Storming the Sovereign Gates

In an arcane corner of law, tribes stand sovereign, and a band of Seattle lawyers are storming the gates.

From the start, the specially called meeting of the Sauk-Suiattle Tribal Council was rife with suspicion and conflict. Gathering in a small meeting space that doubled as a courtroom, located in one of the few public buildings on the tiny reservation in the shadow of the north Cascades’ Whitehorse Mountain, council members and observers even sparred over what they were there to talk about. Why hadn’t resolutions been circulated in advance? some wanted to know.

The meeting took up the management, or possible mismanagement, of the tribal smoke shop and gas station, and dipped into a discussion of why some Sauk-Suiattle members had access to tribal cars to do their personal business.

And then the real agenda of the June 10, 2011, meeting became apparent. “I make a motion for the immediate termination of Ricke Wayne Armstrong as Sauk-Suiattle Tribe tribal attorney,” said council member Michael Hoffman.

“On what grounds?” asked a former council member, John Pugh, the son of then–Tribal Chair Janice Mabee.

“At will,” was Hoffman’s succinct response, according to a transcript of the meeting.

“What’s the grounds, though?” Pugh persisted. “What’s the reason?”

“At will,” Hoffman repeated.

Hoffman quickly called for a vote, and the motion passed, with four members voting yes, two opposed, and Mabee, the chair, abstaining according to the rules.

If some of those present were disturbed at the sudden jettison of the tribe’s legal adviser, they became even more agitated when Hoffman brought forward his next resolution. “The immediate termination of Cabrini Artero,” Hoffman said, referring to the tribe’s mental-health counselor.

Mabee laughed, presumably at the audacity of it all. “Excuse me,” said her son.

“At will,” Hoffman repeated. Despite several objections that the resolution was illegal because it wasn’t on the agenda, the motion carried with the same people voting for and against.

Hoffman, known on the reservation as a rather erratic personality, didn’t stop there. One after another, he trotted out new names, all on his list of people to be axed. As his flustered opponents sputtered their dismay, Hoffman offered what he apparently thought was reassurance: “None of these people are Sauk-Suiattle, other Natives, spouses of Natives, you know, OK?”

Pugh, a veteran of 25 years in the Army, serving as an equal-opportunity adviser for part of that time, was not reassured. “So you are discriminating against non-Natives?” he asked.

Hoffman denied it. But neither he nor his supporters would offer any reasons for the firings.

“Do you not have a shred of moral decency?” Pugh exploded after a handful of names had been put forward. “Have you lost any honor that you have? These are real people’s lives. I am ashamed to call you tribal members.”

By the end of the meeting, the council had summarily dismissed 11 staffers.

Afterward, Pugh and some of the exasperated council members walked outside to the parking lot, where they ran into Judy Pendergrass, still shaking, as she remembers it now, after hearing that she had just lost her job as the tribe’s human-resources manager. “You guys need to get an attorney,” Pugh told Pendergrass.

Eventually, she and seven other fired employees did. Their lawsuit, charging discrimination and wrongful termination, is now pending in Sauk-Suiattle’s tribal court, the forum where the law dictates such a claim must first be heard. But the suit faces a daunting obstacle. According to a legal principle known as “sovereign immunity,” Native American tribes cannot be sued—at least not unless a tribe specifically grants a waiver from such immunity. And most tribes grant no such thing, except for limited waivers pertaining to specific business contracts.

In contrast, the federal government, states, counties, and cities have all granted broad waivers—so much so that lawsuits against these jurisdictions happen virtually every day, for discrimination, sexual harassment, negligence, all sorts of things. “I can give you a thousand examples,” says Jeffrey Needle, one of two Seattle lawyers representing eight of the dismissed Sauk-Suiattle employees.

Needle further charges that sovereign immunity “is an anachronism. It originates with the idea that there’s a king, and the king can do no wrong.” A left-leaning lawyer who specializes in civil-rights cases, Needle says his natural sympathies lie with Native Americans, who have experienced “invidious” discrimination. Yet he says his eyes have been opened to the way tribes can use sovereign immunity to avoid even discussing alleged wrongs they committed. Their stance, he says: “Even if we did this, it doesn’t really matter.”

