Cadet v. Snoqualmie Casino

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

ANNETTE CADET, CASE NO. C19-1953JLR Plaintiff, ORDER DISMISSING CASE FOR v. LACK OF JURISDICTION SNOQUALMIE CASINO, Defendant.

Before the court is Defendant Snoqualmie Casino’s (“Snoqualmie” or “the Casino”) response to the court’s order to show cause why it is entitled to tribal sovereign immunity. (Snoqualmie OSC Resp. (Dkt. # 16).) Although Plaintiff Annette Cadet opposed Snoqualmie’s initial motion to dismiss (5/1/20 Cadet Resp. (Dkt. # 14)), she did not file a response to the court’s order to show cause (see generally Dkt.). The court has considered Snoqualmie’s response to the order to show cause, the relevant portions of the record, and the applicable law. Being fully advised, the court concludes that Snoqualmie is entitled to tribal sovereign immunity and DISMISSES this case for lack of

subject-matter jurisdiction. A. Factual Background Ms. Cadet lives in Bellevue, Washington. (See 2d MFP (Dkt. # 5) at 1; 5/1/20 Cadet Resp. at 6.)1 On or about May 3, 2018, she paid Snoqualmie ten dollars for round-trip transportation via bus from Seattle to the Casino. (Compl. (Dkt. # 7) at 5; but

see 5/1/20 Cadet Resp. at 1 (claiming the events took place on May 2, 2018).) However, she missed the last bus home that night and had no money to take a taxi. (5/1/20 Cadet Resp. at 1.) She asked the Casino’s security personnel for a ride home, and they told her she “could wait for the next bus in the morning.” (Id.) Ms. Cadet avers that one of the Casino’s patrons pointed at Ms. Cadet and complained about her presence, and the

Casino’s security personnel asked Ms. Cadet to leave at around 2:00 a.m. (Id. at 1-2.) Ms. Cadet claims she told the security guards that she had come on the bus and asked for a “courtesy ride,” but the Casino called the police instead. (Id. at 2.) Three officers from the Snoqualmie Police Department soon arrived, and Ms. Cadet asked them for a ride home. (Id.) Ms. Cadet claims one officer told her that he did

not care about her situation and that she lived too far away to give her a ride. (See id.) It is unclear what exactly happened next, but Ms. Cadet, who is black, claims that

1 Unless otherwise noted, all page numbers throughout this order refer to those provided by the court’s electronic filing system (“ECF”). Snoqualmie’s staff assisted the police officers in degrading, abusing, assaulting, and injuring her because of her complexion. (See id. at 2-3.) Ms. Cadet says that she

experienced “physical, emotional[,] and mental pain . . . after those inhuman[e] treatments. I was treated as a real criminal.” (Id. at 2.) Ms. Cadet asserts that “[t]he Snoqualmie Casino caused the police to torture[] me. They injured my right shoulder, left arm[,] left knee, [and] hit my head causing [a] nose bleed [and a] cut lip. One [officer] was kneeling on top of me.” (Id. at 3.) Ms. Cadet’s complaint alleges the following:

On [May 3, 2018,] at [the] Snoqualmie Casino, the defendant[]: (1) performed acts that a person of ordinary prudence in the same or similar circumstances would not have done; or (2) failed to perform acts that a person of ordinary prudence would have done under the same or similar circumstances because . . . [the] Casino provided transportation and at [2:00 a.m.] refused to transport me [back to Seattle] after I lost all [of my] money and [had] no other options.

(Compl. at 5.) Furthermore, Ms. Cadet alleges that she lost her job, lost wages, experienced “[r]acial discrimination,” suffered “[e]motional stress,” and endured “[p]ersonal injuries,” including a dislocated shoulder, due to the Casino’s actions. (Id. at 5-6.) She is requesting $100,000.00 in damages from Snoqualmie. (Id. at 5.) B. Procedural History On December 30, 2019, Ms. Cadet filed suit pro se against Snoqualmie, alleging negligence and discrimination. (Id. at 1, 5.) Snoqualmie responded to Ms. Cadet’s complaint with a motion to dismiss. (See generally MTD (Dkt. # 9).) Snoqualmie argued that there were three reasons Ms. Cadet’s complaint should be dismissed: (1) lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) because Snoqualmie has sovereign immunity and Ms. Cadet failed to identify a basis for jurisdiction in the complaint; (2) failure to state a claim on which relief can be granted under Fed. R. Civ. P.

