IN THE TRIBAL COURT FOR THE CONFEDERATED SALISH AND KOOTENAI TRIBES OF THE FLATHEAD RESERVATION, PABLO, MONTANA

CAUSE NO 99-117-CV

  MEMORANDUM DECISION

ROBERT M. PEREGOY,

Plaintiff,

vs.

TRIBAL COUNCIL OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES,

RHONDA SWAYNEY, individually, DANIEL F. DECKER, individually,

and JOHN DOES 1-10, individually,

Defendants.[1]

 

  1.             The Plaintiff, the former Chief Justice of the Court of Appeals for the Confederated Salish and Kootenai Tribes, filed this instant action alleging that his contract as Chief Justice for the Appellate Court was breached by various actions of the named Defendants. Among other things, he alleges that the Defendants herein demanded that he resign his position as the Chief Justice of the Court of Appeals and withheld various payments due him on his contract because they were unhappy with various rulings he authored as the Chief Justice of the Appellate Court. In his complaint, he alleges five discrete causes of action, one of which he agreed to dismiss at oral argument.[2] The remaining counts request both declaratory and injunctive relief against the Defendants to enjoin alleged improper interference with the judicial branch of tribal government and monetary relief, including punitive damages, for the alleged breach of his employment contract and for an alleged tortious interference with his contract by several of the named Defendants.

  2.             The Defendants have moved this Court to dismiss the complaint on various grounds including failure to comply with Ordinance 93A of the Tribe, governing the rights of discharged tribal employees; failure to prosecute within the statutory time limits as set forth in Ordinances 93A and 97 of the Tribe; sovereign immunity of the Defendants in both their official and individual capacities; failure to state a claim upon which relief can be granted; the statute of frauds; and various other sundry defenses. The Court, Special Judge B.J. Jones presiding, heard oral argument on the motions to dismiss on September 20, 1999 with all parties appearing telephonically. The Court took the matter under advisement pending receipt of a copy of the employment contract that had been sent to the Plaintiff and executed by him. After review of the entire file and due consideration to the legal arguments submitted herein, the Court only deems it necessary to address the Defendants' argument that the Plaintiff failed to comply with Ordinance 93 A of the Tribe.

FACTS PRESENTED

  1.             In ruling on a motion to dismiss, a trial court must assume  the allegations contained in the complaint as true and correct and construe all reasonable inferences from those facts in a light most favorable to the Plaintiff. See Trankel v. State, 282 Mont. 348, 939 P.2d 614 (1997). Heeding that admonition here, it appears that the Plaintiff was appointed by Tribal Council Resolution No. 95-170 on June 27, 1995 to serve another[3] four-year term as the Chief Justice of the Court of Appeals. That resolution stipulated that the "details of the terms of Mr. Peregoy's service will be set forth in the terms of a contract between the Tribal Council and Mr. Peregoy." The Plaintiff then met with the Executive Secretary of the Tribe to draft a contract both for him and the Associate Justices of the Court. A proposed contract was then drafted by the Plaintiff, executed by him on August 17, 1995, and sent to the Chairman of the Tribe for his signature. That proposed contract contained language purporting to vest this Court with the "exclusive jurisdiction ... to hear any suit arising under or pursuant to this contract."[4] For undisclosed reasons, this contract was apparently never executed by the Chairman or any other tribal official. On October 13, 1995 the Tribal Council by resolution approved of contracts between the Plaintiff and the Tribe as well as the contracts for the Associate Justices "in accordance with the Contract terms." CS&T Resolution No 96-12. The resolution is unclear regarding which "Contract" the Council was referring to and the Court can only assume that the contract that had been generated by the Plaintiff is the contract referred to.  Notwithstanding this resolution, the contract sent by Plaintiff remained unexecuted because the Plaintiff sent the Chairman of the Tribe a letter on December 11, 1995, with the proposed contract enclosed once again, requesting that the Chairman sign the contract and forward payment for some services rendered on the contract. That was apparently never done as the contract offered by the Plaintiff in response to the Court's request does evidence his signature on August 17, 1995, but contains no signature of the Chairman or any other tribal official. It is therefore undisputed that the Tribe, nor its officials, executed the employment contract with the Plaintiff.