Indeed, that’s the Sauk-Suiattle tribe’s position in court—making this case typical of the countless, usually futile lawsuits brought against tribes over everything from broken bones at tribal casinos to deaths at the hands of tribal police.

Nevertheless, an early ruling in the Sauk-Suiattle case suggests tribal immunity isn’t completely ironclad. That undoubtedly comes as welcome news to yet two more ex-staffers, fired in the protracted battles that followed the 2011 meeting, who are now likely to bring additional suits.

Tribes throughout the state are carefully watching the legal maneuvering, according to prominent Tulalip tribal member and state Rep. John McCoy, trying to “figure out what it means for them.”

Even so, the court battle only hints at the drama that has been playing out among the Sauk-Suiattle. Alleged corruption, veiled and unveiled racism against tribal members and nonmembers alike, and family rivalries of Shakespearean proportions attest to the deep dysfunction many say is rife within the tiny tribe.

You get to the Sauk-Suiattle reservation by driving northeast from Darrington, a hamlet on State Route 530 so small that residents can’t think of anyplace to take a visitor for lunch besides the local IGA. It’s a metropolis compared to the reservation, however, which is accessed by a looping road off the highway called Chief Brown Lane. Actually, that road—only about a quarter-mile long—essentially is the reservation, aside from some woods and pasture land in the tribe’s domain. Chief Brown Lane is dotted with modest homes, about 20 in all; a longhouse; and a couple of administration buildings.

In the mid-19th century, the tribe clustered in a nearby village alongside the confluence of the Sauk and Suiattle rivers that boasted eight cedar longhouses and 4,000 members. Like that of many tribes of the region, its life revolved around the water. Its members fished and plied the rivers in hand-built canoes. And also as with so many tribes, white settlers confiscated their land. The Sah-ku-mehu people, as they were then called, scattered, some fleeing to other tribes’ reservations. By 1924, the tribe could count only 18 members.

In the 1970s, the federal government officially recognized the Sauk-Suiattle as a tribe and demarcated a small reservation. The tribe’s numbers have since grown, but not much: The population now stands at about 200, only a fraction of whom (roughly 70, according to one estimate) live on the reservation.

Yet, considering its diminutive size, the tribe is flush with money—in part from the (up to) $6 million annually awarded in federal and state grants, according to Pugh, who currently works for the tribe on economic development. The tribe receives another $4 million to $6 million dollars a year through slot machines, Pugh says. The Sauk-Suiattle don’t run a casino, but, like other tribes, are entitled to a share in the proceeds from a certain number of gaming machines on other reservations.

Along with Hampton Lumber Mills and the local school district, the tribe stands as one of the area’s biggest employers. At the time of the mass firing, the tribe maintained a staff of about 60, according to Pendergrass. They worked in departments devoted to, among other things, natural resources, cultural resources, health care, housing, and police. Retired Seattle homicide detective Steve O’Leary, who served as the tribe’s police chief from 2007 to 2012, says his four-person department kept busy in part by giving rides to kids who missed the school bus into Darrington.

At least until recently, many of the tribe’s jobs went to whites—slightly more than half, according to Pendergrass’ records. It’s not unusual to see non-Indian faces on reservations, especially as more and more workers are brought in to man casinos and other businesses.

Pendergrass says that while the Sauk-Suiattle maintained an Indian-preference hiring policy, she often would get few applications from Native Americans for skilled jobs.

Herold Hudson is one of the whites who came to the tribe. With experience as an auditor for an accounting firm, he landed a job as the tribe’s chief financial officer in 2007. Two years later, the tribal council asked Hudson to take over as CEO.

Hudson was well aware of the tribe’s history of infighting. Two dominant families—the Josephs and the Enicks—were at each other throats “like the Hatfields and the McCoys,” Hudson says. But at that moment, it seemed to Hudson that the families had come together in a shared vision for economic development and stability. The tribe wanted to build an amphitheater, and insisted upon signing a 10-year contract with Hudson, he says.

Hudson served as a lieutenant colonel in the Army Reserves, however. In 2010 he was called to active duty and deployed to Kuwait, where he ran a base that shipped equipment to Afghanistan and Iraq.