12(b)(6); and (3) improper service under Fed. R. Civ. P. 12(b)(5). (Id. at 1.) Because Snoqualmie raised questions about the court’s subject-matter jurisdiction in its motion to dismiss but failed to adequately support its argument regarding the Casino’s entitlement to tribal sovereign immunity, the court struck Snoqualmie’s motion to dismiss and issued an order to show cause regarding the Casino’s tribal immunity and the court’s subject-matter jurisdiction. (See 5/1/20 Order (Dkt. # 15) at 2-4.) Snoqualmie

responded to the court’s order, arguing that the Casino functions as an “arm” of the Snoqualmie Indian Tribe (“the Tribe”) and shares in its sovereign immunity. (See Snoqualmie OSC Resp. at 4-7.) Snoqualmie also provided copies of the Tribe’s Snoqualmie Entertainment Authority Act of 2006 (“SEA Act”), Gaming Act, Tort Claims on Snoqualmie Tribal Lands Act (“Tort Claims Act”), Judiciary Act, and constitution.

(Digre Decl. (Dkt. # 17) ¶¶ 3-4, Exs. A2 (“Acts”), B (“Snoqualmie Const.”).) Snoqualmie asserts that these documents establish its immunity from Ms. Cadet’s suit. The court now considers Snoqualmie’s response. //

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2 References to the four tribal statutes within this exhibit include the ECF page number as well as a parenthetical reference to the specific section of the relevant act. For example: (Acts at 2 (SEA Act § 3.0).). A. Whether Snoqualmie Has Waived Its Sovereign Immunity

1. Legal Standards Before the court can consider the merits of Ms. Cadet’s complaint, it must establish whether it has subject-matter jurisdiction in this case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). Subject-matter jurisdiction is “the courts’ statutory or constitutional power to adjudicate the case.” Id. “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is [the] power to declare the law,

and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Id. at 94 (quoting Ex parte McCardle, 74 U.S. 506, 514 (1869)); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Given that “[t]ribal sovereign immunity is a quasi-jurisdictional issue,” the court cannot proceed without first

determining whether it has jurisdiction in this case. See Pistor v. Garcia, 791 F.3d 1104, 1115 (9th Cir. 2015) (“Tribal sovereign immunity is a quasi-jurisdictional issue that, if invoked at the Rule 12(b)(1) stage, must be addressed and decided.”). Federal courts typically lack subject-matter jurisdiction over Indian tribes absent congressional authorization or a waiver from the tribe. See Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 58 (1978). “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. . . . ‘[W]ithout congressional authorization,’ the ‘Indian Nations are exempt from suit.’” Id. (quoting United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512 (1940)). “Thus, [the Supreme Court] [has] time and again treated the ‘doctrine of tribal immunity [as] settled law’ and dismissed any suit against a tribe absent congressional authorization

(or a waiver).” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 789 (2014) (citing Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 756 (1998)). A tribe’s sovereign immunity extends to a tribal enterprise only if that enterprise “functions as an arm of the tribe.” Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006) (“This immunity extends to business activities of the tribe, not merely to governmental activities.”). The Ninth Circuit considers the following five factors when

“determining whether an entity is entitled to sovereign immunity as an ‘arm of the tribe’”: (1) the method of creation of the economic entities; (2) their purpose; (3) their structure, ownership, and management, including the amount of control the tribe has over the entities; (4) the tribe’s intent with respect to the sharing of its sovereign immunity; and (5) the financial relationship between the tribe and the entities.

White v. Univ. of Cal., 765 F.3d 1010, 1025 (9th Cir. 2014) (quoting Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1187 (10th Cir. 2010)). A tribe can waive its sovereign immunity, but the waiver must be “unequivocally expressed.” Santa Clara Pueblo, 436 U.S. at 58-59 (quoting United States v. Testan, 424 U.S. 392, 399 (1976)) (“A waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’”); White, 765 F.3d at 1026 (quoting Pit River Home & Agric. Coop. Ass’n v. United States, 30 F.3d 1088, 1100 (9th Cir. 1994)) (“A voluntary waiver by a tribe must be ‘unequivocally expressed.’”); see also Bay Mills, 572 U.S. at 782-83 (quoting C & L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418 (2001)) (“[U]nless Congress has ‘unequivocally’ authorized Michigan’s suit [against the Bay Mills Indian Community for opening a casino], it must be dismissed.”).

