Evan M.T. Thompson Chad E. Adams BROWNING, KALECZYC, BERRY & HOVEN, P.C. 800 N. Last Chance Gulch Suite 101 P.O. Box 1697 Helena, MT 59624 Telephone: (406) 443-6820 Facsimile: (406) 443-6882 [email protected] / [email protected]Attorneys for Chippewa-Cree Housing Authority, Donna S. Hay and Thela Billy IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA GREAT FALLS GLENN EAGLEMAN, THERESA SMALL, and CELESIA EAGLEMAN, Plaintiffs, v. ROCKY BOY CHIPPEWA-CREE TRIBAL BUSINESS COMMITTEE or COUNCIL Richard Morsette, Chairman; Chippewa-Cree Tribal Appellate Court, Chief Justice Toriann Donahoe; Chippewa-Cree Housing and Donna S. Hay, in her capacity as Director; Donna S. Hay, individually; Thela Billy, in her capacity as an employee of CCH; Thela Billy, individually; Chippewa-Cree Water Resources Department/Utilities and James Morsette, in his capacity as Director; Chippewa-Cree Public Works Department and Timothy Rosette, Sr., in his capacity as Director; Chippewa-Cree Case No. 4:14-CV-00073-BMM DEFENDANTS CHIPPEWA- CREE HOUSING AUTHORITY, DONNA S. HAY AND THELA BILLY’S BRIEF IN SUPPORT OF MOTION TO DISMISS Case 4:14-cv-00073-BMM Document 16 Filed 07/08/15 Page 1 of 39
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Evan M.T. Thompson Chad E. Adams BROWNING, KALECZYC, BERRY & HOVEN, P.C. 800 N. Last Chance Gulch Suite 101 P.O. Box 1697 Helena, MT 59624 Telephone: (406) 443-6820 Facsimile: (406) 443-6882 [email protected] / [email protected] Attorneys for Chippewa-Cree Housing Authority, Donna S. Hay and Thela Billy
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA
GREAT FALLS GLENN EAGLEMAN, THERESA SMALL, and CELESIA EAGLEMAN,
Plaintiffs, v. ROCKY BOY CHIPPEWA-CREE TRIBAL BUSINESS COMMITTEE or COUNCIL Richard Morsette, Chairman; Chippewa-Cree Tribal Appellate Court, Chief Justice Toriann Donahoe; Chippewa-Cree Housing and Donna S. Hay, in her capacity as Director; Donna S. Hay, individually; Thela Billy, in her capacity as an employee of CCH; Thela Billy, individually; Chippewa-Cree Water Resources Department/Utilities and James Morsette, in his capacity as Director; Chippewa-Cree Public Works Department and Timothy Rosette, Sr., in his capacity as Director; Chippewa-Cree
Case No. 4:14-CV-00073-BMM
DEFENDANTS CHIPPEWA-CREE HOUSING AUTHORITY,
DONNA S. HAY AND THELA BILLY’S
BRIEF IN SUPPORT OF MOTION TO DISMISS
Case 4:14-cv-00073-BMM Document 16 Filed 07/08/15 Page 1 of 39
Health Center and Fawn Tadio, in her capacity as CEO; Una Ford, R.N., in her capacity as an employee of Chippewa-Cree Health Center; Chippewa-Cree Environmental Health Division and Tim Rosette, in his capacity as Division Chief; John Does or entities 1-12, yet to be named,
Defendants.