And despite Hudson’s impressions that the tribe was ready to mend its internal rifts, he and others say his deployment lit a tinderbox that has now engulfed the Sauk-Suiattle in acrimony. From his base in the Middle East, Hudson could only watch as racial tension and family rivalry began to tear at the tribe’s core.

Jim Thomas, who hails from the Tlingit people of Alaska and has served in various leadership positions in the region, including at the Affiliated Tribes of Northwest Indians, seemed like a natural choice to oversee the tribe’s operations while Hudson was away.

Arlington attorney Lowell Halverson, a vice-president of the executive council overseeing the Tlingit and Haida tribes, says that Thomas is a “well-respected” figure in the Northwest. Halverson remembers being moved by an essay Thomas presented at an Affiliated Tribes meeting in Washington, D.C., a few years back that was “very passionate, almost statesman-like.” The essay dealt with the challenges facing Native Americans who want to preserve their culture.

“In the beginning, he and I got along exceptionally well,” Pendergrass says of Thomas. She’s talking in her Darrington home on a rainy January day, a fire lit in the family room where she and Denise Baird, once a fellow employee of the Sauk-Suiattle tribe, sit overlooking Pendergrass’ sprawling backyard. In another room is Pendergrass’ husband, a member of the Blackfeet Nation in Montana. (In several cases, Hoffman was wrong in characterizing the people fired as being neither Native nor spouses of Natives.)

But little by little, Pendergrass says, her relationship with Thomas became fraught. “Why are so many whites working here?” Pendergrass says he would ask her. She says she would respond: “If you don’t have Indians apply, you can’t hire them.” (Thomas declined to speak with Seattle Weekly, except to say that the firings came as a surprise to him.)

Even before Thomas came along, some tribal members were hostile toward whites, according to Pendergrass and Baird, both 51, who have known each other since kindergarten in Darrington. In particular, they point to then–council member Norma Joseph, who has since become tribal chair. At one point, Baird says, Joseph asked her why she hadn’t properly introduced herself. “Isn’t that how you do it in your world?” Joseph asked, according to Baird.

“I thought we were in the same world,” Baird says she replied.

“Good morning, Norma,” Pendergrass says she would frequently say to Joseph, who worked in the cultural-resources department. “She’d look right through me.” (Reached by phone, Joseph declined to be interviewed and hung up.)

These slights are minor, however, compared to what Pugh says he and his family have experienced. “This is the most racist culture I’ve ever been a part of,” says Pugh, who spent 11 years as a test-lab manager at Microsoft in addition to serving in the Army. “If you’re not Indian, then you’re not worth having here,” he says some people seem to feel. What’s more, “If you’re not full-blood Indian, then you’re not really Indian.”

Pugh is a quarter-blood Indian, just meeting the tribe’s blood quantum. He says he grew up near the Canadian border in Blaine, and didn’t think too much about his Native heritage until after high school. Stationed at Fort Lewis, he started exploring his roots and got hooked. When he left active duty in 2000, he moved his whole family, including four children, onto the Sauk-Suiattle reservation. His mother moved onto the reservation about the same time.

But although he got elected to the council in 2001, serving one three-year term, and his mother later became chair, Pugh says his family members remained unpopular in certain quarters because they were not “FBI” (full-blooded Indian). “For the first seven years, my wife would drive up to the reservation and people would flip her off,” he says. His wife is white. His three teenage daughters were called “bitches and sluts”—by adults, not by other teenagers, he says. Invitations were not forthcoming to traditional events like naming and cleansing ceremonies.

As Pugh tells it, the environment was ripe for someone to come in and play the race card—someone like Thomas.

Thomas reportedly stirred up other tribal dynamics as well, namely the bitter family rivalries that just before his arrival had appeared to be dissipating. Aligning himself with the Josephs and alienating that family’s rivals, three of the seven tribal council members wanted to oust him, according to Pendergrass. She says he was therefore suspicious of anyone friendly with his opponents, including Pendergrass, whose office was frequented by Mabee. She says Thomas warned her that the relationship was threatening her status with the tribe.

That was about a week before her firing. In fact, she was packing up her office on the morning of the fateful council meeting, which she felt certain would bring bad news one way or another. Not only did she feel her job was at risk, but there was a rumor that the council members sympathetic to Thomas were planning to try to remove Mabee as chair. Hence the tension prevalent at the meeting from the outset, and the presence of Mabee’s children, Pugh and Cindy Harris, a voluble woman who, according to Pendergrass, came running out afterward screaming to the just-dismissed employees: “You’ve just been fired because you’re white!”