Without an unequivocal waiver of sovereign immunity from a tribe or an authorization from Congress, federal courts lack the requisite subject-matter jurisdiction to rule on matters involving tribes. See, e.g., Santa Clara Pueblo, 436 U.S. at 58-59. 2. Application a. Whether the Casino Is an “Arm of the Tribe” According to the Tribe’s constitution, the Tribe is “immune from suit except to the

extent that the Tribal Council expressly and unambiguously waives its sovereign immunity.” (Snoqualmie Const. art. I, § 3.)3 To determine whether the Tribe’s sovereign immunity extends to the Casino, the court must first consider the factors put forth in White and conduct an “arm of the tribe” analysis. 765 F.3d at 1025. i. Factor One: Method of Creation

The Casino is wholly owned and operated by the Tribe and is organized and operated pursuant to the Tribe’s laws. (Snoqualmie OSC Resp. at 5; see generally SEA Act.) The SEA Act places the power over affairs of the Casino in the hands of the Snoqualmie Entertainment Authority, whose members are the elected members of the Snoqualmie Tribal Council. (Acts at 5, 8 (SEA Act §§ 5.0, 8.0).) The SEA Act also

makes clear that the Tribe “resolved to develop [the Casino],” which would be “located on the initial reservation of the Tribe[] and operated by the Tribe.” (Id. at 2 (SEA Act

3 This section can be found on ECF page two of this exhibit. § 3.0).) Snoqualmie was formed by the Tribe pursuant to the SEA Act, a resolution codifying the Tribe’s authority over the Casino. Thus, the first White factor favors the

Casino functioning as an “arm of the Tribe.” See White, 765 F.3d at 1018, 1025 (finding that a tribal repatriation committee “formed . . . by tribal resolutions from each of its twelve . . . member tribes” functioned as an “arm of the tribe”). ii. Factor Two: Purpose The Tribe created the Casino “to develop an upscale gaming and entertainment facility, with related amenities, on Indian lands of the Tribe.” (Acts at 2 (SEA Act

§ 3.0).) “[T]he Casino’s creation was authorized pursuant to [the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721 (2018),] a federal law intended to promote tribal self-sufficiency.” (Snoqualmie OSC Resp. at 6; see also Acts at 2 (SEA Act § 3.0); Acts at 26 (Gaming Act § 6.01).) Moreover, IGRA states that “net revenues” from tribal gaming operations may only be used to fund tribal operations, promote a

tribe’s general welfare or economic development, or to donate to charity or to help fund local government agencies. 25 U.S.C. § 2710(b)(2)(B). It is clear that the Casino generates revenue for the Tribe to promote tribal prosperity and self-sufficiency. Thus, the second White factor favors the Casino functioning as an “arm of the Tribe.” See White, 765 F.3d at 1025; see also Cook v. AVI Casino Enters., Inc., 548 F.3d 718, 726

(9th Cir. 2008) (finding that a tribal casino functioned as an “arm of the tribe” in part because it provided funds for the tribe’s treasury). //

// iii. Factor Three: Structure, Ownership, and Management The Tribe’s Gaming Act provides that “[t]he Tribe shall have the sole proprietary

interest in and responsibility for the conduct of any [g]aming [o]peration authorized by this Act.” (Acts at 26 (Gaming Act § 5).) This is consistent with IGRA’s requirements that the Tribe “have the sole proprietary interest and responsibility for the conduct of any gaming activity.” 25 U.S.C. § 2710(b)(2)(A). Moreover, one of the SEA Act’s purposes is to “confirm that the Tribe’s ownership, management and supervisory authority over the [g]aming [b]usiness and the [g]aming [a]ssets will continue to be exercised by and

through the Tribal Council on behalf of the Tribe.” (Acts at 2 (SEA Act § 3(b)).) Thus, the third White factor favors the Casino functioning as an “arm of the Tribe.” See White, 765 F.3d at 1025; see also Allen, 464 F.3d at 1047 (finding that a tribal casino functioned as an “arm of the tribe” in part because it was owned and operated by the tribe). iv. Factor Four: Intent with Respect to the Sharing of Sovereign Immunity

