### 1 7 ,3LED . COURT OF'APPEALS.DIVi

- —

-STATE OF WASHINGTON 

## 2017JUN 26 AN 9:3I

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON JORDYNN SCOTT, ) ) Appellant, ) ) v. I ) ) JOHN or JANE DOE,director ofthe ) Departmentof Licensing,a subdivision of ) the State ofWashington,in his/herofficial ) capacity;STATE OF WASHINGTON; ) PETER'STOWING a Washington ) Corporation;and JOHN and/orJANE ) DOE,unidentified Swinomish tribal police ) officers and general authority police ) officers pursuantto chapter 10.92 RCW in their official capacity and individually, ) ) Respondents. ) ) No.75664-8-1 DIVISION ONE UNPUBLISHED OPINION

FILED:June 26,2017 

### APPELWICK, J. —After losing her vehicle to the Swinomish Tribe in civil forfeiture, Scott filed this suit against the Department of Licensing and unnamed Swinomish police officers. The trial court dismissed the case under CR 19 for failure tojoin an indispensable party:theTribe. Weaffirm. FACTS The facts are not disputed. Jordynn Scott is not a tribal member. The Swinomish Indian Tribal Community (Tribe), pursuant to Swinomish Tribal Code §4-10.050,succeeded in a civilforfeiture action against hervehicle in Swinomish tribal court. She did not respond to the tribal court forfeiture proceeding. The

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Department of Licensing (Department) issued a new certificate of title to reflect the change in ownership. Scott filed a complaint in Whatcom County Superior Court against John and/or Jane Doe Swinomish Tribal Police Officers, the Director of the Department of Licensing,the State ofWashington,and Peter's Towing. Against the Department, she sought declaratory and injunctive relief prohibiting

-transfer of title based on tribal forfeiture of nonmembers'property. Against the officers, she soughtdeclaratory and injunctive relief regarding their confiscation of private property. She also sought42U.S.C.§ 1983damages. The Department moved to dismiss under CR 19 for failure to join the Tribe. The trial court granted this motion. Scott appealed directly to the Washington Supreme Court. But,the Supreme Courttransferred the case to this court. DISCUSSION Scott's primary argumentis thatthe trial courterred in dismissing this case under CR 19on sovereign immunitygrounds. She also seeksattorneyfees. Scott argues thatthe trial court erred in dismissing this case under CR 19. CR 19 addresses when the joinder of absent parties is needed for a just adjudication. Auto. United Trades Ore.v. State, 175 Wn.2d 214,221,285 P.3d 52(2012)(AUTO). Where the feasibility ofjoinder is contested,courts engage in
a three step analysis. jçj. Under CR 19(a), the court first determines whether absentpersons are "necessary"for a justadjudication. Id.at 221-22. Next,ifthe

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absentees are necessary,the courtdetermines whether it is'feasible to order the absentee's joinder. Id. at 222. Joinder is not feasible when tribal sovereign immunity applies. Id. Third,ifjoining a necessary party is notfeasible,the court considers whether a party is "indispensable" under CR 19(b) such that their inability to bejoined defeatsthe action. Id.at222,227. We review a trial court's decision under CR 19for an abuse ofdiscretion, and review any legal determinations necessary to that decision de novo. Id. at 222. The party urging dismissal bearsthe burden ofpersuasion. Id. However,if it appears from an initial appraisal of the facts that there is an unjoined indispensable party, the burden rests with the party resisting dismissal. Id. A failure to meetthat burden will result in the joinder ofthe party or dismissal ofthe action. Id. A. Necessary Party CR 19's first element asks whether a party is a necessary party. CR 19(a)(2). This subsection provides that an absent party is "necessary" when it "claims an interest relating to the subject ofthe action and is so situated that the disposition of the action in [its] absence may (A)as a practical matter impair or impede his ability to protect that interest." Id. To decide whether this is met,we first determine whether the absent party claims a legally protected interest in the action, and second,whether the absentee's ability to protect that interest will be impaired or impeded. AUTO, 175Wn.2d at 223.No.75664-8-1/4