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TABLE OF CONTENTS Page
TABLE OF CONTENTS …………………………………………………………i TABLE OF AUTHORITIES……………………………………………………..iii INTRODUCTION ………………………………………………………………..1 FACTUAL BACKGROUND …………………………………………………….1 ARGUMENT……………………………………………………………………...4
I. PLAINTIFFS’ ACTION IS TIME BARRED……………………….4
II. PLAINTIFFS’ CLAIMS ARE MOOT ……………………………...5
III. LACHES……………………………………………………………..6
IV. THIS COURT HAS NO BASIS TO ASSUME SUBJECT MATTER JURISDICTION …………………………………………8
a. Tribal Court Has Exclusive Jurisdiction …………………………8
b. Plaintiffs Were Not Denied Due Process ……………………….13
c. Plaintiffs Did Not Exhaust All Available Tribal Remedies …….16
V. CCHA’S SOVEREIGN IMMUNITY DIVESTS THIS COURT OF ANY SUBJECT MATTER JURISDICTION IT ARGUABLY HAS …………………………………………………18
a. Existence of Federal Question Does Not Defeat Sovereign Immunity ………………………………………………………..20
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b. CCHA Enjoys Sovereign Immunity as an Arm of Tribal Government ……………………………………………………..21
c. CCHA Did Not Waive Sovereign Immunity ……………………23
d. “Sue and Be Sued” Clauses Are Insufficient to Waive Tribal Sovereign Immunity ……………………………………24
e. Procuring Insurance or Participating in a Risk Management Pool Cannot Implicitly Waive Sovereign Immunity ……………26
f. Tribal Officials Enjoy Sovereign Immunity …………………….27
CONCLUSION…………………………………………………………………...29 CERTIFICATE OF COMPLIANCE……………………………………………..29 CERTIFICATE OF SERVICE……………………………………………………30 EXHIBITS INDEX ……………………………………………………………….31
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TABLE OF AUTHORITIES
CASES Page
Alkire v Standing Rock Housing Authority, File # COMP 11-087, Memorandum Opinion, Order for Judgment, and Judgment of Dismissal (June 30, 2011) …………………………………………………27 Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006)……………….…..22 Allstate Indem. Co. v. Stump, 191 F.3d 1071 (9th Cir.) ……………………….…11 Alvarez v. Tracy, 773 F.3d 1011 (9th Cir. 2014) >>…………………………16, 17 Amerind Risk Mgt. Corp. v. Malaterre, 633 F.3d 680 (8th Cir. 2011) ………18, 24 Anderson v. Air W., Inc., 542 F.2d 522 (9th Cir. 1976)…………………………....7 Arizona Pub. Serv. Co. v. Aspaas, 77 F.3d 1128 (9th Cir. 1995)…………………12 Atkinson v. Haldane, 569 P.2d 151 (Alaska 1977)……………………………….26 AT & T Corp. v. Coeur d'Alene Tribe, 295 F.3d 899 (9th Cir. 2002)……10, 11, 14 Boozer v. Wilder, 381 F.3d 931 (9th Cir. 2004)………………………………….16 Buchanan v. Sokaogon Chippewa Tribe, 40 F. Supp. 2d 1043 (E.D. Wis. 1999)……………………………………………….………….25 Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006)…………………………9, 10, 12 C & L Enter., Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001) ……………………………………………………….23 Chemehuevi Indian Tribe v. Cal. St. Bd. of Equalization, 757 F.2d 1047 (9th Cir. 1985)……………………………………………………………..18 Couveau v. Am. Airlines, Inc., 218 F.3d 1078 (9th Cir.2000) ……………………..7
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Crow Tribe of Indians v. Racicot, 87 F.3d 1039 (9th Cir. 1996) ……….………..10 Demontiney v. United States, 255 F.3d 801 (9th Cir. 2001) ……………………..19 Dillon v. Yankton Sioux Tribe Housing Authority, 144 F.3d 581 (8th Cir. 1998)…………………………………………………………..22, 24 E.E.O.C. v. Karuk Tribe Hous. Auth., 260 F.3d 1071 (9th Cir. 2001)………..11, 22 In re Eisen, 31 F.3d 1447 (9th Cir. 1994) ………………………………………….7 Enlow v. Moore, 134 F.3d 993 (10th Cir. 1998) ……………………………..…….9 Evergreen Safety Council v. RSA Network Inc., 697 F.3d 1221 (9th Cir. 2012) ………………………………………………………………6 Fisher v. Dist. Court of Sixteenth Judicial Dist. of Montana, in & for Rosebud Cnty., 424 U.S. 382, 96 S. Ct. 943 (1976) ……………...11 Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040 (8th Cir. 2000) …...24, 25 High Country Citizens Alliance v. Clarke, 454 F.3d 1177 (10th Cir.2006) ……...20 Ingrassia v. Chicken Ranch Bingo and Casino, 676 F.Supp.2d 953, (E.D. Cal. 2009) ……………………...18, 19, 22, 23, 27 Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 107 S. Ct. 971 (1987) ……….9, 10, 12 Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894 (9th Cir. 2006)…..4 Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751(1998) ………………………………………………………..23 Koberg v. John Alden Life Ins. Co., No. CV-11-21-BU-RFC, 2011 WL 6122309, at *5 (D. Mont. Dec. 8, 2011) …………………………4 Linneen v. Gila River Indian Comm., 276 F.3d 489 (9th Cir. 2002) ………….22, 27 Makarova v. United States, 201 F.3d 110 (2nd Cir. 2000) ………………………..19
