OLYMPIA – Ending a case that threatened to test tribal sovereignty before the nation’s highest court, two construction companies affiliated with Confederated Tribes of the Colville Reservation have settled a lawsuit by a white worker who said he was racially harassed on the job.
Most terms of the settlement were undisclosed, but in an unusual twist, it includes a public agreement that non-Indian employees can file such cases in tribal court in the future.
“My client is happy with the terms of the settlement,” said Spokane attorney Breean Beggs, with the public-interest Center for Justice.
An tribe attorney, Bruce Didesch, could not be reached for comment Monday.
The case involved Christopher Wright, a Puget Sound pipe layer and equipment operator hired in 2002 by Colville Tribal Services Corp., one of 14 businesses run by the Colville Tribal Enterprise Corp. According to court documents, 80 percent of the corporation’s profits – mostly from gambling, forest products and construction – support tribal government operations. CTEC, which employs more than 1,000 and does more than $140 million in business annually, is the state’s largest Native American business.
The construction corporation hired Wright to work on a $4 million water system replacement at a U.S. Navy housing complex on Whidbey Island. But Wright said he was repeatedly harassed and abused by Native American co-workers. One “constantly spat” on him while taunting him with racial slurs, he said. Another threatened to kill whites and burn their homes.
Wright said he repeatedly complained to his boss. Company officials called one meeting and told workers that racial epithets and harassment wouldn’t be tolerated. But nothing changed, Wright said. He quit after eight months and filed suit.
Under longstanding federal law, tribes have sovereign immunity from lawsuits. They can be sued only if they consent or if Congress approves.
Wright’s case was a key test of how far that immunity extends to business ventures run by a tribe. In December, the Washington state Supreme Court ruled 6-3 against him. The justices said that the tribal corporations were critical to the tribe’s operation and thus enjoyed the same sovereign immunity from being sued. It’s believed to be the first ruling of its kind in the state.
Wright was appealing the case to the U.S. Supreme Court when tribal corporation attorneys agreed to settle.
The high court has a mixed record in recent decades on such issues, said professor Robert Anderson, director of the University of Washington’s Native American Law Center. The court generally has been cutting back on tribes’ power to regulate non-Indians, but has so far demurred on sovereignty cases, saying the matter is up to Congress.
Faced with periodic threats from Congress to do away with the protection, Anderson said, tribes are increasingly agreeing to allow claims by non-Indians to be heard in tribal court. Tribal law typically limits the maximum payout to the upper limit of a tribe’s liability insurance. In business cases, Anderson said, it’s common for companies doing business with tribes to negotiate at least a partial waiver of tribal immunity into their contracts.
“This is one of the reasons why Indian law is on the bar exam now in Washington state,” he said.
Beggs said that he would have been comfortable taking Wright’s case to a Colville tribal court. But, he said, tribal law was ambiguous about whether a non-Indian could even file such a case there.
Anderson, of UW, also said non-Indian plaintiffs shouldn’t hesitate to take cases to tribal court “any more than anyone from Idaho ought to be concerned about going into a Washington court.”
“Tribal courts have really come a long way in recent years,” he said. “They have professional judiciaries and law clerks. They do a good job of dispensing justice fairly.”
Beggs said the agreement to hear such cases in tribal court is a clear win for any non-tribal workers wronged on the job.
“It makes it clear that someone in the future who has this kind of issue will know exactly what to do and where to go,” he said.