Scott does not contest that the Tribe is a necessary party. The Tribe has
a sufficient interest in the action and is a necessary party. B. Feasible to Join The key inquiry in this case is whether joinder of the necessary party is feasible. This question turns on whether the Tribe and its officers may assert sovereign immunity here. In keeping with their sovereign status, it is well settled that Native American tribes enjoy the common law immunity from suit traditionally accorded to sovereign entities. Id. at 226. This protects tribes from suit absent an explicit and unequivocal waiver or abrogation. Wrightv. Colville Tribal Enter. Corp., 159 Wn.2d 108, 112, 147P.3d 1275(2006). Scott argues that because the tribal officers acted outside the scope of their tribal authority, the Tribe voluntarily waived sovereign immunity under RCW 10.92.020(2)(a). That statute states that tribal police officers may act as and exercise the power of other general authority Washington peace officers. Id. But,the Tribe must carry professional liability insurance that covers the officers' actions while working in their capacity as Washington peace officers. Id. And, most importantly for this case, the tribe and insurer must waive any sovereign immunity defense, up to policy limits, in actions that arise from conduct in their capacity ofWashington officers: Each policy of insurance issued under this chapter must include a provision thatthe insurance shall be available to satisfy settlements or judgments arising from the tortious conduct of tribal police

4No.75664-8-1/5 officers when acting in the capacity of a general authority Washington peace officer, and that to the extent of policy coverage neither the sovereign tribal nation nor the insurance carrier will raise a defense of sovereign immunity to preclude an action for damages under state or federal law,the determination offault in a civil action,or the paymentofa settlement orjudgmentarising from the tortious conduct RCW 10.92.020(2)(a)(ii). In other words, the Tribe obtains the authority for its police to act as State officers, in exchange for waiving its sovereign immunity for thatconduct,up to policy limits. See id. Scott argues that the tribal officers' interaction with Scott and seizure of her vehicle exceeded their tribal authority over nonmembers. Therefore, she argues, the only other possible basis for the Tribe's actions must have been its authority to enforce state laws pursuantto chapter 10.92 RCW. And,ifthatis the case, sovereign immunity would be waived under RCW 10.92.020(2)(a)(ii)as to "conductoftribal police officers when acting in the capacity ofa general authority Washington peace officer." Scott correctly argues that tribes generally cannot exercise criminal authority over nonmembers. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195,98 S.Ct. 1011,55 L. Ed.2d 209 (1978). But, in Montana v. United States, 450 U.S. 544, 565-66, 101 S. Ct. 1245, 67 L. Ed. 2d493 (1981), the United States Supreme Court held that tribes retain civil authority to regulate the conduct of nonmembers in two areas. First, they may regulate the conduct of nonmembers who enter into consensual relationships with the Tribe through commercial dealings. Id. Second, they may regulate the conduct of nonmembers on lands within their reservation when that conduct threatens or

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directly affects political integrity,economicsecurity,orthe health orwelfare ofthe tribe. Id. Thissecond exception is at issue here. Drug enforcement laws are actions taken to protectthe health,safety,and welfare of the public. See, e.g., 21 U.S.C.§801(1). Under the federal Controlled Substances Act. 'scheme,forfeitures are civil in nature.2 See United States v. Ursery, 518 U.S. 267,270-71,274,116 S.Ct. 2135, 135 L. Ed. 2d 549 (1996). The same is true under state law. See State v. Catlett, 133Wn.2d 355, 366-67, 945 P.2d 700 (1997). These actions are against the property. Urserv, 518 U.S.at 295-96. The tribal statute under which these vehicles were forfeited, Swinomish Tribal Code §4-10.050, is similar. This dispute involves a forfeiture of property, with notice to the owner, based on a criminal violation of the tribal

1 21 U.S.C.§§801-904. 2 This distinction between civil and criminal actions was recently highlighted in a similar case in federal court. See Wilson v. Doe, No. C15-629 JCC,2016 WL 1221655 (W.D.Wash. Mar. 29, 2016). In that case,the Lummi tribe soughtforfeiture ofWilson's vehicle after discovering marijuana inside while on the Lummi reservation. See id. at *3. Wilson was not Native American. See id. at *2. Wilson challenged the Lummi tribe's authority to forfeit a nonmember's vehicle, and cited Oliphant for support. Id. at *3. The federal court noted that, because forfeiture was a civil matter, Oliphant did not bar the tribe's authority to forfeitthe vehicle ofa nonmember. Id. A similar question was presented in Pearson v. Dir. of the Dep't of Licensing, No. C15-0731 JCC,2016 WL 3386798 (W.D.Wash.June 20,2016). Pearson, who was not part of the Swinomish tribe, was pulled over on the Swinomish reservation by a Swinomish officer. Id. at *3. The Tribe obtained forfeiture after discovering drugs in the vehicle. Id. at *1. Pearson filed suit for damages and declaratory relief against the Department and named Swinomish officers. Id. at *2. The court granted a named Swinomish officer's motion for summary judgment. Id. at *5. It held that, because the suit against the named Swinomish officer questioned the Tribe's jurisdiction over Pearson, sovereign immunity barred the suit. Id.at*4.