  2.              Despite the absence of an executed contract, the Plaintiff and his fellow Justices continued to hear and resolve appeals, some of which involved extremely complicated issues regarding the balance of power between the tribal judicial branch of government and the executive branch of government. One of these decisions, William Joseph Moran v. Council of the Confederated Salish and Kootenai Tribes, et al, 22 ILR 6149 (CS&K Ct. App. 1995), apparently generated some disquiet among tribal officials because it took a fairly broad perspective of the judicial branch of government’s authority to resolve disputes involving actions of the Council. In response to that decision, the Tribal Council enacted a governmental immunity ordinance, Ordinance 96, purporting to renunciate the Moran decision and to make the actions of the Tribal executive and legislative branch of governments insulated from judicial review except in limited circumstances.

  3.              Meanwhile, the Plaintiff was encountering difficulties getting paid for the work he performed as Chief Justice in completing the Moran decision. The complaint alleges that the Plaintiff was notified by the Executive Treasurer of the Tribe that he felt that the Plaintiff had already been compensated for the Moran decision through his retainer fee paid him pursuant to the contract he previously forwarded to the Tribe. The Plaintiff disagreed and further communications between the Plaintiff and various tribal officials ensued. This led to further disagreements between the Parties, the graveman of which revolved around the purpose of the retainer that the Plaintiff received on a quarterly basis from the Tribe as the Chief Justice,[5] and what appeared to Tribal officials to be an excessive amount billed for the Plaintiff’s work on the Moran decision.[6]

  4.              While these disagreements festered, the Plaintiff was again attempting to negotiate a contract which the Tribe would execute. He met on several occasions with various tribal officials and was govern assurances that the contract would be executed by the Tribe. However, in March of 1995, after the Plaintiff and several of the Associate Justices of the Court had met with the Tribe and officials, the Plaintiff received a phone call from Defendants Swaney and Decker wherein Swaney indicated that the Council had come to the conclusion that the Plaintiff did not “support certain tribal officials” and that the Council did not intend to execute the contract that the Plaintiff had forwarded. In that conversation, held on March 25, 1996, Swaney verbally requested the Plaintiff’s “resignation” from his position as Chief Justice of the Appellate court. The Plaintiff demanded that the Tribe bring removal charges against him, which he contended he would successfully defend against.

  5.              Based upon this course of events, the Plaintiff came to the conclusion, after conferring with the other Justices of the Appellate court, that he was the victim of retaliation by the Council because of the Moran decision and that all the difficulties he was encountering in getting his contract executed and certain bills paid was the direct result of his expansive view of judicial authority expressed in Moran.[7] He decided to resign on or about March 28, 1999 and indicated to Defendant Swaney that he would resign provided his bills and expenses were paid. Swaney responded by indicating that his bills were paid once his resignation was in hand. The Plaintiff then proferred his resignation on May 1, 1996 giving an effective date of resignation of July 31, 1996. The Plaintiff then received payment for other billings and ultimately billed the Tribe for more work. The Tribe paid all but $290.00 that the Plaintiff billed.

  6.              Almost three years passed and the Plaintiff never filed any administrative grievance under Ordinance 93A to complain about the alleged improper actions of the Tribe and its officials which led to his resignation. Instead, on or about April 29, 1999 he commenced the instant action for declaratory, injunctive and monetary relief requesting that this Court declare the actions described herein to be in breach of his contract, violative of the separation of powers provision inherent in the Tribe’s Constitution and organic law, and evidence of a tortious interference with his contract by certain of the named tribal officials acting in their individual capacities.  

LEGAL ANALYSIS

  1.             The Confederated Salish and Kootenai Tribes of the Flathead reservation have enacted by ordinance a provision governing the wrongful discharge of “tribal employees” from their employment. That ordinance, No. 93A, sets up an administrative procedure which must first be utilized before a discharged employee may invoke this Court’s jurisdiction. Once those administrative remedies are exhausted, an employee may seek an award of monetary damages against the Tribe in the Tribal Court and this Court may award monetary damages from the time of wrongful discharge to the time of court adjudication. The ordinance even permits this Court to award exemplary damages in an amount not to exceed $2,500. Because this provision represents a limited waiver of the Tribe’s sovereign immunity from suit it must be strictly construed and adhered to. See White Mountain Apache Tribe v. Hodel, 840 F.2d 675 (9th Cir. 1988).[8]The ordinance also permits those employees who have been constructively discharged, as the Plaintiff contends herein, to utilize the administrative remedies created by the Tribe. See Ordinance 93A, section 3(A).

