v. District Court, [424 U.S. 382, 96 S. Ct. 943, 47 L. Ed. 2d 106 (1976),] where this Court held that a tribal court had exclusive jurisdiction over an adoption proceeding in which all parties were tribal Indians residing on a reservation. As a general matter, tribal self-government is not impeded when a State allows an Indian to enter its courts on equal terms with other persons to seek relief against a non-Indian concerning a claim arising in Indian country.

*288Id. at 148-49 (citations omitted); see also id. at 159 (specifically declining to rule on the fate of any potential cross claim that might be filed by the non-Indian defendant).

¶34 This case is different. Here, a non-Indian plaintiff seeks to sue the Tribe in state court.

135 This case is indistinguishable from Williams, 358 U.S. 217. In Williams, just as in this case, a non-Indian sued an Indian in state court on a contract claim. Id. at 217-18. The Court held that “[t]here can be no doubt that to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves.” Id. at 223.

¶36 The same is true in this case. The Tribe entered into a contract in its own territory with an entity entirely foreign to Washington State. It obtained a loan, secured by tribal property, for the purpose of engaging in a commercial enterprise to be run by the Tribe on Indian land for the benefit of its own tribal members. And, as noted above, tribal business operations, and gaming operations in particular, are essential to achieving the goals of tribal self-sufficiency and self-government. Michigan v. Bay Mills Indian Cmty.,_ U.S._, 134 S. Ct. 2024, 2043, 188 L. Ed. 2d 1071 (2014) (Sotomayor, J., concurring). Thus, permitting the exercise of state-court jurisdiction in this case presents an especially high risk of infringement on the Tribe’s right of self-government.

¶37 Although the Tribe and its corporation waived their sovereign immunity, the plain language of the contract does not indicate any waiver of jurisdictional issues, and federal cases are clear that such a “limited” waiver of sovereign immunity, alone, does not confer jurisdiction on a court. This court must therefore apply Williams and its progeny to decide whether extending state-court jurisdiction over this contract would impermissibly infringe on tribal autonomy. It would. Thus, state-court jurisdiction does not extend this far.

*289CONCLUSION

¶38 In Three Affiliated Tribes, the Court explained that “[t]he exercise of state jurisdiction is particularly compatible with tribal autonomy when, as here, the suit is brought by the tribe itself and the tribal court lacked jurisdiction over the claim at the time the suit was instituted.” 467 U.S. at 149. The corollary is that the exercise of state jurisdiction is not “particularly compatible with tribal autonomy” when, as in this case, the suit is brought by a non-Indian against the tribe, there has been no showing that the tribal court lacks jurisdiction over the claim, and the other factors in Williams weigh against state-court jurisdiction.

¶39 This conclusion does not deprive Outsource — or others contracting with the Tribe — of recourse. Outsource can bring its claims in the tribal court or dispute resolution system (and federal courts may also have jurisdiction). Other parties who contract with the Tribe can accept tribal jurisdiction or negotiate for waivers of tribal autonomy sufficient to fully waive sovereign immunity, fully waive all jurisdictional challenges, and fully consent to state court jurisdiction over the Tribe for all claims arising from the contract. But that did not occur here, and extending state-court jurisdiction to this case without such full and clearly expressed consent conflicts with Williams and infringes on the Tribe’s authority to govern its own affairs. I therefore respectfully dissent.

González, J., concurs with Gordon McCloud, J.

As Justice Sotomayor recently explained, “[T]ribal gaming operations cannot be understood as mere profit-making ventures that are wholly separate from the Tribe’s core governmental functions,” and in fact “tribal business operations are critical to the goals of tribal self-sufficiency.” Bay Mills Indian Cmty., 134 S. Ct. at 2043 (2014) (Sotomayor, J., concurring).

The majority attempts to sidestep this issue by asserting that the Tribe “consensually entered into a contract where it both waived its sovereign immunity *286and consented to jurisdiction in state court for claims related to that contract.” Majority at 278 (emphasis added). Relying on that interpretation of the contract, the majority says that it declines to take a position on whether “Nooksack’s waiver of sovereign immunity was enough — in and of itself — to confer subject matter jurisdiction on Washington State courts.” Majority at 282. But this depends on a strained reading of the contract that strictly construes it in the non-Indian plaintiff’s favor.