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drug code. We conclude it is an in rem civil proceeding concerning the health or welfare ofthe Tribe. Scott cites Miner Electric, Inc. v. Muscogee (Creek)Nation, 464 F. Supp. 2d 1130 (N.D. Okla. 2006), rev'd 505 F.3d 1007 (10th Cir. 2003), as a correct application of Montana's second exception to tribal civil forfeiture authority. Miner was not a tribe member. Id. at 1132. Muscogee tribal police discovered drugs in Miner's vehicle while it was parked atthe Muscogee casino. Id.at 1133. The Muscogee police succeeded in a forfeiture proceeding againstthe vehicle in tribal court. Id. The federal district court held that the forfeiture was invalid, because the Muscogee police had no authority to forfeit property that belongs to nonmembers. Id. at 1137. Scott urges us to adopt the Miner district court's reasoning that the Tribe exceeded its authority, and as a result may not assert sovereign immunity. But, Miner was reversed on appeal. See Miner Elec., Inc. v. Muscooee (Creek)Nation, 505 F.3d 1007, 1012 (10th Cir. 2007). As Scott acknowledges, the appellate court rejected the trial court's reasoning as an overly narrow conception of sovereign immunity. Id. The appellate court held that the applicable authority "does not stand for the proposition. . .that an Indian tribe cannot invoke its sovereign immunity from suit in an action that challenges the limits of the tribe's authority over non-Indians." Id. ,Because the appellate court held that sovereign immunity barred suit against the Muscogee, it explicitly declined to address whether the tribe had authority to seize nonmembers'

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property. Id. Therefore, we decline to adopt the reasoning from the federal district courtwhen thatdecision was reversed on sovereignty grounds. Scott also cites Bressi v. Ford, 575 F.3d 891 (9th Cir. 2009) for her argument that the Miner trial court's analysis regarding tribal authority was sound, and the officers here were not acting under tribal law. In Bressi, tribal officers stopped a nonmember at a roadblock on an Arizona state highway that
ran through the reservation. Id. at 893-94. Bressi refused to present his identification, because he alleged the stop was unconstitutional. Id. at 894. So, the officers handcuffed him and cited him for failure to provide a license and failure to follow an officer's order. Id. The tribal officers had authority to enforce state law,so they eventually cited him fortwo state law violations arising from his failure to cooperate. Id. Bressi brought a lawsuit arguing that the officers acted outside their tribal law authority and did not meet constitutional standards for roadblocks. See id. at 895. The court held that the roadblock and initial stop
were lawful,butthe officers acted outside the scope oftheirtribal authority. Id.at 897. Rather, it held that they instead acted under state authority, because they quickly realized Bressi was not impaired, but nevertheless treated his refusal to cooperate as a state law violation. Id. But, Bressi is critically different because it involved tribal officers'writing a criminal citation for a violation of state law. Id. at 894. They were obviously acting in a state officer capacity, because they cited Bressi for violation of state

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law. See id. But,Scott's forfeiture order was based purely on tribal law. And,it
was an in rem forfeiture proceeding,nota purely criminal matter like Bressi. Scott has not established that state laws were implicated in the forfeiture. She has not established that the officers were acting in the capacity of Washington state peace officers, rather than tribal officers. Absentthat, she has notestablished thatstatutory immunitywaiverapplied. But,Scott argues that even if the RCW 10.92.020 waiver does not apply, the officers may not assertsovereign immunity because they acted outside ofthe scope oftheir authority. Whether tribal sovereign immunity applies is a question offederal law. AUTO, 175 Wn.2d at 226. Such sovereign immunity extends to tribal officials acting within the scope of their authority. Wright, 159 Wn.2d at 116. Scott also cites Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir. 2013) and Pistgr v. Garcia, 791 F.3d 1104, 1113-14 (9th Cir. 2015) for her argument that, irrespective of whether they were acting as Washington peace officers, the officers acted outside of their authority and sovereign immunity is therefore notavailable. In Maxwell, the courtfound thattribal paramedics named in the suit could not assert sovereign immunity in a suit arising out of an ' emergency response,because the damagessoughtwere notfrom the tribe itself, but from the individuals. 697 F.3d at 1081, 1089. In Pistor, the court cited Maxwell, and found that sovereign immunity did not apply in a suit against tribal