Was that what motivated Hoffman? Pendergrass and Baird say he hadn’t previously struck them as anti-white. “When he was running for council, we hoped he would get it,” Baird says. “He seemed very pleasant, respectful.”

One theory is that while Hoffman himself wasn’t anti-white, Joseph and Thomas lavished him with raises for his tribal job, new clothes, and access to the tribal vehicle and credit card to get him to go along with the purge. “Basically, he was used as a pawn by the Josephs,” Hudson, the former CEO, says. He concedes that he can’t prove as much, but says he did see some key pieces of evidence when he returned from deployment, namely receipts from Hoffman’s use of the tribal credit card.

Hoffman is certainly conflicted about the firings. Initially declining comment but then calling back a handful of times to talk, he paints himself as a victim. “I do feel extremely used,” he says, although he never really explains how. He denies he used the Sauk-Suiattle credit card improperly, but concedes that he commandeered a Sauk-Suiattle vehicle. “I was given authority to use a tribal car by Jim Thomas,” he says.

He is insistent, however, that he was not part of any anti-white conspiracy. “My last name is Hoffman. I’m half Jewish and German,” he says. Instead, he says, he brought forward his explosive resolutions because there were “problems” with “every single one of those employees.”

One of the terminated employees, mental-health counselor Artero, was overbilling clients, he charges. (Artero counters that the tribe, not her, handled billing.) A second employee made racist remarks about Indians. Pendergrass, he claims, “would give the inside line” about job openings to her friends. (Pendergrass denies it.)

Hoffman’s inner conflict was perhaps most pronounced last May, when he began to call some of the fired workers.

Baird says she got the first call in May. Hoffman started by expressing an interest in attending Baird’s church, she says. Then, she says, he broached the firings. “He said, ‘What we did was wrong, and we’ll do whatever we can to fix it.’ ”

He called Pendergrass next. “Talk about shock,” she says. “I just about fell over.” They had “multiple conversations” initiated by Hoffman, she says. “I asked him point-blank: Was [the mass firing] racially motivated? He said it was.”

When he told Pendergrass that he wanted to make things right, she says she told him: “There is one thing you could do. You could waive your sovereign immunity.” She says Hoffman initially worried about how that would affect him. Pendergrass assured him that he wouldn’t have to pay any settlement—the tribe’s insurance would cover it. “He said he would be willing to do it as long as it doesn’t cost him personally,” Pendergrass says.

Hoffman—who says that after the firings he experienced a backlash by opponents, including having his young children targeted by paintballs in front of his house— concedes that he told Pendergrass and Baird that he’d had a change of heart. “It was a mistake for me to present any of those terminations,” he says. “I feel really bad about it.” Yet he still insists the firings were for cause, not racial reasons. “It was just the wrong way to do it,” he says, adding that the employees could have been spoken to privately about problems.

He also presents a very different version of his sovereign-immunity conversation with Pendergrass. “She said you can waive sovereign immunity as an individual. I said, ‘Yeah, right.’ It was a sarcastic statement.”

The first legal strike came not from the fired employees, but from Pugh. He filed a suit in tribal court contesting the dismissals, and got none other than the famed and flamboyant criminal-defense attorney John Henry Browne to represent him. Pugh says his mother knew Browne, who was once married to a Native American woman and has a son enrolled in the Tlingit tribe, the same one Thomas is from. (Browne nonetheless says he knows little about Thomas.)

But Browne couldn’t help Pugh’s case. The tribal judge said Pugh didn’t have standing since he hadn’t been fired himself.

Then in January 2012, eight of the dismissed employees, including Pendergrass and Baird, filed their own suit in tribal court, alleging racial discrimination. The tribe countered with a motion for summary judgment, arguing that due to sovereign immunity, the case should be thrown out. Tom Nedderman, the attorney for Travelers’ Insurance, which is representing the tribe, did not return repeated phone calls seeking comment.