The Tribe’s Judiciary Act states that “all [t]ribal agencies, committees, departments, entities or employees of any kind shall be immune from suit for any acts or omissions done during the performance of [t]ribal duties.” (Acts at 63 (Judiciary Act § 10.0).) This broad grant of immunity reflects the Tribe’s intent to share its tribal sovereign immunity with “all tribal . . . entities . . . of any kind,” which includes the

Casino. Indeed, as the Allen court noted, cloaking a tribal casino with tribal sovereign immunity “directly protects the sovereign [t]ribe’s treasury, which is one of the historic purposes of sovereign immunity in general.” See Allen, 464 F.3d at 1047. Thus, the Tribe is clear in its intent that the Casino generally share in its sovereign immunity, and the fourth White factor favors the Casino functioning as an “arm of the Tribe.” See White, 765 F.3d at 1025.

v. Factor Five: Financial Relationship The Casino’s net revenues go solely to the Tribe and must be used for the purposes articulated by IGRA. (Acts at 26 (Gaming Act § 6.01) (“Net Revenues from Tribal Gaming Activities shall be used only for the following purposes: (i) to fund Tribal government operations and programs, (ii) to provide for general welfare of the Tribe and its members, (iii) to promote Tribal economic development, (iv) to donate to charitable

organizations, or (v) to help fund operations of local government agencies.”).) Just as in Cook, where the “capital surplus from the casino” went to the tribe’s treasury, the Casino generates revenue for the tribe that can only be used in specific manners to promote tribal prosperity and self-sufficiency. See Cook, 548 F.3d at 729. Thus, the fifth White factor favors the Casino functioning as an “arm of the Tribe.” See White, 765 F.3d at 1025.

vi. Conclusion on “Arm of the Tribe” Analysis Just as in Cook and Allen, the Casino is owned and operated by the Tribe on tribal land, and its purpose is to promote tribal prosperity by providing revenue for the Tribe. See Cook, 548 F.3d at 729 (“[T]he tribal corporation is wholly owned and managed by the [t]ribe.”); Allen, 464 F.3d at 1047 (“[T]he casino, which was wholly owned and

operated by the [t]ribe, functioned as an arm of the [t]ribe.”). Moreover, the Tribe has intended to extend its sovereign immunity to its enterprises, including the Casino. Thus, each factor in White favors the conclusion that the Casino functions as an “arm of the Tribe,” and the Casino is therefore immune from suit unless the Snoqualmie Tribal Council has expressly waived sovereign immunity in this case.

b. Whether the Casino Has Waived Its Sovereign Immunity To remain consistent with the controlling case law and the Tribe’s constitution, any waiver of Snoqualmie’s sovereign immunity must be clear and unambiguous. See Santa Clara Pueblo, 436 U.S. at 58-59. In this case, the waiver must “unequivocally” allow the Tribe to be sued in federal court. See Bank of Okla., Nat’l Ass’n v. Muscogee (Creek) Nation, 972 F.2d 1166, 1171 (10th Cir. 1992) (citing Santa Clara Pueblo, 336

U.S. at 49, 58) (holding that a waiver of sovereign immunity was ambiguous because the waiver’s terms “mentioned tribal court but not federal district court”). “[T]he critical question is not whether the Tribe waived immunity, but rather, ‘the extent to which that immunity was waived.’” Mo. River Servs., Inc. v. Omaha Tribe, 267 F.3d 848, 852 (8th Cir. 2011) (quoting Namekagon Dev. Co. v. Bois Forte Res. Hous. Auth., 517 F.2d 508,

510 (8th Cir. 1975)). A waiver of sovereign immunity “is altogether voluntary on the part of [a tribe],” meaning “[a tribe] may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted.” Id. (quoting American Indian Agric. Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th Cir. 1985)).