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gaming officers in their individual capacities who seized the plaintiffs after they
won large amounts ofmoney. 791 F.3d at 1108-09,1113-14. But, both Maxwell and Pistor involved actions in response to isolated scenarios.3 Maxwell, 697 F.3d at 1081; Pistor, 791 at 1108-09. To that end, both courts explicitly noted that sovereign immunity did not apply because the remedy sought would not restrain the Tribe from acting, but rather merely compensate the plaintiffs for their injury. Maxwell, 697 F.3d at 1088; Pistor, 791 at 1114. At issue in Maxwell wasthe negligentconduct ofindividuals responding to a specific emergency. 708 F.3d at 1080-81. At issue in Pistor was isolated conductofindividuals,constituting acts of intimidation and punishmentofa group of highly successful gamblers. 791 F.3d 1108-09. Neither requested reliefsuch thata Tribe's policies or programmatic practices should be enjoined. But, here the crux of Scott's argument is that the tribe's ongoing practice of seizing and forfeiting nonmembers' vehicles should be enjoined. And, a plaintiff cannot circumvent tribal immunity by simply naming an officer of the Tribe as a defendant, rather than the sovereign entity. Cook v. AVI Casino Enters., Inc., 548 F.3d 718,727(9th Cir. 2008). This is for obvious reasons. If

3 Scott also cites Tenneco Oil Co. v. Sac and Fox Tribe of Indians of Oklahoma, 725 F.2d 572 (10th Cir. 1984)for further support of this argument. There,the court held that a gas company seeking to invalidate tribal ordinances could maintain a suit against named officials. Id. at 574-75. It reasoned that, when a plaintiff alleges that an officer acted outside the scope of his authority, sovereign immunity is not implicated. Id. at 574. But, like Maxwell and Pistor, Tenneco involved named officers. Id. And,the court reasoned thatthe presence offederal question jurisdiction was key to its holding that the suit may proceed. jçj. at 575. Neither ofthese concerns are present in Scott's case.

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the opposite were true,a plaintiff challenging a sovereign's authority could simply
name an officer of the sovereign to completely avoid the principles underlying sovereign immunity. See id. Scott challenges the Tribe's outright authority to forfeit vehicles of nonmembers. The lawSuitdoes not concern an isolated act by individuals, but rather the Tribe's ongoing authority to engage in a specific practice. Maxwell and Pistor do notapply.4 Scott contends that upholding the trial court will render ineffective RCW 10.92.020(2)(a)(ii)'s sovereign immunity waiver. Wedisagree. The waiver would retain vitality when tribal officers are enforcing Washington state law, acting in the capacity ofa State peace officer. We hold that Scott has not demonstrated that the officers were acting as State peace officers. Therefore, the waiver of sovereign immunity in ROW

4 At oral argument, Scott stressed that another case, Lewis v. Clarke, U.S. , 137 S. Ct. 1285, 197 L. Ed. 2d 631 (2017),establishes that the officers here may be sued individually. In Lewis, the court held that a tribal employee could notassertsovereign immunity in thefollowing circumstance: This is a negligence action arising from a tort committed by Clarke on an interstate highway within the State of Connecticut. The suit is brought against a tribal employee operating a vehicle within the scope of his employment but on state lands, and the judgmentwill not operate against the Tribe. This is not a suit against Clarke in his official capacity. It is simply a suit against Clarke to recover for his personal actions,which "will not require action by the sovereign ordisturb the sovereign's property." Id. at 1292 (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687, 69 S. Ct. 1457, 93.L. Ed. 1628 (1949)). Lewis is distinguishable, because Scott's primary argument goes to tribal authority for an ongoing practice,notthatthe tribe should be liable for isolated negligence.