  2.               That ordinance is fairly expansive with regard to the definition of employee defining that term to include “any person who works for the Tribal government in any of it’s(sic) departments or programs ……whether by employment contract, temporary hire, verbal agreement, employment at will or any other employment situation whereby the Tribal government………gives compensation for any services provided by the Tribe. However, the term does not include a person who is an independent contractor if the contract between the Tribes and such independent contractor clearly and specifically indicates that the person shall not be deemed an employee subject to the provisions of this ordinance.” (Emphasis added). Any discharged employee of the Tribe, include those constructively discharged, has the right to seek redress through this Court only after all available administrative remedies, made available to the Tribal employee under Ordinance 69B, have been exhausted. However, any cause of action brought to contest a wrongful discharge must be brought within one year of the wrongful termination. Ordinance 93A, Section 6(A). Failure to exhaust administrative remedies is an independent and absolute defense to an action brought before this Court seeking damages for wrongful termination. See Ordinance 93A, Section 6(B).

  3.               The Plaintiff goes to great lengths in his written submissions to this Court to take himself outside the coverage of 93A. First, he contends that he was an independent contractor and thus not covered by 93A. As proof of this, he cites to a provision in the putative contract he executed which purports to vest this Court with jurisdiction over any claim arising under that contract. Conspicuously, that section of the unexecuted contract does not expressly exempt him from Ordinance 93A coverage, as mandated by the clear language of 93A itself. The Plaintiff also appears to equate the argument that the statute of frauds should not bar this action, because there is sufficient written indicia of his employment contract with the Tribe, with the discrete and unrelated argument that there is contractual language in the unexecuted contract that exempts him from compliance with 93A. In essence, the Plaintiff’s argument is that this Court should enforce a contract, which the Plaintiff himself acknowledges was not executed by the Defendants, and construe a provision of the unexecuted contract as exempting him from Ordinance 93A even though it does not adhere strictly to the language of 93A.

  4.               The Court concludes that Ordinance 93A commands dismissal of the counts in the complaint alleging breach of contract and tortious interference with contract. The remaining counts for injunctive relief and declaratory relief will be dismissed for failure to state claims upon which relief can be granted. To reach this conclusion, the Court will analyze the Plaintiff’s assertions that 93A does not bar this action under both the theory that the Plaintiff did not have an executed contract and the theory propounded by him that the contract he executed is enforceable because of various other written indicia of its existence and enforceability.

  5.               Ordinance 93A constitutes a clear and unequivocal waiver of tribal sovereign immunity to the extent that a party complies with the terms of its clear language. Because it is a waiver of the defense of sovereign immunity, it must be interpreted narrowly, as a liberal interpretation would violate the principle that waivers of immunity must be clearly and unambiguously stated. See Santa Clara Pueblo v. Martinez, 439 US 46 (1978)(Indian Civil Rights Act not an express congressional waiver of tribal sovereign immunity in federal court). Any waiver of immunity must be "unequivocally expressed, and may not be implied." See Santa Clara Pueblo, at 58.   In Weeks Construction, Inc v. Oglala Sioux Housing Authority, 797 F.2d 668, 670 (8th Cir. 1986). Therefore, even if a Tribe enacts a generic law permitting itself or tribal entities to be sued in a court of competent jurisdiction, that law does not specifically waive sovereign immunity unless there is strict compliance with the law. In Dillon v. Yankton Sioux Tribe Housing Authority, 144 F.3d 581 (8th Cir. 1998) a terminated non-Indian employee of an Indian Housing Authority brought suit in federal court asserting that his termination violated various federal civil rights statutes, including apparently the Indian Civil Rights Act.[9] In response to an argument that the Tribe's corporate charter creating the Housing Authority contained a "sue and be sued clause", waiving the Defendant's immunity from suit, the Eighth Circuit retreated from its stated position in Weeks that such language is sufficient to waive the Housing Authority's immunity. The Dillon court held that the dicta in Weeks intimating that a "sue and be sued" clause was an express waiver of sovereign immunity in a court of proper jurisdiction was limited to cases where "an express waiver of sovereign immunity was found in a written contract." Dillon, at 583. The Dillon court thus held that even if a Tribe has waived its immunity from suit by statutory enactment, a Court must determine whether the contract in question complies with the waiver provisions of tribal law.

  6.               This analysis is equally apposite here, even though it comes in the context of determining whether a tribal ordinance mandating exhaustion of tribal remedies and proscribing commencement of wrongful termination actions after one year has been complied with. On its face, Ordinance 93A applies to the Plaintiff because, in his best case scenario, he was employed by the Tribe under a contract and he was receiving compensation for the services he performed. See Ordinance 93A, Section 3(C).He asserts that his contract was breached and that he was forced to resign because of the wrongful actions of the Defendants. Ordinance 93A covers constructive discharges, as well as breaches of employment contracts. It is also broad enough to encompass actions alleging tortious interference with contractual relations because it, at Section 5(C), stipulates that Ordinance 93A is the exclusive remedy to “recover damages for wrongful discharge.”

