North Sea Products, Ltd. v. Clipper Seafoods Co. , 92 Wash. 2d 236 ( 1979 )

This case presents the question of whether the immunity from suit traditionally possessed by federally recognized Indian tribes includes immunity from garnishment actions. Also included is the issue of whether tribal immunity against garnishment is waived when a tribe conducts a commercial enterprise outside the boundaries of the reservation.

We hold that tribal immunity includes immunity from garnishment actions, and that this immunity has not been waived by the tribe's commercial activities. In these respects, we reverse the trial court, which held to the contrary.

The procedural history of this case can be briefly summarized as follows:

On February 4, 1977, a writ of garnishment was issued by the Superior Court for Whatcom County paming the "Lummi Tribal Council and/or Lummi Processing Plant" as garnishee. The writ ordered the garnishee to withhold the wages of one of its employees. The true name of the "Lummi Tribal Council" is the Lummi Indian Business Council (LIBC), which is the governing body of the Lummi Indian Tribe. The "Lummi Processing Plant" is actually the Lummi Indian Seafood Company (LISCO), which in turn is an operating division of Lummi Indian Tribal Enterprises (LITE). LITE is an enterprise chartered by LIBC in accordance with article VI of the Lummi tribal constitution. The LITE charter contains the following relevant provision:

The Board shall have authority to enter into contracts and to do all other things necessary to carry out its responsibilities hereunder; provided, however, that the Board shall not enter into any litigation without specific authorization of the Lummi Indian Business Council, nor may the Board waive immunity from suit without specific authorization.

(Italics ours.)

The Lummi Indian tribe is a federally recognized Indian tribe operating under a constitution and bylaws approved by the Secretary of the Interior on April 10, 1970.

The petitioners moved the court for an order quashing the garnishment writ and for attorney fees for wrongful garnishment. The petitioners asserted that the Lummi Indian Tribe and subordinate divisions thereof are immune from the jurisdiction of the court and that consequently the court lacked both personal and subject matter jurisdiction over an action involving the tribe. The trial court denied the motion to quash. Petitioners' motions for reconsideration and attorney fees were also denied. An appeal was filed with Division One of the Court of Appeals, and this court granted discretionary review.

It is undisputed by the parties that Indian tribes possess a degree of immunity from suit. In Puyallup Tribe, Inc. v. Department of Game (Puyallup III), 433 U.S. 165, 172-73, 53 L. Ed. 2d 667, 97 S. Ct. 2616 (1977), the United States Supreme Court vacated the portions of a Washington superior court judgment involving relief against the Puyallup tribe itself, holding that

[ajbsent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized Indian tribe. This Court, United States v. United States Fidelity & Guaranty Co., [309 U.S. 506, 84 L. Ed. 894, 60 S. Ct. 653 (1940)]; the Washington Supreme Court, see, e. g., State ex rel. Adams v. Superior Court, 57 Wash. 2d 181, 182-185, 356 P. 2d 985, 987-988 (1960); and the commentators, see, e. g., U. S. Dept. of Interior, Federal Indian Law 491-494 (1958), all concur.

Furthermore, the United States Supreme Court recently ruled that:

Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Turner v. United States, 248 U. S. 354, 358 (1919); United States v. United States Fidelity and Guaranty Co., 309 U. S. 506, 512-13 (1940); Puyallup Tribe v. Washington Dept. of Game, 433 U. S. 165, 172-173 (1977). This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress. But "without congressional authorization," the "Indian Nations are exempt from suit.” United States v. United States Fidelity and Guaranty Co., supra, at 512.

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 56 L. Ed. 2d 106, 98 S. Ct. 1670 (1978).

Respondent concedes that Indian tribes have traditionally enjoyed immunity, but argues that this immunity extends only to cases of direct suit against a tribe. Respondent argues that the present garnishment action constitutes an indirect suit against the tribe and that tribal immunity should not be extended to cases in which the tribe is sued only indirectly.

As a general rule, a garnishment proceeding is not an original proceeding. Rather, it is ancillary to and dependent upon a principal action between a creditor and debtor. State ex rel. Pioneer Mining & Ditch Co. v. Superior Court, 108 Wash. 183, 183 P. 74 (1919); 6 Am. Jur. 2d Attachment and Garnishment § 11 (1963). Nonetheless, despite the ancillary nature of the proceeding, we are satisfied that, when the state statutory proceeding of garnishment is properly invoked and considered against the backdrop of the doctrine of Indian tribal immunity, it embraces sufficient characteristics of a direct proceeding against a garnishee Indian tribe to bring it within the ambit of the pertinent immunity.