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10.92.020(2)(a)(ii) does not apply.5 No other exception to sovereign immunity applies, and the Tribe and its officers are therefore immune from this suit. Joinder is notfeasible. C. Indispensable party Scott argues that, even if the court determines that joinder is notfeasible
asto the tribe and its officers due to sovereign immunity,the suit should proceed againstthe Department. This inquiry is heavily influenced by the facts and circumstances of the individual case. AUTO, 175 Wn.2d at 229. The court must determine whether, "in equity and good conscience," the action should proceed among the parties before it, or bedismissed. CR 19(b). Thefactors to be considered are:

Id. (1) to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; (2)the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures,the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; (4) whether the plaintiff will have an adequate remedy ifthe action is dismissed for nonjoinder.

These factors weigh in favor ofdismissal. First, the prejudice to the Tribe would be substantial. In effect,Scott seeks a pronouncementthattribes may not

5 Scott also argues that the case should nevertheless proceed, because the Tribe's RCW 10.92.020(2)(a) insurers are not protected by sovereign immunity. She cites Smith Plumbing v. Aetna Casualty, 149Ariz. 524,527,720 P.2d 499(1986),where the Arizona Supreme Court held that an insurer was not entitled to assert a Tribe's sovereign immunity. But, even if this were a correct statement of Washington law, she has not established that the tribe is not a necessary party in a proceeding to establish that its officers acted under Washington law and nottribal law.

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pursue asset forfeiture against nonmembers. Any such decision would have a substantial effect on tribal policy, and the health and welfare of the tribe. Scott urges the courtto allow the suitto goforward againstthe Departmentalone,and enjoin the department from changing vehicle titles based on tribal forfeiture.6 But,such a decision would still prejudice the Tribe. Although such an injunction would kit only the Department's conduct, it would nevertheless prevent the Tribe from obtaining or selling vehicles via forfeiture. As a result, this factor weighs in favor ofdismissal. Second,there is little opportunity tofashion reliefthatwould limit prejudice to the Tribe. The core ofScott's claim is thatthe Tribe's assetforfeiture practices against nonmembers must be enjoined. The relief that Scott seeks would necessarily prejudice the Tribe. Third, a judgment against the Department alone, at best, could enjoin it from issuing titles based on tribal court judgments against nonmembers. But,

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### Relatedly,Scottalso claimsthatthe Departmentviolated its own protocol in changing the title based on a foreign (here, tribal) judgment, without first registering that judgment in superior court. She notes that, in a letter regarding another non-Tribe member's vehicle,the Departmentstated that its protocol is to register foreign judgments in superior court before seeking a change of title pursuant to that judgment. But, she claims the Department is not following this procedure. Even if the sovereign immunity discussion above does not also bar this argument, Scottfails to identify the available reliefthat would-be adequate. She does not identify what her cause of action against the Department for any monetary damages would be, if one even exists. Scottfails to identify the relief that this court could provide in response to this argument. It is not grounds for reversal.

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this would not guarantee that the forfeitures themselves stopped. A judgment in the absence ofthe Tribe would notbe adequate. Finally, Scott was not without an alternate remedy. She could have contested the original forfeiture proceeding in tribal court. She did not. That proceeding was the most logical place to challenge the Tribe's authority to seek forfeiture of her property. Instead, she now pursues a tort claim, after the fact, alleging that the Tribe had no jurisdiction to take her property in the first place,
even though she did not contest the Tribe's action when she had the original opportunity to do so. This is in stark contrast to a case like AUTO, which Scott cites in arguing that dismissal would be inequitable. There, a trade group sought to invalidate state compactswith tribes regarding fuel taxes. 172Wn.2d at 220-21. The court found that dismissal under CR 19 was not warranted, in part because there was
no alternative remedy available that could have addressed the validity of the compacts. Id. at 232-33. Challenging the validity ofthe compacts in state court
was literally the only possible way for the trade group to obtain relief. Id. at 232. The posture of Scott's claim is different. She did not challenge the forfeiture when she had the initial opportunity in tribal court. Because the validity of the Tribe's practices are central to this case, and because an alternative remedy was available to Scott,we hold thatthe Tribe was
an indispensable party,and the action may not proceed without it. The trial court properlydismissed this case on CR 19grounds.

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Scott is notentitled to relief. Her requestforattorneyfees isdenied. Weaffirm.

WE CONCUR:

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