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Miccosukee Tribe of Indians v. Napoleoni, 890 So.2d 1152 (Fla. 1st DCA 2004) ……………………………………………………….26 Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007 (10th Cir. 2007) ……………………………………………………11, 20, 21 Mitchell v. Forsyth, 472 U.S. 511 (1985) ……………………………………….19 Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245 (1981) ………………….9 Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985)………...10, 12 Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304 (2001) …………………………17 Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21 (1st Cir. 2000) ……………………………………………….24 Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991) …………………………………………………...23, 24 Oregon v. Leg. Services Corp., 552 F.3d 965 (9th Cir. 2009) ……………………19 Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 98 S. Ct. 2396 (1978)…...10 Pearson v. Dennison, 353 F.2d 24 …………………………………………………7 People of State of Cal. ex rel. California Dept. of Fish and Game v. Quechan Tribe of Indians, 595 F.2d 1153 (9th Cir. 1979) ………………...18 Ramey Const. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315, (10th Cir.1982) …………………………………………………………….20 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S. Ct. 1670 (1978)……………………………………………………..8, 9, 11, 12, 18, 24 Seminole Tribe of Florida v. McCor, 903 So.2d 353 (Fla.2d DCA 2005) …….…26 Siegert v. Gilley, 500 U.S. 226 (1991) …………………………………………....19 Smith v. Babbitt, 875 F.Supp. 1353 (D.Minn. 1995) …………………………….18
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Snow v. Quinault Indian Nation, 709 F.2d 1319 (9th Cir.1983) …………………18 St. Marks v. Chippewa–Cree Tribe of Rocky Boy Reservation, Mont., 545 F.2d 1188 (9th Cir.1976) ……………………………………………..16 Stock West Corp. v. Lujan, 982 F.2d 1389 (9th Cir. 1993) ……………………….22 U.S. v. Nordic Village Inc., 503 U.S. 30, 112 S. Ct. 1011 (1992) ………………..24 U.S. Trust Co. of Delaware v. Sun Life Assur. Co. of Canada, No. C12-1283 MJP, 2014 WL 33670, at *2 (W.D. Wash. Jan. 6, 2014) …...4 United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981) …………………………27 Unkeowannulack v. Table Mountain Casino, No. CVF07-1341 AWI DLB, 2007 WL 4210775, at *6 (E.D. Cal. Nov. 28, 2007) ……………………...20 Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980) ……………………………………………………….11 White Mountain Apache Tribe v. Industrial Comm’n of Arix., 696 P.2d 223 (Ariz. Ct. App. (1985) ………………………………………26 OTHER Chippewa-Cree Law and Order Code, Title I, Chapter 2, § 2.1 …………………..9 Chippewa-Cree Law and Order Code, Title I, Chapter 3, § 3.3 …………………21 Chippewa-Cree Law and Order Code, Title I, Chapter 4, § 4.1(1) ……………….5 Tribal Ordinance 3-63 ……………………………………………………21, 23, 25 28 U.S.C. § 1331 …………………………………………………………………20 Fed.R.Civ.P. 12(h)(3)………………………………………………..……………19
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Defendants, Chippewa-Cree Housing Authority, Donna S. Hay and Thela
Billy (collectively hereinafter “CCHA”), submit this Brief in Support of their
Motion to Dismiss.
INTRODUCTION
Plaintiffs improperly request this Court act as general appellate body for the
Chippewa-Cree Appellate Court (“Appellate Court”) and Chippewa-Cree Tribal
Court (“Tribal Court”). Plaintiffs seek a declaration reversing the Appellate
Court’s determination that sovereign immunity bars suit against CCHA and
demand this matter be remanded to Tribal Court for redetermination under various
injunctions they wish this Court to impose. See Second Amended Complaint, Dkt.
No.11, ¶¶ 39-45. This is not a permissible function of the Court.