“People don’t realize what sovereignty means,” says Nelson Rose, a professor at Whittier Law School in Costa Mesa, Calif., who has studied the issue for years. “When you go to an Indian nation, it’s like going to Mexico.” That might seem a strange notion, not least because of the utter lack of marked borders and the dependence reservations have on federal and state dollars. Yet people are fooled, Rose says, into assuming that the same laws apply on reservations and in the rest of the United States.

When he began looking into the matter 25 years ago, he says he was “astounded” to find that the U.S. Constitution doesn’t hold sway on reservations—including the Bill of Rights, guaranteeing things like free speech. The 14th Amendment, which prevents government from depriving people of life, liberty, and property without due process, also has no currency in Indian country. Nor does Title VII, the portion of the Civil Rights Act that prohibits employment discrimination. At the time he began researching tribal courts, he says, “Two tribes didn’t even allow women the right to vote.”

He doesn’t know of any tribes, though, of whom that’s true now. And it’s not as if the law provides no protections in Indian country. In 1968, Congress passed the Indian Civil Rights Act, which offers some of the same protections as the Bill of Rights. Needle points out that the act prohibits tribes from denying “equal protection” to people within their jurisdiction, a provision he believes outlaws discrimination. “Once again, the issue comes down to sovereign immunity,” Needle says, however. If tribes can’t be sued, that can’t be enforced.

Rose adds that few people cared about sovereign immunity when tribes were “poor and isolated.” He says the advent of Indian gaming has changed all that. “Now you have a lot of people coming onto [Indian] land, and tripping and sometimes dying.”

Witness the case of Jeffrey Young. In 2007, Young, then 55, a psychologist who taught at online universities, wandered onto the Puyallup reservation and into the tribal clinic. Whether the tribe’s casino was his ultimate destination isn’t clear. His brother Chris says he suspects it was. In any case, Young was acting strangely, asking to see his patients and then calling two employees the “Antichrist.”

Three tribal police officers arrived at the scene. According to court documents, the officers kicked Young’s feet out from under him, piled on top of him, Tasered him repeatedly, and cuffed him by his wrists and ankles. Young weighed approximately 300 pounds. By the time a fourth officer arrived, Young’s lips were blue and he had stopped breathing. Young was dead.

The Pierce County Medical Examiner’s office ruled the cause of death “excited delirium.” A forensic pathologist hired by Young’s estate blamed a heart dysfunction caused by the weight of the officers pressing down on Young’s lungs and chest.

“It’s the very definition of false arrest,” says Seattle lawyer Yale Lewis, who represents Young’s estate and points out that Young was never charged with any offense.

The Puyallup tribe hasn’t justified its actions beyond a recitation of Young’s behavior, because it doesn’t have to. After Lewis filed a lawsuit in Puyallup’s tribal court alleging civil-rights violations, the judge ordered a hearing to discuss whether the case should be dismissed because of sovereign immunity. Lewis withdrew the case from tribal court and filed it in Pierce County Superior Court, where sovereign immunity again reared its head, resulting in a dismissal—the same treatment the suit later received in the state Court of Appeals. Ann McCormick, one of several lawyers representing the tribal officers named in the suit, declines to comment.

This past June, Lewis filed a petition with the U.S. Supreme Court asking it to review the case. In October, he received word that the court had asked the Solicitor General to weigh in on the case. “It’s very exciting,” Lewis says, noting that cases passed by the Solicitor General stand a much higher chance of being heard.

“The tribes have no friend in the U.S. Supreme Court,” observes Rose, the Whittier law professor. The court expressed reservations about sovereign immunity in a landmark 1998 case, Kiowa Tribe of Oklahoma v. Manufacturing Technologies, which involved that tribe’s default on a promissory note to buy hundreds of thousands of dollars’ worth of stock. On the one hand, the court reaffirmed that tribal sovereign immunity was virtually absolute. But on the other hand, Rose points out, the court questioned the wisdom of this doctrine and invited Congress to repeal it.

Congress never did. Rose suggests that legislators lack a “political will” to take up sovereign immunity, given the plethora of tribal campaign contributions that have flowed through the Capitol in recent years. Rose doubts the Supreme Court will ever overhaul sovereign immunity on its own, but muses that the justices are “looking for ways to cut back on it.”