  7.             The Plaintiff asserts that he is not bound by the provisions of Ordinance 93A because the employment contract he drafted and executed to effectuate the Tribe’s expressed intent to hire him as the Chief Justice of the Appellate Court for four years contains a provision vesting this Court with the “exclusive jurisdiction …… to hear any suit arising under or pursuant to the Contract.” Conspicuous by its absence is any reference to Ordinance 93A in this contractual language.

  8.             The Plaintiff asserts that this language should be enforceable, and that it constitutes an express waiver of sovereign immunity in the instant case, because the contract in which it is contained is enforceable under two exceptions to the Statute of Frauds- the independent written indicia of the existence of the contract and partial performance. The latter is of no avail to the Plaintiff herein because, as his counsel conceded at oral argument, that exception only entitles him to compensation up to the point of his partial performance, which in this case he has been compensated for, except for a minor amount.[10] Nor is the former exception of any utility to the Plaintiff in avoiding the application of Ordinance 93A. It appears to the Court that the Plaintiff may very well be correct in his assertion that other written indicia of the contractual relationship, including various tribal council resolutions evidencing an intent to enter into a contract with the Plaintiff, may take this case out of the Statute of Frauds. However, that does not mean that all provisions in the unexecuted contract proffered by the Plaintiff for the Tribe’s execution are the contractual terms enforceable in this Court. Nowhere in the language of any of the independent written materials evidencing the intent of the Tribe to enter into a four-year contract with the Tribe as Chief Justice is there any suggestion that the Plaintiff’s contract would be exempted from Ordinance 93A. The Court cannot enforce the specifics of a written contract which all Parties acknowledge was not executed by one of the contracting parties.

  9.               Even if the Court were to conclude that the contract executed by the Plaintiff and all the provisions contained therein are fully enforceable, notwithstanding the Defendants’ failure to execute it, such a conclusion would not exempt this action from Ordinance 93A. The language which the Plaintiff contends exempts him from Ordinance 93A is insufficient to relieve him of the mandates of that ordinance. The “independent contractor” exception to the application of Ordinance 93A requires that the “contract between the Tribes and such independent contractor clearly and specifically indicate that the person shall not be deemed an employee subject to the provisions of this ordinance.” (Emphasis added). If such language is not included in the contract, Ordinance 93A controls and must be adhered to prior to commencing an action in this Court. Even should the Court conclude that the language of his putative contract takes him outside the provisions of Ordinance 93A, he then faces the daunting task of demonstrating that the Tribe and the Defendants are not immune from this suit. It should be remembered that 93A is a waiver of sovereign immunity and any independent contractor who argues that he is exempted under 93A is therefore not entitled to utilize it as grounds for avoiding the immunity defense

  10.               The Court concludes that the language of the Plaintiff’s inchoate contract with the Tribe, even if found to be fully enforceable in all its terms, does not exempt him from complying with the provisions of Ordinance 93A. Because the Plaintiff has failed to demonstrate that he has exhausted any administrative remedies he may have had,[11] and because this cause of action arose more than one year ago, the Court dismisses the counts in the complaint alleging breach of contract and tortious interference with contract.

  11.               Of course, as the Plaintiff adeptly points out in his written submissions, the Moran decision stands for the proposition that a waiver of sovereign immunity is not necessary in a case where the Tribe or its officials exceed their authority and in so doing violates the Indian Civil Rights Act. Moran, at 6157.  However, even in that case, the Court noted that such action does not render the tribal official liable for monetary damages. To parlay a simple breach of contract action into the sphere of the Indian Civil Rights Act, even to justify prospective declaratory and injunctive relief[12], however, the Plaintiff would have to demonstrate a property right to his position as Chief Justice of the Appellate Court. The Plaintiff cannot do that in the case at bar because he did not even have an executed contract as Chief Justice. In addition, it appears to the Court that the Plaintiff'’ principal contention is that his “contract” was breached by the actions of the Defendants, not that he was forced to resign his position as Chief Justice. If this Court were to hold that every breach of a contract arose to the level of a due process violation, it would be inviting a limitless number of contractual disputes to be litigated under the banner of civil rights violations.

  12.               The Court therefore concludes that Ordinance 93A was the exclusive route for the Plaintiff to pursue his request for monetary damages against the Defendants for an alleged breach of contract and tortious interference with contract and that he failed to comply with the provisions contained therein. For that reason, those two counts of his complaint will be dismissed.