FACTUAL BACKGROUND
Plaintiffs filed suit in Tribal Court in 2009 alleging damages resulting from
an explosion occurring in April of 2007. See Tribal Court Complaint, ¶ 19
(attached as Exhibit A). Plaintiffs Glenn and Celesia Eagleman are members of
the Chippewa-Cree Tribe (“Tribe”) and Theresa Small, Mr. Eagleman’s niece, is a
Fort Belknap Reservation tribal member, and all Plaintiffs resided on the
Chippewa-Cree Reservation on trust property at the time of the explosion. Ex. A,
¶¶ 2, 67-70. With the Tribal Court Complaint, Plaintiffs voluntarily and expressly
availed themselves of the jurisdiction of the Tribal Court. Ex. A, ¶¶ 66 & 70.
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CCHA moved to dismiss Plaintiffs’ action in Tribal Court because Plaintiffs
failed to file their claim within the applicable one year statute of limitation and
because CCHA enjoyed sovereign immunity. See Motion to Dismiss (May 12,
2009) (attached as Exhibit B). Plaintiffs responded but did not expressly request
discovery to support their erroneous belief sovereign immunity was waived.
Plaintiffs’ Response to CCHA’s Motion to Dismiss (June 4, 2009) (attached as
Exhibit C). While Plaintiffs alluded to discovery they anticipated might establish
waiver of sovereign immunity by the Tribe itself, they did not request discovery or
make similar allusions regarding CCHA’s sovereign immunity. Id., p. 9. Rather,
Plaintiffs’ focus was on the “sue and be sued” clause in the charter documents
establishing CCHA and the erroneous belief CCHA’s procuring insurance was an
implicit waiver of sovereign immunity. Id., pp. 6-11. Plaintiffs did not submit any
discovery requests to CCHA.
The Tribal Court ultimately dismissed Plaintiffs’ claims, holding they were
barred by the applicable one year statute of limitation and CCHA’s sovereign
immunity. See Order Dismissing Case (attached as Exhibit D). Plaintiffs appealed
the Order to the Appellate Court.
For the first time, on appeal, Plaintiffs suggested discovery was needed.
However, Plaintiffs limited the scope of the suggested discovery to establishment
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ordinances of unidentified corporate defendants and proof of insurance. See
Appellant’s Brief in Support of Appeal, (attached as Exhibit E).
On October 7, 2011, the Appellate Court affirmed the Tribal Court’s
dismissal of Plaintiffs’ claims against CCHA. See Opinion (attached as Exhibit F).
However, the Appellate Court reversed the dismissal of Plaintiffs’ claims against
Mike Morsette and remanded to Tribal Court for further proceedings. Id.; see also
Order (Oct. 14, 2011) (attached as Exhibit G). Thus, Plaintiffs were left with a
potential remedy against Mr. Morsette, who did not enjoy sovereign immunity.
Plaintiffs then attempted to seek review of the Appellate Court’s Opinion
from the Chippewa-Cree Business Committee (“Business Committee”). See Letter
from Business Committee to Mark Mackin (Nov. 28, 2011) (attached as Exhibit
H). However, the Business Committee advised Plaintiffs it is a separate branch of
tribal government and could not provide judicial review. Id.
Plaintiffs took no further action until they filed their Complaint in this Court,
approximately three years after the Appellate Court’s Opinion was issued. See
Complaint, Dkt. No. 1. Plaintiffs twice amended their Complaint and did not
complete service until June 2015. See Second Amended Complaint, Dkt. No. 11.1
1 CCHA reserves the right to pursue dismissal, if necessary, on the basis of insufficient service of process as it is unclear whether Plaintiffs timely or adequately served CCHA.
While Plaintiffs allege settlement discussions took place among the parties in
February 2013, CCHA was not involved in those discussions. Id., at ¶ 31.
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On these facts, this Court should dismiss this action because among other
grounds, (1) Plaintiffs’ claims are time barred; (2) the issue of sovereign immunity
is moot; (3) this Court does not have jurisdiction to provide appellate review; and
(4) CCHA enjoys sovereign immunity.
