United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANTS' MOTION FOR JUDGMENT ON THE
PLEADINGS DKT. #36
B. Leighton United States District Judge.
MATTER is before the Court on Defendants Nisqually Tribe,
John Simmons, and Elatta Tiam's (collectively “the
Tribe Defendants”) Motion for Judgment on the
Pleadings. Dkt. #36. After being arrested and charged with a
crime in the City of Lacey, Bell was held for 19 days at a
detention facility owned and operated by the Nisqually Tribe
on Reservation land. The facility detains non-tribal members
pursuant to an Agreement between the Tribe and the City of
Lacey whereby the latter pays the former for incarceration
services. At the end of his time at the facility, Bell
suffered a stroke.
now sued numerous parties including the Nisqually Tribe, the
Tribe's Chief Executive Officer John Simmons, and its
Chief Financial Officer Eletta Tiam (Bell also sued several
Doe Defendants who allegedly failed to give him medical
treatment, but they are not the subject of this Order). Bell
alleges claims for false imprisonment, declaratory and
injunctive relief, negligent infliction of emotional
distress, and negligence against all three Tribe Defendants.
Bell alleges a claim for deliberate indifference to medical
needs under the Fifth and Fourteenth Amendments and breach of
contract against the Tribe alone. Bell alleges a claim for
conspiracy to violate his constitutional rights against
Simmons and Tiam alone.
April 18, 2019, the Tribe Defendants moved to dismiss
Bell's claims against them, arguing that the claims are
barred by sovereign immunity, factually implausible, and
time-barred. After oral argument on June 18, 2019, the Court
rules as follows:
American tribes and their governing bodies possess sovereign
immunity and may not be sued absent express and unequivocal
waiver of immunity by the tribe or abrogation of immunity by
Congress. Santa Clara Pueblo v. Martinez, 436 U.S.
49, 58-59 (1978). However, the Ninth Circuit has held that
tribal officers allegedly violating federal law are not
immune from suits seeking prospective relief under the
doctrine of Ex Parte Young. See Burlington N.
& Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1092
(9th Cir. 2007) (citing Burlington N. R. Co. v. Blackfeet
Tribe of Blackfeet Indian Reservation, 924 F.2d 899, 901
(9th Cir. 1991) (overruled on other grounds)).
case, no waiver or abrogation has occurred. Consequently, the
claims for monetary relief against the Tribe Defendants must
be dismissed. However, because Bell's complaint cites
Ex Parte Young but the parties do not address it in
their briefs, the Court lacks sufficient materials to decide
whether Bell's claim for declaratory and injunctive
relief against Simmons and Tiam can be dismissed. That
question is therefore reserved pending further briefing.
primary argument is that he may sue the Tribe as a
third-party beneficiary of the Tribe's Agreement with the
City. The Agreement waives the Tribe's sovereign immunity
to the following extent:
The Nisqually Indian Tribe is a Sovereign Nation with all
immunities attendant thereto AYITH THE FOLLOWING EXCEPTION
THAT THE PARTIES TO THIS AGREEMENT HAVE SPECIFICALLY
The Nisqually Indian Tribe does hereby expressly consent to
venue in the courts of the State of Washington for any legal
dispute by and between the parties to this agreement and
further agrees that any such dispute shall be interpreted
pursuant to the Lr-.vi of the state of Wellington
Dkt. #9, Ex. A, at ¶15. According to Bell, he is
included as a “party” to the Agreement and can
therefore sue the Tribe in a state or federal court.
Washington law, “[t]he creation of a third-party
beneficiary contract requires that the parties intend that
the promisor assume a direct obligation to the intended
beneficiary at the time they enter into the contract.”
Postlewait Const, Inc. v. Great Am. Ins. Companies,
106 Wash.2d 96, 99 (1986) (quoting Lonsdale v.
Chesterfield, 99 Wash.2d 353, 361 (1983). The inquiry
focuses on objective criteria and asks “whether
performance under the contract would necessarily and directly
benefit” the third party. Id. “An
incidental, indirect, or inconsequential benefit to a third
party is insufficient to demonstrate an intent to create a
contract directly obligating the promisor to perform a duty
to a third party.” Kim v. Moffett, 156
Wash.App. 689, 701 (2010).
the Agreement expressly allocates mandatory responsibilities
for medical treatment and transportation to the City. Dkt.
#9, Ex. A, at ¶8, 9 (“Lacey shall be solely
responsible for the medical care and medical expenses of
prisoners”). While the Agreement states that the Tribe
must provide “room and board” to inmates, this
does not show that the parties intended to create a
contractual obligation. Furthermore, even if inmates could be
considered third-party beneficiaries under the Agreement, the
waiver of sovereign immunity does not clearly encompass
claims brought by third parties. The Agreement only waives
sovereign immunity for disputes between “the parties to
this agreement, ” the same “parties to this
agreement” that are also referred to as having
“specifically negotiated” the waiver exception.
Dkt. #9, Ex. A, at ¶15. Because future prisoners like
Bell did not and could not have taken part in negotiations,
the phrase “parties to this agreement” was
intended to encompass only the Tribe and the City.
Consequently, the Agreement does not “unequivocally
express” an intent to waive sovereign immunity for
third-party beneficiaries. See Santa Clara Pueblo,
436 U.S. at 58.
remaining arguments also lack merit. Bell spends much space
arguing that his claim “sounds in habeas” because
he alleges that the Tribe's Agreement to detain state
prisoners is illegal. Dkt. #39 at 3-4. Therefore, according
to Bell, the Tribe is a proper defendant under the Indian
Civil Rights Act, which permits federal courts to adjudicate
habeas petitions. See Tavares v. Whitehouse, 851
F.3d 863, 870 (9th Cir. 2017).
as the Tribe Defendants correctly point out, Bell cannot
maintain a habeas action when he is no longer being detained.
See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004).
There is no dispute that Bell has been released from Tribal
custody and there is no clear indication that he will be
returned to it. Even if there were, so long as Bell is not in
custody, any habeas action would be speculative and
premature. Indeed, the Ninth Circuit interpreted the Indian
Civil Rights Act's habeas provision to be even narrower
than federal ...