The “more progressive tribes” are cutting back on immunity of their own accord, according to McCoy, the state representative. “Tulalip does it all the time, for a specific project or a specific business deal.” Businesses like Home Depot and Walmart that have come onto the reservation, becoming part of a thriving economy sparked by the tribe’s casino, all have immunity waivers written into their contracts, McCoy says.

Still, the Tulalip tribe has not enacted any broad-based waivers, and McCoy notes that “tribes are very protective of their sovereign immunity.” Historically, there’s been a good reason for that, argues Ron Whitener, executive director of the University of Washington’s Native American Law Center. Tribes simply haven’t had the money to pay out legal claims, in large part because they’re “extremely limited in their ability to tax,” Whitener says. With reservations comprising mostly “trust” land held for tribes by the federal government, tribes don’t have access to property taxes.

Tribes do have their newfound gaming riches. But Ron Allen, longtime chair and CEO of the Jamestown S’Klallam Tribe and treasurer of the National Congress of American Indians, asserts that “The majority of tribes don’t have casinos, and of those that do, only a handful are very successful.” He suggests that tribes have no choice but to hold onto sovereign immunity.

The Sauk-Suiattle’s grip, however, proved not to be as firm as might have been expected.

Ruling in October, Judge Randy Doucet, who comes from a pool of judicial officers supplied to tribes by the Northwest Intertribal Court System, rejected the tribe’s motion to dismiss the case.

The plaintiff’s success can be traced in part to Hoffman’s efforts to make amends. Needle and Mindenbergs argued that sovereign immunity shouldn’t hold because Hoffman expressed a desire, in conversations with Pendergrass and Baird, to waive it. The judge didn’t totally buy that argument. Hoffman was not empowered to waive immunity on behalf of the entire tribe. But he might be able to waive it on his own behalf. Doucet said the matter raised factual and legal questions that required further review.

The judge also acknowledged that the council’s dismissals might have been outside the scope of its authority. That’s what the plaintiffs argued, because the tribe’s own employee handbook forbids discrimination. Without knowing whether the tribe acted legally, the judge said he couldn’t say whether it could use sovereign immunity as a shield.

Such rulings are the picayune stuff of legal cases, yet given the ways in which suits against tribes have been stopped at the gate in the past, Susan Mindenbergs, who is working with Needle on the case, calls the victory “amazing.”

“It is very difficult to succeed” given courts’ deference to sovereign immunity, says Needle, talking with his fellow counsel in their shared Pioneer Square offices. Having done little previous work in Indian country, he says they’ve dived into similar cases only to discover that most of the time, “you’re knocking your head against the wall” to sue a tribe.

The tribe has appealed Doucet’s decision, and a hearing is scheduled for April 2 in tribal court. “Even if we lose in court, we’re not done,” Pendergrass vows. “We haven’t even started contacting the funding agencies” that dole out federal grants to the Sauk-Suiattle, she says—grants that are supposed to be conditional on the tribe’s adherence to basic federal laws, like those outlawing discrimination. She and her fellow plaintiffs will ask the agencies to enforce their rules.

That may not be the only gauntlet ahead for the Sauk-Suiattle. Both Hudson and O’Leary, the former CEO and police chief, say they too are likely to sue the tribe. Both were caught up in the controversy over the mass firing and were subsequently fired themselves.

The police job is still open—one of six open positions advertised on the tribe’s website, along with a clinic manager, a chemical-dependency counselor, and a medical assistant.

It’s not hard to imagine that under the circumstances, the tribe might have a difficult time filling these positions. Some believe that the council eventually would have fired even more employees if there hadn’t been a backlash. In the tense days after the tumultuous 2011 meetings, Pugh recalls, the chair ordered that locks be put on the administration building to prevent further havoc.

A year and a half later, Pendergrass and Baird still seem choked up by what happened. They say they loved their jobs, which offered good pay and benefits. Pendergrass says she was proud of making sure all the employment policies were followed on her watch. Baird says her varied court and police duties kept things interesting. “I even mopped when I had free time,” Baird says. “You just want to keep the place presentable,” she says.

Neither has yet found a new job. Baird has taken to selling Cookie Lee jewelry at house parties. “It hurt,” she says of her abrupt dismissal. “It hurt real bad.” E

nshapiro@seattleweekly.com

 
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