ARGUMENT
I. PLAINTIFFS’ ACTION IS TIME BARRED.
Plaintiffs’ action is barred by the applicable statute of limitation. The
purpose of statutes of limitation is to encourage promptness in the prosecution of
actions; to avoid injustice which results from prosecution of stale claims; and to
protect against prejudice caused by lost evidence, faded memories and
disappearing witnesses. Johnson v. Columbia Properties Anchorage, LP, 437 F.3d
894, 901 (9th Cir. 2006) (citation omitted).
“Declaratory judgment actions borrow their statute of limitations from the
underlying controversy.” U.S. Trust Co. of Delaware v. Sun Life Assur. Co. of
Koberg v. John Alden Life Ins. Co., No. CV-11-21-BU-RFC, 2011 WL 6122309, at
*5 (D. Mont. Dec. 8, 2011) (Statute of limitation for declaratory judgment action is
the same as associated civil claims).
Here, the applicable statute of limitation is one year. Under the Tribe’s
laws, any action against the Tribe or its officers or employees arising from the
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performance of their official duties must be commenced within one year of the date
the cause of action arose.2
The Tribal Court confirmed, and the Appellate Court affirmed, the one year
statute of limitation applied to the underlying action. See Ex. D. The Appellate
Court’s final action in this matter was October 14, 2011. See Exs. F & G.
Plaintiffs did not file their Complaint in this Court until three years later. See
Complaint, Dkt. No. 1. Plaintiffs now, more than eight years after the events
complained of in Tribal Court, improperly seek this Court’s appellate review.
Applying the applicable one year statute of limitation, Plaintiffs’ claims are time
barred.
See Chippewa-Cree Law and Order Code, Title I,
Chapter 4, § 4.1(1) (attached as Exhibit I).
Authorizing Plaintiffs to disregard the applicable statute of limitation would
prejudice CCHA, be a miscarriage of justice, and would frustrate the very policy
statutes of limitation are meant to promote. As Plaintiffs failed to timely file their
Complaint, their action should be dismissed. Failing to comply with statutes of
limitation is the modus operandi of Plaintiffs and they should not be permitted to
pursue excessively stale claims.
II. PLAINTIFFS’ CLAIMS ARE MOOT.
Plaintiffs improperly request this Court act as an appellate body for the
sovereign Tribal Court system. While this is not an authorized procedure, or 2 CCHA does not concede waiver of sovereign immunity by reference to the statute.
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function of this Court, Plaintiffs’ requests are moot because they fail to accept their
claims were dismissed on alternate grounds, for which they do not seek review.
The Tribal Court’s Order Dismissing Case references two grounds for dismissal:
(1) failure to comply with the applicable one year statute of limitation, and (2)
sovereign immunity. See Exs. D & I. The Tribal Court’s decision was upheld on
appeal. See Ex. F.
Plaintiffs do not seek review of the determination their claims were time
barred; but rather, limit their focus to sovereign immunity. Even if this Court were
empowered to entertain Plaintiffs’ request for relief, reversing the Appellate
Court’s decision regarding sovereign immunity and remanding this matter to Tribal
Court for further proceedings would be futile, as Plaintiffs’ claims remain barred
by the applicable statute of limitation. The issue pending before the Court is moot,
as it will not change the result Plaintiffs seek to avoid.
III. LACHES.
Even if Plaintiffs’ claims were not barred by the statute of limitation, the
doctrine of laches should be applied to bar their claims. Laches is an equitable
defense that prevents plaintiffs, who with full knowledge of the facts, acquiesce in
transactions and sleep upon their rights. Evergreen Safety Council v. RSA Network
Inc., 697 F.3d 1221, 1226 (9th Cir. 2012) (citations omitted)). To prove laches, the
defendant must demonstrate both unreasonable delay and prejudice to itself.
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Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S. Ct. 2396, 2403
(1978).
