17,3LED .

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 of the )

Department of Licensing, a subdivision of )

the State of Washington, in his/her official )

capacity; STATE OF WASHINGTON; )

PETER'S TOWING a Washington )

Corporation; and JOHN and/or JANE )

DOE, unidentified Swinomish tribal police )

officers and general authority police )

officers pursuant to 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UNPUBLISHED OPINION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 to join an indispensable party: the Tribe. We affirm.

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 civil forfeiture action against her vehicle in Swinomish

tribal court. She did not respond to the tribal court forfeiture proceeding. The
No. 75664-8-1/2

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 of Washington, 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 sought declaratory and injunctive relief regarding their confiscation of private

property. She also sought 42 U.S.C. § 1983 damages.

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 Court transferred the case to this

court.

DISCUSSION

Scott's primary argument is that the trial court erred in dismissing this case

under CR 19 on sovereign immunity grounds. She also seeks attorney fees.

Scott argues that the 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 of joinder is contested, courts engage in

a three step analysis. jçj. Under CR 19(a), the court first determines whether

absent persons are "necessary" for a just adjudication. Id. at 221-22. Next, if the

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No. 75664-8-1/3

absentees are necessary, the court determines whether it is'feasible to order the

absentee's joinder. Id. at 222. Joinder is not feasible when tribal sovereign

immunity applies. Id. Third, if joining a necessary party is not feasible, the court

considers whether a party is "indispensable" under CR 19(b) such that their

inability to be joined defeats the action. Id. at 222, 227.

We review a trial court's decision under CR 19 for an abuse of discretion,

and review any legal determinations necessary to that decision de novo. Id. at

222. The party urging dismissal bears the burden of persuasion. 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 meet that burden will result in the joinder of the party or dismissal of the

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 of the 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,175 Wn.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. Wright v. Colville Tribal Enter. Corp., 159

Wn.2d 108, 112, 147 P.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 of Washington officers:

Each policy of insurance issued under this chapter must include a

provision that the insurance shall be available to satisfy settlements

or judgments arising from the tortious conduct of tribal police

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No. 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 of fault in a

civil action, or the payment of a settlement or judgment arising 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

that conduct, 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 pursuant to chapter 10.92 RCW. And, if that is the

case, sovereign immunity would be waived under RCW 10.92.020(2)(a)(ii) as to

"conduct of tribal police officers when acting in the capacity of a 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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No. 75664-8-1/6

directly affects political integrity, economic security, or the health or welfare of the

tribe. Id. This second exception is at issue here.

Drug enforcement laws are actions taken to protect the 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, 133 Wn.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 sought forfeiture of Wilson'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

forfeit the vehicle of a 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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No. 75664-8-1/7

drug code. We conclude it is an in rem civil proceeding concerning the health or

welfare of the 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 at the Muscogee casino. Id. at 1133.

The Muscogee police succeeded in a forfeiture proceeding against the 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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No. 75664-8-1/8

property. Id. Therefore, we decline to adopt the reasoning from the federal

district court when that decision 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 for two 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, but the officers acted outside the scope of their tribal 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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No. 75664-8-1/9

law. See id. But, Scott's forfeiture order was based purely on tribal law. And, it

was an in rem forfeiture proceeding, not a 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. Absent that, she has

not established that statutory immunity waiver applied.

But, Scott argues that even if the RCW 10.92.020 waiver does not apply,

the officers may not assert sovereign immunity because they acted outside of the

scope of their authority. Whether tribal sovereign immunity applies is a question

of federal 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 not available. In Maxwell,the court found that tribal paramedics named

in the suit could not assert sovereign immunity in a suit arising out of an

' emergency response, because the damages sought were not from 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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No. 75664-8-1/10

gaming officers in their individual capacities who seized the plaintiffs after they

won large amounts of money. 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 was the negligent conduct of individuals responding

to a specific emergency. 708 F.3d at 1080-81. At issue in Pistor was isolated

conduct of individuals, constituting acts of intimidation and punishment of a group

of highly successful gamblers. 791 F.3d 1108-09. Neither requested relief such

that a 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 that the presence

of federal question jurisdiction was key to its holding that the suit may proceed.

jçj.at 575. Neither of these concerns are present in Scott's case.

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No. 75664-8-1/11

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 lawSuit does not concern an isolated act by

individuals, but rather the Tribe's ongoing authority to engage in a specific

practice. Maxwell and Pistor do not apply.4

Scott contends that upholding the trial court will render ineffective RCW

10.92.020(2)(a)(ii)'s sovereign immunity waiver. We disagree. The waiver would

retain vitality when tribal officers are enforcing Washington state law, acting in

the capacity of a 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 not assert sovereign immunity in the following 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 judgment will

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

or disturb 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, not that the tribe should be liable for isolated negligence.

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No. 75664-8-1/12

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 not feasible.

C. Indispensable party

Scott argues that, even if the court determines that joinder is not feasible

as to the tribe and its officers due to sovereign immunity, the suit should proceed

against the 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 be dismissed. CR 19(b). The factors 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 if the action is dismissed for nonjoinder.

These factors weigh in favor of dismissal. First, the prejudice to the Tribe

would be substantial. In effect, Scott seeks a pronouncement that tribes 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, 149 Ariz. 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 not tribal law.

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No. 75664-8-1/13

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 court to allow the suit to go forward against the Department alone, 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 of dismissal.

Second, there is little opportunity to fashion relief that would limit prejudice

to the Tribe. The core of Scott's claim is that the Tribe's asset forfeiture 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,

6 Relatedly, Scott also claims that the Department violated 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 Department stated 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, Scott fails to identify the available relief that 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. Scott fails to identify the relief

that this court could provide in response to this argument. It is not grounds for

reversal.

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No. 75664-8-1/14

this would not guarantee that the forfeitures themselves stopped. A judgment in

the absence of the Tribe would not be 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 compacts with tribes regarding fuel taxes. 172 Wn.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 of the 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 that the Tribe was

an indispensable party, and the action may not proceed without it. The trial court

properly dismissed this case on CR 19 grounds.

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No. 75664-8-1/15

Scott is not entitled to relief. Her request for attorney fees is denied.

We affirm.

WE CONCUR:

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