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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CANDEE WASHINGTON, and all other
persons similarly situated, No. 75670-2-1
Appellant, DIVISION ONE
V. UNPUBLISHED OPINION
DIRECTOR OF THE DEPARTIMENT OF
LICENSING, a subdivision of the State of
Washington, in his/her official capacity;
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 all tribal police officers
involved in the seizure and forfeiture of
automobiles owned by non-Native
Americans as individuals,
Respondents I FILED: June 26, 2017
APPELWICK, J. — After losing her vehicle to the Swinomish Tribe in civil
forfeiture, Washington 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. Candee Washington 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
No. 75670-2-1/2 _
Swinomish tribal court.' She did not contest the tribal court forfeiture proceeding.
I
The Department of Licensing (Department) issued a new certificate of title to
reflect the change in ownership.
Washington filed a class action complaint in Skagit County Superior Court
against John and/or Jane Doe Swinomish Tribal police officers and the Director
of the Department of Licensing. She requested certification of two classes, one
class whose property has been seized by the Tribe, and one class whose
property has been seized by other tribes. Against the Department, she sought a
judgment for every certificate of ownership "changed based upon presentation of
an Indian order of forfeiture." And, against the unnamed officers, she sought a
judgment and 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. Washington appealed directly to the
Washington Supreme Court. But, the Supreme Court transferred the case to this
court.
- DISCUSSION
Washington makes three arguments. First, her primary argument is that
the trial court erred in dismissing this case under CR 19 on sovereign immunity
grounds: Second, in a motion to modify a commissioner's order, Washington
IWashington notes that the Swinomish law is less favorable to claimants
in forfeiture proceedings than Washington law. She notes that it allows forfeiture
of a vehicle if even an occupant of the vehicle possesses a controlled substance,
and there is no good faith exception for an unwitting owner. And, here the order
of forFeiture noted that the vehicle merely contained occupants who possessed
heroin and its paraphernalia, 'not that Washington herself possessed or
distributed the heroin and paraphernalia.
2
No.75670-2-1/3 ,
argues that this case should be remanded to the trial court for factual
development. Third, Washington seeks attorney fees.
I. CR 19 Joinder
Washington 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 Org. 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. Id. Under CR 19(a), the court first determines whether
absent persons are "necessary" for a just adjudication. Id. at 221-22. Next, if the
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.
3
No.75670-2-1/4
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.
Washington 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).
Washington argues that, because the Tribal officers acted outside the
scope of their tribal authority, the Tribe voluntarily waived sovereign immunity
4
No. 75670-2-1/5
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
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.
Washington argues that the tribal officers' interaction with Washington 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."
5
No. 75670-2-1/6
Washington 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. 2d 493 (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
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 Act2 scheme, forFeitures are civil in nature.3 See United
2 21 U.S.C. §§ 801-904. + .
3 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 Oli hant 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
:
No. 75670-2-1/7
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. Ursery,
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
drug code. We conclude it is an in rem civil proceeding concerning the health or
welfare of the Tribe.
Washington 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. Washington 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.
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.
7
No. 75670-2-1/8
But,-Miner was reversed on appeal. See Miner Elec., Inc. v. Muscogee
(Creek) Nation, 505 F.3d 1007, 1012 (10th Cir. 2007). As Washington
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'
property. -Id. Therefore, we decline to adopt the reasoning from the federal
district court when that decision was reversed on sovereignty grounds.
Washington 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 that 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
0
No. 75670-2-1/9
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
law. See id. But, Washington's forfeiture order was based purely on tribal law.
And, it was an in rem forfeiture proceeding, not a purely criminal matter like
Bressi.
Washington 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, Washington 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.
E
No. 75670-2-1/10
Washington cites Maxwell v. Countv of San Diego, 708 F.3d 1075 (9th Cir.
2013) and Pistor 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. 708 F.3d at 1080-81, 1089: In Pistor, the court cited
Maxwell, and found that sovereign immunity did not apply in a suit against tribal
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
1 scenarios.4 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
4 Washington 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.
Id. at 575. Neither of these concerns are present in Washington's case.
10
No. 75670-2-1/11
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 Washington'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
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. Washington 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.5
5 At oral argument, Washington 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,
11
No. 75670-2-1/12
Washington 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 Washington has not demonstrated that the officers were
acting as State peace officers. Therefore, the waiver of sovereign immunity in
RCW 10.92.020(2)(a)(ii) does not apply.6 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
-- Washington 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,
because Washington's primary argument goes to tribal authority for an ongoing
practice, not that the tribe should be liable for isolated negligence.