Furthermore, as a general rule, federal courts must recognize and enforce
tribal court judgments under principles of comity. AT & T Corp. v. Coeur d'Alene
Tribe, 295 F.3d 899, 903 (9th Cir. 2002). “Unless the district court finds the tribal
court lacked jurisdiction or withholds comity for some other valid reason, it must
enforce the tribal court judgment without reconsidering issues decided by the tribal
court.” Burrell, 456 F.3d at 1168 (citing AT & T Corp., 295 F.3d at 905); see also
Crow Tribe of Indians v. Racicot, 87 F.3d 1039, 1043-44 (9th Cir. 1996)
(“Unless…the Tribal Court lacked jurisdiction…proper deference to the tribal
court system precludes relitigation of issues raised...and resolved in the Tribal
Courts.”); Iowa Mutual Insurance Company, 480 U.S. at 19 (Federal court’s
exercise of jurisdiction over reservation affairs may impair the authority of tribal
courts). As the Burrell Court stated:
[W]e emphasize that federal courts are not the general appellate body for tribal courts. As the Supreme Court has instructed, the federal policies promoting tribal self-government and self-determination instruct us to provide great deference to tribal court systems, their practices, and procedures. This heed we do not take lightly.
Burrell, 456 F.3d at 1173 (citing Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471
U.S. 845, 856 (1985)).
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Typically, federal court review is limited to instances where a tribe’s
assumption of subject matter jurisdiction is challenged. Allstate Indem. Co. v.
determination sovereign immunity barred suit against non-Indians, was only
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available where non-Indians had been denied any remedy in tribal forum). As the
Santa Clara Pueblo Court stated:
[S]ubject[ing] a dispute arising on the reservation among reservation Indians to a forum other than the one they have established for themselves, may “undermine the authority of the tribal court . . . and hence . . . infringe on the right of the Indians to govern themselves.” A fortiori, resolution in a foreign forum of intratribal disputes of a more “public” character…cannot help but unsettle a tribal government's ability to maintain authority.
Santa Clara Pueblo, 436 U.S. at 59-60, 98 S. Ct. at 1677-78 (internal citations
omitted).
Challenge of a tribe’s jurisdiction must be made initially in tribal court,
pursuant to the doctrine requiring exhaustion of tribal court remedies. Iowa Mut.
Ins. Co, 480 U.S. at 16; Nat’l Farmers, 471 U.S. 845. CCHA is unaware of any
authority which would authorize Plaintiffs’ pursuit to have this Court provide
appellate review of the Tribal or Appellate Court and/or provide the injunctive
relief they seek in the form of this Court’s oversight on remand. Additionally,
federal court jurisdiction does not appear to be appropriate unless a tribal court
erroneously determines it has jurisdiction over a matter involving non-Indians.
jurisdiction does not negate an Indian tribe's immunity from suit. Miner Elec., 505
F.3d at 1011. “Indeed, nothing in § 1331 unequivocally abrogates tribal sovereign
immunity.” Id. “’In the context of the United States' sovereign immunity, courts
have held:
[w]hile 28 U.S.C. § 1331 grants the court jurisdiction over all civil actions arising under the Constitution, laws or treaties of the United States, it does not independently waive the Government's sovereign immunity; § 1331 will only confer subject matter jurisdiction where some other statute provides such a waiver.”
Miner Elec., 505 F.3d at 1011 (citing High Country Citizens Alliance v. Clarke,
929, 127 S.Ct. 2134 (2007)). “Tribal sovereign immunity is deemed to be
coextensive with the sovereign immunity of the United States.” Miner Elec., 505
F.3d at 1011 (citing Ramey Const. Co. v. Apache Tribe of Mescalero Reservation,
Case 4:14-cv-00073-BMM Document 16 Filed 07/08/15 Page 28 of 39
21
673 F.2d 315, 319–20 (10th Cir.1982)). “Therefore, in an action against an Indian
tribe…§ 1331 will only confer subject matter jurisdiction where another statute
provides a waiver of tribal sovereign immunity or the tribe unequivocally waives
its immunity.” Miner Elec., 505 F.3d at 1011 (emphasis added).
b. CCHA Enjoys Sovereign Immunity as an Arm of Tribal Government.
This Court may not decide this matter because CCHA is an arm of the
Chippewa-Cree Tribal Government and enjoys immunity from suit. The Tribe has
statutorily preserved its sovereign immunity:
The Tribe shall be immune from suit in any civil action, and its officers and employees immune from suit for any liability arising from the performance of their official duties, except as required by federal law or the Chippewa-Cree Constitution and By-Laws, or as specifically waived by a resolution or ordinance of the Business Committee.