  13.               The Plaintiff’s remaining two counts are a bit more esoteric. As the Court understands Count One of the complaint, as tempered by the concessions of his counsel at oral argument, the Plaintiff requests that this Court declare that the Defendants’ actions in interfering with the performance of his duties as Chief Justice and demanding his resignation deprived him of a property right protected under the Indian Civil Rights Act, see 25 USC 1302. The Court must decline this request because, in light of the dismissal of the causes of action praying for monetary damages and the Plaintiff’s failure to request reinstatement as relief, such a declaration would provide no concrete relief to the Plaintiff and would essentially constitute an advisory opinion. Courts should decline to issue declaratory rulings which provide no meaningful redress to the parties involved. See Allen v. Wright, 468 US 737, 753 n.19 (1984). To embark on a detailed analysis of whether this particular Plaintiff had such a unique contractual relationship with the Tribe here to vest him with protected property interests under the Indian Civil Rights Act, when the Court has already ruled that his exclusive remedy for monetary redress was through Ordinance 93A, would be a waste of judicial time and a waste of the reader’s efforts.

  14.             Similarly, the Plaintiff’s request that this Court enjoin future interferences by these Defendants with the operation of the Tribal courts requests relief which will not provide any form of redress to the Plaintiff. The Plaintiff is no longer associated with the Tribal Court, nor does he express an interest in regaining his position as Chief Justice. Therefore, it is difficult to imagine how such an injunction would benefit him as he makes no attempt to demonstrate how the possibility of future interference would impair his interests, rather than the interests of the tribal membership

[1] During the pendency of this action, the Chairman of the Tribe, Michael T. Pablo, died. He was named as a party Defendant in the instant action, but will be dismissed from this action because of his death.

[2] That cause of action was for slander against certain of the individually-named Defendants. See Count V of Plaintiff's complaint.

[3] The Plaintiff had initially been appointed the Chief Justice of the Court of Appeals in 1991 and completed his term in 1995.

[4] In his complaint, the Plaintiff asserts that this provision contained in the contract he executed constitutes a waiver of the sovereign immunity of the Tribe. Although the Court need not resolve that issue because of the manner of disposition of this complaint, the Court notes that choice of forum provisions in a contract have been determined not to have waived the sovereign immunity of Indian tribes.

[5] The Tribe apparently took the position that the compensation for the services performed by the Plaintiff should come out of the retainer first and that he should bill only after the retainer had been exhausted, while the Plaintiff contended that the retainer was the base pay for the regular court sessions held on a quarterly basis.

[6] . It appears from the complaint of the Plaintiff that he billed the Tribe in excess of $22,000 for authoring the Moran decision. The Tribe has paid all of the amounts billed by the Plaintiff on that decision.

[7] Because the Court is ruling on a motion to dismiss brought by the Defendants, this Court will draw the inference that the Plaintiff does in his complaint, namely that he was being targeted for removal by the Council because of  his opinion in Moran. However, the Court would note that the Plaintiff acknowledges that he was paid for his work on the Moran decision and that the concerns expressed by the Tribe were always of a monetary nature and never dealt specifically with the Plaintiff’s philosophy regarding tribal court authority to review council actions. The Court would note that the facts as alleged by the Plaintiff himself, could just as easily be construed as the product of a legitimate concern of the Council regarding his billing practices and the need to preserve tribal resources.

[8] This case is distinguishable from the Appellate Court’s decision in Pablo v. CS&K Tribes, No 92-CV-170-Ap, wherein the Court held that exhaustion was not mandatory under Ordinance 69B of the Tribe because the grievance there involved a complaint regarding the “tribal policies or general management decision.” Ordinance 93A does not contain a similar exception to the exhaustion requirement, nor does the Plaintiff’s complaint herein involve such a grievance.

[9] . See 25 USC 1301 et seq.

[10] . It appears from the pleadings that there remains a small amount, $290 out of the almost $55,000 that the Plaintiff billed, which has not been paid.

[11] . The Court notes that the Plaintiff is in somewhat of a Catch-22 with regard to any arguments surrounding the availability of administrative remedies. If he argues that none were available, his causes of action for breach of contract and tortious interference would clearly be barred by the one-year statute of limitations. The Court takes no position regarding whether administrative remedies did exist or whether Plaintiff can, even to this day, avail himself of such remedies as such is not necessary for the resolution of the instant dispute.

[12] . It should be noted that the Plaintiff does not pray for reinstatement to his position, a remedy that would potentially be available should a party be able to demonstrate a deprivation of a property right in  violation of the Indian Civil Rights Act.

 

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