Garnishment actions in this state are controlled by the provisions of RCW 7.33. RCW 7.33.060 renders the state and its political subdivisions amenable to the writ. RCW 7.33.110 prescribes the form of the writ, the time for answer (20 days), and warns of the penalty for default. RCW 7.33.140 describes the effect of the writ following service upon the garnishee, including a proscription against disposing of any of the assets of the principal defendant then in possession of the garnishee without court order. RCW 7.33.190, in part, provides:

Should the garnishee fail to make answer to the writ within the time prescribed therein, it shall be lawful for the court, on or after the time to answer such writ has expired, to render judgment by default against such garnishee for the full amount claimed by plaintiff against the defendant, or in case plaintiff has a judgment against defendant, for the full amount of such judgment with all accruing interest and costs:

(Italics ours.)

RCW 7.33.210 provides for execution of a judgment against the garnishee, whether by default or otherwise, in the same manner as execution upon any judgment is ordinarily issued. And, RCW 7.33.220 and .230 provide for appropriate delivery of goods and effects of the principal defendant adjudged to be in possession of the garnishee and permits entry of a contempt order against the garnishee for failure to deliver such goods and effects.

It thus appears clear, at least from the latter cited provisions of RCW 7.33, that, upon the occurrence of one or more events, the garnishor plaintiff may proceed directly against the garnishee, i.e., by entry of judgment by default, normal execution of judgment, or contempt. Given these potential forms of relief against a garnishee, we are satisfied respondent's attempted "direct-indirect suit" argument, in the context of the instant case, lacks merit.

We turn then to the issue of the applicability of Indian tribal sovereign immunity to garnishment actions directed to a recognized tribe or its agencies.

Although the question of whether Indian tribes are immune from garnishment actions is a novel one, the approach we now take is consistent with the body of case law involving the garnishment of governmental entities as sovereigns. As noted earlier, Indian tribes have been recognized as possessing the common-law immunity from suit which has been traditionally enjoyed by sovereign powers. Santa Clara Pueblo v. Martinez, supra. The general rule regarding the garnishment of government sovereignties is that the United States, the states, and their political subdivisions cannot be summoned as garnishees in any action without statutory authorization, consent, or waiver. 6 Am. Jur. 2d Attachment and Garnishment § 78 (1963). See also Buchanan v. Alexander, 45 U.S. (4 How.) 20, 11 L. Ed. 857 (1846); State ex rel. Summerfield v. Tyler, 14 Wash. 495, 45 P. 31 (1896); Flood v. Libby, 38 Wash. 366, 80 P. 533 (1905). Our present approach recognizes in Indian tribes the same immunity from garnishment which other sovereign powers possess. Respondent has cited no congressional enactment relinquishing Indian tribal immunity from garnishment.

Respondent asserts, however, that even if Indian tribes are immune from garnishment, this immunity was waived by the Lummi Tribe through its conduct. Respondent contends that by engaging in a course of commercial conduct off the reservation and by hiring a judgment debtor, the tribe has impliedly waived its immunity from garnishment actions. Respondent makes no claim that immunity was expressly waived by the tribe.

In Puyallup III, supra, the United States Supreme Court held that a state may not exercise jurisdiction over a tribe absent consent or waiver, and the court considered whether the tribe, by its own actions, had waived its immunity. However, in Santa Clara Pueblo v. Martinez, supra at 58, the United States Supreme Court declared that '"without congressional authorization,' the 'Indian Nations are exempt from suit'", quoting, United States v. United States Fid. & Guar. Co., 309 U.S. 506, 84 L. Ed. 894, 60 S. Ct. 653 (1940). The Court further stated that

[i]t is settled that a waiver of sovereign immunity "'cannot be implied but must be unequivocally expressed.'" United States v. Testan, 424 U. S. 392, 399 (1976), quoting, United States v. King, 395 U. S. 1, 4 (1969).

Santa Clara Pueblo v. Martinez, supra at 58-59. In its discussion of whether a waiver of sovereign immunity existed, the court then discussed only whether the tribe's sovereign immunity had been waived by Congress.

The ruling in Santa Clara Pueblo v. Martinez, supra, leaves some question as to whether only Congress may waive a tribe's immunity and whether tribes are without power to waive their own immunity. However, we need not make that determination here because it is clear that neither the Lummi Tribe nor Congress has expressly and unequivocally waived the tribe's immunity. Respondent's theory of implied waiver must therefore be rejected.

Petitioners have requested attorney fees in this action. Petitioners have not in their brief supported this request by appropriate assignment of error, citation of authority, or argument. We therefore do not reach the issue. DeHeer v. Seattle-Post Intelligencer, 60 Wn.2d 122, 372 P.2d 193 (1962); Northern State Constr. Co. v. Robbins, 76 Wn.2d 357, 457 P.2d 187 (1969); Ortblad v. State, 85 Wn.2d 109, 530 P.2d 635 (1975); State v. Wood, 89 Wn.2d 97, 569 P.2d 1148 (1977).

The cause is remanded with instructions to quash the writ of garnishment and dismiss the action.

The foregoing opinion was prepared by Justice Orris L.. Hamilton prior to his retirement and is adopted by the undersigned Justices as their opinion.

Utter, C.J., and Stafford, Wright, Brachtenbach, Horowitz, Dolliver, and Hicks, JJ., concur.