Chippewa-Cree Law and Order Code, Title I, Chapter 3, § 3.3 (attached as Exhibit
K) (emphasis added). The Ordinance establishing CCHA also preserves CCHA’s
sovereign immunity. See Tribal Ordinance 3-63 (attached as Exhibit L). The
Ordinance reads in pertinent part:
The Council hereby gives its irrevocable consent to sue and be sued in its corporate name, upon any contract, claim or obligation arising out of its activities under this ordinance and hereby authorizes the Authority to agree by contract to waive any immunity from suit which it might otherwise have.
See Ex. L, § V(2)(a) (emphasis added).
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Notably, the Business Committee appoints CCHA board members and has
the power to remove them. See Ex. L, §§ II(a), III(b), IV(1)(a-d). Moreover, the
Tribe officially recognizes CCHA as an arm of the tribal government functioning
on behalf of the Business Committee. See Ex. F, pp. 3-4 (citing Resolution No.
76-96, p. 1-2); Ex. L, §§ I(a-f), II(a-c).
A tribe's sovereign immunity extends both to tribal governing bodies and to
tribal agencies which act as an arm of the tribe. Ingrassia, 676 F. Supp. 2d at 956
(citing Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006)). It is
well established Indian housing authorities, like CCHA, are tribal governmental
entities and agencies immune from suit. See, e.g., E.E.O.C., 260 F.3d at 1080
(“[Tribal housing authorities are] not simply business entit[ies] that happen to be
run by a tribe or its members, but, rather, occup[y] a role quintessentially related to
self-governance.”); Dillon v. Yankton Sioux Tribe Housing Authority, 144 F.3d
581, 583 (8th Cir. 1998) (determining tribal housing authority was a tribal,
governmental agency, rather than a separate corporate entity). An agency or arm
of tribal government enjoys sovereign immunity, and its immunity must be
unequivocally waived if an action is to be maintained. Linneen v. Gila River
Indian Comm., 276 F.3d 489, 492 (9th Cir. 2002); Stock West Corp. v. Lujan, 982
F.2d 1389, 1398 (9th Cir. 1993).
Case 4:14-cv-00073-BMM Document 16 Filed 07/08/15 Page 30 of 39
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There are only two ways CCHA can be divested of its sovereign immunity:
(1) Congress may waive tribal immunity; or (2) CCHA may waive its immunity by
written contract. Ex. L, § V(2)(a); Oklahoma Tax Comm'n v. Citizen Band
Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991). Waiver of tribal sovereign
immunity may not be implied and must be expressed unequivocally. Ingrassia,
676 F. Supp. 2d at 956.
CCHA was expressly established as a government agency and its sovereign
immunity is statutorily preserved. See Ex. L, § V(2)(a). While CCHA is free to
waive its sovereign immunity, it must be done by written contract. Id. This was
never done. Accordingly, dismissal is appropriate because CCHA is a tribal
government agency and is immune from suit absent a clear and unequivocal
waiver.
c. CCHA Did Not Waive Sovereign Immunity.
Tribal Ordinance 3-63 preserves the vital principle that CCHA enjoys
sovereign immunity and provides CCHA may only waive its sovereign immunity
by written instrument. Ex. L, § V(2)(a). The Tribe’s statutory requirement for
waiver of sovereign immunity to be in writing is consistent with United States
Supreme Court interpretation of the sovereign immunity doctrine. C & L Enter.,
Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001);
Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S.
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751(1998); Santa Clara Pueblo, 436 U.S. at 58. “A waiver of sovereign immunity
may not be implied, but must be unequivocally expressed by either the Tribe or
As demonstrated, obtaining liability coverage does not waive sovereign
immunity. Rather, it provides protection of tribal assets and limits total exposure
in the event a tribe’s sovereign immunity is waived, abrogated or ignored. In sum,
whether CCHA participates in a risk management pool, or procures insurance, has
no effect on its sovereign immunity. This provides further support for dismissal.
f. Tribal Officials Enjoy Sovereign Immunity.
It is well settled tribal sovereign immunity extends to tribal officials when
acting in their official capacity and within the scope of their authority. Ingrassia,
676 F. Supp. 2d at 956 (citing United States v. Oregon, 657 F.2d 1009, 1013 n. 8
(9th Cir. 1981); Linneen v. Gila River Indian Cmty., 276 F.3d 489, 492 (9th Cir.