The Tribe’s Tort Claims Act, which was enacted by the Snoqualmie Tribal Council, provides a limited waiver of sovereign immunity. The Act states that “[t]he sovereign immunity of the Tribe is waived only in the following instances,” including “[i]njuries proximately caused by the negligent acts and/or omissions of the Tribe, its agents, employees or officers.” (Acts at 52 (Tort Claims Act § 6.0(d)).) There is little doubt that Ms. Cadet has filed claims alleging “[i]njuries proximately caused by the

negligent acts and/or omissions of the Tribe, its agents, employees or officers.” (See Compl. at 1, 5-6.) Indeed, Snoqualmie essentially concedes as much in its motion to dismiss and response to the court’s order to show cause. (See MTD at 4-5 (“Plaintiff generally alleges a negligent or wrongful act or omission by the Tribe or its officers, agents, or employees. Accordingly, the Tort Claims Act provides her exclusive remedy for an action against the Tribe for her alleged injuries.”); Snoqualmie OSC Resp. at 8.)

However, the question is whether this waiver extends to Ms. Cadet’s federal court action. The Tribe’s limited waiver of tribal sovereign immunity does not unequivocally allow Snoqualmie to be sued in a federal district court. See Bank of Okla., 972 F.2d at 1171. The Tort Claims Act does not mention federal court jurisdiction at all, but it does state that the Act “is not intended to be a general waiver of the Tribe’s sovereign

immunity, and it shall be narrowly and strictly construed.” (Acts at 50 (Tort Claims Act § 3.0).) The Tort Claims Act further states that it “sets forth the exclusive manner in which tort claims involving the Snoqualmie Indian Tribe shall be filed, administered and adjudicated” and that the waiver is “expressly conditioned upon the claimant’s full and complete compliance with all of the procedures set forth in this chapter.” (Id. at 50 (Tort

Claims Act § 3.0).) Moreover, “[a] tort claim for monetary damages against the Tribe shall be forever barred unless . . . [it] is commenced in Tribal Court in accordance with the provisions of this Chapter.” (Id. at 56 (Tort Claims Act § 12.0(e)).) Finally, the Act contains detailed procedural rules that must be followed to file tort claims in the Snoqualmie Tribal Court, indicating that the Tribal Council intended the waiver to apply to suits filed in tribal court and not federal district court. (See id. at 53-54 (Tort Claims

Act § 10.0).) Thus, the waiver of sovereign immunity located within the Tort Claims Act does not unequivocally indicate that the Tribe has waived its immunity from suits filed in federal court; instead, the waiver provides a remedy to those who are harmed while on tribal grounds through the tribal court system. The absence of a clear and unequivocal waiver to be sued in federal court means that the Tribe’s waiver of sovereign immunity

does not extend to Ms. Cadet’s suit. Therefore, the Tribe’s immunity remains intact, and the court lacks subject-matter jurisdiction in this case. See Bank of Okla., 972 F.2d at 1171. Moreover, even if Ms. Cadet were entitled to file suit against Snoqualmie in federal court, she would still have to comply with the procedural requirements set forth in

the Tribe’s Tort Claims Act. (See Acts at 53-55 (Tort Claims Act § 10.0).) The Tort Claims Act states that the waiver is “expressly conditioned upon the claimant’s full and complete compliance with all of the procedures set forth in this chapter.” (Id. at 50 (Tort Claims Act § 3.0).) There is no evidence on the record that Ms. Cadet complied with these procedural requirements. (See generally Dkt.) Ms. Cadet must show, for example,

that she provided “written notice of the claim to the Secretary of the Tribal Council and the Tribe’s In-House Legal Counsel” “no later than one hundred and eighty (180) days after the act or omission occurred giving rise to the injury.” (Acts at 53-54 (Tort Claims Act §§ 10.0(a), 10.0(c)(1)).) Thus, even if Ms. Cadet could bring her case in federal court, the Tribe conditioned its waiver of sovereign immunity upon Ms. Cadet’s strict adherence to several procedural requirements, and Ms. Cadet fails to establish that she

satisfied those requirements. In sum, the Casino functions as an “arm of the Tribe,” and the Tribe has not unequivocally waived its sovereign immunity in this case. Therefore, tribal sovereign immunity compels the court to dismiss this case for lack of subject-matter jurisdiction. For the reasons set for above, the court DISMISSES this case without prejudice

for lack of subject-matter jurisdiction. Dated this 25th day of June, 2020. A United States District Judge