Washington COA Holds State Courts Have Subject Matter Jurisdiction over Tribal Corporation

Here is the opinion in Outsource Services Management v. Nooksack Business Corporation:

Wash COA Opinion

And the briefs:

Outsource Services Management, Respondent v. Nooksack Business Corporation, Appellant
Case Number – 67050-6
Hearing Date – 09/20/2012

This entry was posted in Author: Matthew L.M. Fletcher, economic development, Research, sovereign immunity and tagged , , , , , . Bookmark the permalink.

6 Responses to Washington COA Holds State Courts Have Subject Matter Jurisdiction over Tribal Corporation

  1. Ed says:

    Has anyone seen the subject matter jurisdiction argument that Nooksack is asserting here succeed? Seems like a stretch (given the SI waiver), since state subject matter jurisdiction is generally quite broad, but not untenable, and the court’s analysis on the issue isn’t particularly persuasive.

    • I haven’t really studied the opinion, but would have thought a state court would have subject matter jurisdiction because it’s a PL 280 state — unless someone filed in tribal court first in a sort of race to file analysis like they do in New York state. But in a state without PL280 jurisdiction, Williams v. Lee would have more import.

      • Ed says:

        If you have time, take a look at the opinion. Nooksack addressed the PL 280 argument, and the court shot it down, but not along the lines you describe (or that one would have expected). I agree that the Williams argument would be much stronger in a non-PL 280 state, but the court’s take on PL 280 – at least on my quick read-through this morning – seems odd. Maybe it’s just that I haven’t had my morning coffee yet.

  2. Brent Leonhard says:

    This is an interesting case. The court is saying it has subject matter jurisdiction outside of any PL 280 analysis (Washington clearly never asserted such authority when it opted into PL 280, see RCW 37.12.010). Beyond the PL 280 discussion, the tribe claims Williams v. Lee prevents assertion of state subject matter jurisdiction. The court argues Williams is inapplicable because it involved individual Indians rather than tribal nations. I’m not sure how that makes Williams less applicable. Nonetheless, the core reason for the Williams decision was that allowing state jurisdiction in that case would undermine the authority of tribal courts over reservation affairs thereby infringing on the right of Indians to govern themselves. This case is clearly distinguishable from Williams in that the tribe explicitly waived its immunity from suit and, arguably, agreed that it could be sued in state court. It is hard to imagine how that situation amounts to an infringement on the right of self governance.

    Setting all of that aside, it appears to me that missing from the case is any discussion as to whether the State of Washington Constitution divests state courts of authority to assert jurisdiction even with these facts. Article 4 gives superior courts original jurisdiction over all cases and proceedings in which jurisdiction has not been exclusively vested in some other court. At the same time Article 26 amounts to an agreement and declaration that “Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States…” Despite the language of Article 26, the courts have held that Washington could assert PL 280 jurisdiction without a constitutional amendment because the preamble to Article 26 states that it is “irrevocable without the consent of the United States and the people of this state.” Relying on Boeing Aircraft v. Reconstruction Fin. Corp, 171 P.2d 838, the courts have held that the combination of PL 280 and Washington’s legislative enactment of RCW 37.12.010 meet the preamble’s requirement. See State v. Paul, 53 Wash.2d 789. However, if jurisdiction in this case is being asserted over a matter arising on Indian lands involving an Indian tribe and is being done outside of the context of PL 280 and RCW 37.12.010 (which is what the court is saying), you can’t rely on Boeing or Paul to overcome Article 26’s broad jurisdictional bar. Maybe a loan agreement doesn’t fall under the “Indian lands” language of Article 26, but that seems hard to argue in this case where the loan is secured by equipment and proceeds from a business being run by the tribe on Indian land (the tribe’s casino).

  3. Connie Sue Martin says:

    I certainly appreciate your insights, Brent! The Washington State Supreme Court has accepted the Tribe’s petition for review. Supplemental briefs are due in August.

  4. Pingback: Nooksack Petition for Review in Sovereign Immunity Appeal | Turtle Talk

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