2002). Additionally, the Tribe’s extension of its sovereign immunity to tribal
officials is expressly provided by statute. Ex. K, § 3.3.
The substance of Plaintiffs’ allegations does not suggest Ms. Hay or Ms.
Billy acted outside their official capacity or scope of their authority with regard to
the alleged actions or omissions alleged in the Tribal Court Complaint. In fact,
Plaintiffs’ allegations do not identify actions attributable to Ms. Hay or Ms. Billy
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outside their official capacity and both are expressly referenced by Plaintiffs in
their capacity as CCHA officials. Ex. A, ¶¶ 36, 51-63. Plaintiffs allege: (1) “[Ms.]
Billy, an employee of CCH[A],” authorized the disposal of condemned house
materials; and (2) “[Ms.] Hay, Director of CCH[A],” and/or CCHA defrauded
Plaintiffs regarding availability of insurance coverage for rebuilding the house or
their damages. Id. The referenced allegations make up the entirety of Ms. Hay
and Ms. Billy’s involvement in Plaintiffs’ lawsuit. Plaintiffs will be hard pressed
to establish CCHA’s authorizing disposal of the bits and pieces of the exploded
home and explaining Plaintiffs’ damages were not compensable under CCHA’s
insurance coverage, was in any way beyond either employee’s official capacity or
scope of authority. Because the referenced actions of Ms. Hay and Ms. Billy could
only be done in their capacity as CCHA employees, and such actions are the type
that would be implicitly authorized during the course of employment, they are
entitled to sovereign immunity protection under the foregoing principles of law.
As such, CCHA requests the Court dismiss the claims against its employees as
they enjoy sovereign immunity as Tribal officials.
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CONCLUSION
For the reasons set forth herein, CCHA respectfully requests the Court
dismiss Plaintiffs’ claims with prejudice and grant such other and further relief as
the Court deems just and proper.
DATED this 8th day of July, 2015.
BROWNING, KALECZYC, BERRY & HOVEN, P.C.
By: /s/ Evan M.T. Thompson Evan M.T. Thompson
Attorneys for Chippewa-Cree Housing Authority, Donna S. Hay and Thela Billy
CERTIFICATE OF COMPLIANCE
Pursuant to L.R. 7.1(d)(2)(E), I certify that Defendants Chippewa-Cree Housing Authority, Donna S. Hay and Thela Billy’s Brief In Support Of Motion To Dismiss, is double spaced, is a proportionately spaced 14 point typeface, and contains 6,468 words.
BROWNING, KALECZYC, BERRY & HOVEN, P.C.
By: /s/ Evan M.T. Thompson Evan M.T. Thompson
Case 4:14-cv-00073-BMM Document 16 Filed 07/08/15 Page 37 of 39
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CERTIFICATE OF SERVICE I hereby certify that on the 8th day of July, 2015, a true copy of the foregoing was served: Via ECF to the following parties: Mark Mackin Attorney at Law (#8290) 4703 Almosta Road Helena, MT 59602
BROWNING, KALECZYC, BERRY & HOVEN, P.C.
By: /s/ Evan M.T. Thompson Evan M.T. Thompson
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EXHIBIT INDEX
EXHIBIT A: Tribal Court Complaint EXHIBIT B: Motion to Dismiss (May 12, 2009) EXHIBIT C: Plaintiffs’ Response to CCHA’s Motion to Dismiss (June 4, 2009) EXHIBIT D: Order Dismissing Case EXHIBIT E: Appellant’s Brief in Support of Appeal EXHIBIT F: Opinion EXHIBIT G: Order (Oct. 14, 2011) EXHIBIT H: Letter from Business Committee to Mark Mackin (Nov. 28, 2011) EXHIBIT I: Chippewa-Cree Law and Order Code, Title I, Chapter 4, §4.1(1) EXHIBIT J: Chippewa-Cree Law and Order Code, Title I, Chapter 2, § 2.1 EXHIBIT K: Chippewa-Cree Law and Order Code, Title I, Chapter 3, § 3.3 EXHIBIT L: Tribal Ordinance 3-63 EXHIBIT M: Alkire v Standing Rock Housing Authority, File # COMP 11-087, Memorandum Opinion, Order for Judgment, and Judgment of Dismissal (June 30, 2011)
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