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Stillaguamish Tribe of Indians v. State

United States District Court, W.D. Washington

August 9, 2017

STILLAGUAMISH TRIBE OF INDIANS, Plaintiff,
v.
STATE OF WASHINGTON and ROBERT W. FERGUSON, Defendants.

          ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN United States District Judge

         This matter comes before the Court on cross motions for summary judgment filed by the defendants, State of Washington and Robert W. Ferguson (“the State”) (Dkt. 26) and the plaintiff, Stillaguamish Tribe of Indians (“the Tribe”) (Dkt. 28). The Court has considered the pleadings filed by the parties, oral argument held on August 4, 2017, and the remainder of the file herein.

         The primary-and ultimately dispositive-issue before the Court is the enforceability of a sovereign immunity waiver in a contract, Salmon Project Agreement 04-1634, which was signed by Mr. Pat Stevenson, an employee and non-member of the Tribe. For the reasons discussed below, the Court finds that summary judgment should be granted against the State and in favor of the Tribe, because the Tribe did not unequivocally waive its sovereign immunity.

         FACTS

         The parties agree that the facts are largely undisputed. All facts recited are either agreed or unrefuted by the record.

         A. The Tribe, its constitution, and governing body.

         The Stillaguamish Tribe of Indians Tribe gained federal recognition in 1976. The Tribe is governed by its Constitution. Dkt. 27-2 (Decl. Latsinova, Ex. B). Under Article VII of the Tribe's constitution, a six-member Board of Directors has “power and duties” “includ[ing] but not limited” to the following:

(b) To administer the affairs and assets of the tribe including tribal lands, funds, minerals, timber, water rights, fishing rights, and other resources under appropriate contracts, leases, permits, loans, or sale agreements.
(f) To negotiate with and represent the tribe before Federal, State, tribal, and local governments and their departments and agencies, and to advise and consult with representatives of the Department of the Interior of all activities of the Department that may affect the Stillaguamish Tribe.
(g) To appoint necessary committees.
(h) To have and exercise such other powers and authority necessary to fulfill its obligations, responsibilities, objectives, and purposes as the governing body of the tribe, except as limited by other provisions of this Constitution. . .

Id. The constitution gives the Chairperson of the Board “any authority delegated to him/her by the Board of Directors.” Dkt. 27-2 (Decl. Latsinova, Ex. B. Dkt. 27-2).

         Mr. Shawn Yanity was Chairperson of the Board from 2004 to 2009 and 2010 to present.Dkt. 29 at 1, 2 (2nd Decl. Yanity, ¶¶1, 4). At the relevant time during 2005, Mr. Edward Goodridge, Jr. was Vice-Chairperson of the Board and the Tribe's Executive Director. Dkt. 10 at ¶5 (Decl. Yanity).

         B. Salmon Project Agreement No. 04-1634 and the Centennial Grant

         Mr. Stevenson has been the Tribe's Environmental Engineer for approximately 30 years. Mr. Stevenson is not an enrolled member of the Tribe and is therefore not eligible to be a Director. Dkt. 10 at ¶5 (Decl. Yanity). On April 6, 2005, Mr. Stevenson signed Salmon Project Agreement No. 04-1634. Dkt. 27-1 (Decl. Latsinova, Ex. B).

         There is no written record, either in the form of Board meeting minutes or resolutions, that the Board considered Salmon Project Agreement No. 04-1634. Dkt. 31 (Decl. Connolly, ¶¶2, 3). Mr. Stevenson testified that he “approached the executive director of the Tribe . . . Ed Goodridge, Jr.” about signing the agreement. Mr. Goodridge instructed Mr. Stevenson to sign the agreement because, per Mr. Stevenson, “it was to the point of I'm not going to be around for the next week, to go ahead and sign it.” Dkt. 27-13 at 7, 8 (Decl. Latsinova, Ex. M, 88-17-89:3). The Chairperson, Mr. Yanity, was apparently also absent. See Dkt. 27-13 at 11 (Decl. Latsinova, Ex. M, 104:9).

         Salmon Project Agreement No. 04-1634 (Dkt. 27-1, Decl. Latsinova, Ex. A) sets out contractual obligations of the Tribe and the Salmon Recovery Funding Board (SRFB), the entity responsible for administering the Salmon Funding Accounts for the State of Washington. In consideration for a state grant of $497, 000, the Tribe, referred to in the agreement as the “Sponsor, ” was to execute a project entitled, “Steelhead Haven Landslide Remediation.”

         Two sections of Salmon Project Agreement No. 04-1634 are pertinent to this case.Section 5, the indemnification clause, provides:

To the fullest extent permitted by the law, the Sponsor expressly agrees to and shall indemnify, defend and hold harmless the State . . . against all claims, actions, costs, damages, or expenses of any nature arising out of or incident to the Sponsor's or any Contractor's performance or failure to perform the Agreement.

Id. Section 41, which could be referred to as the waiver clause, provides:

         In the cases where this agreement is between the Funding Board and a federally recognized Indian tribe, the following Governing Law/Venue applies:

A. The State of Washington agrees that it shall initiate any lawsuit . . . in Federal Court. Interpretation shall be according to the law of the State of Washington. . . The parties agree to venue in Thurston County Superior Court [in the event that the Federal Court lacks subject matter jurisdiction].
B. Any judicial award, determination, order, decree or other relief, whether in law or equity or otherwise, resulting from the action shall be bending and enforceable. Any money judgment against the Tribe, tribal officers and members, or the State of Washington . . . may not exceed the ...

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