6 Washington 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.
12
No. 75670-2-1/13
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.
Lu
These factors weigh in favor of dismissal. First, the prejudice to the Tribe
would be substantial. In effect, Washington seeks a pronouncement that tribes
may not pursue asset forfeiture against nonmembers. Any such decision would
have a substantial effect on tribal policy, and the health and welfare of the tribe.
Washington 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.' But, such a decision would still prejudice the Tribe. Although
such an injunction would limit only the Department's conduct, it would
' Relatedly, Washington 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, Washington fails to identify the available relief that would be adequate.
Her only cause of action for damages made in the complaint is against the tribal
officials. And, the Director would have no authority to actually return the vehicle
to her possession, because doing so would require an action against the Tribe in
superior court, where the same sovereign immunity barriers would be present.
Washington fails to identify the relief that this court could provide in response to
this argument. It is not grounds for reversal.
13
No. 75670-2-1/14
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 Washington's claim is that the Tribe's asset forfeiture
practices against nonmembers must be enjoined. The relief that Washington
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,
this would not guarantee that the forfeitures themselves stopped. A judgment in
the absence of the Tribe would not be adequate.
Finally, Washington 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, that Washington 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
s
14
No. 75670-2-1/15
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 Washington'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 Washington, we hold that the
Tribe was an indispensable party, and the action may not proceed with'out it. The
trial court properly dismissed this case on CR 19 grounds.
II. Motion to Modify
Washington has filed a motion to modify a commissioner's ruling that
denied remand. The original motion to remand sought remand in order to give
Washington an opportunity to factually develop whether the Tribe is in
compliance with the federal Indian Self Determination Act (ISDA).8 The ISDA
permits Native American tribes to contract with the Secretary of the Interior to
furnish services previously administered by the federal government. Evans v.
McKay, 869 F.2d 1341, 1346 (9th Cir. 1989). The ISDA further vests the
Secretary with discretion to require any tribe requesting such a contract to obtain
adequate liability insurance. Id. And, if a tribe enters into any such "self-
determination contracts," the insurance carrier must waive its rights to use
sovereign immunity as a defense, up to the policy limits. 25 U.S.C.
§ 5321(c)(3)(A).
8 25 U.S.C. §§ 5301-5423.
15
No. 75670-2-1/16
Washington did not raise this argument below. But, she brought a motion
to remand so that she could engage in further fact finding that would indicate
whether the ISDA waiver of sovereign immunity might apply. A commissioner of
this court treated this motion as a motion to add additional evidence under RAP
9.11, and denied the relief sought on the grounds that Washington did not satisfy
the RAP 9.11 requirements.. Washington then filed a' motion to modify the -
commissioner's ruling. 'Washington argues that the motion to modify ~should be
granted and remand is necessary, because if the case is not remanded, an entire
pool of tort victims—non-Tribe members whose assets are seized by tribes—will
have no legal remedy.
Washington makes a conclusory statement that she has satisfied the RAP
9.11 elements. But, she does not establish that RAP 9.11 has in I,fact been
satisfied. To provide additional evidence under RAP 9.11(a), a party must satisfy
, ;
the following six elements;
(1) additional proof of facts is needed to fairly resolve the issues on
review, (2) the additional evidence would probably change the
decision being reviewed, (3) it is equitable to excuse *a party's
failure to present the evidence to the trial court, (4) the remedy
available to a party through postjudgment motions in the trial court
is inadequate or unnecessarily expensive, (5) the appellate court
remedy of granting a new trial is inadequate or unnecessarily
expensive, and (6) it would be inequitable to decide the case solely
on the evidence already taken in the trial court.
Most notably, RAP 9.11(a)(3) has not 'been satisfied here. Washington states
that her failure to raise this federal claim below is due to her attorney being "
"unaware" of 25.U.S.C. § 5321(c)(3)(A). Thus, it appears that Washington's new
theory regarding the ISDA is a result of counsel discovering a federal statute,
16
No. 75670-2-1/17 ;
after dismissal below, that might tend to support her argument against,sovereign
immunity.
Because Washington does not establish that all six etements of'RAP 9.11
have been met, we deny the motion. And, because RAP 9.11 has not been
satisfied, we need not wade into the complex substantive federal ',questions
raised about the construction and applicability of 25 U.S.C. § 5321(c)(3)(A).
The resolution of this motion does not affect the preceding analysis on the
merits of the appeal. Washington's motion to modify is denied. -
III. Attorney Fees
i
Washington is not entitled to relief. Her request for attorney fees is
denied. ~
We affirm.
WE CONCUR:
17