Smith v. Salish Kootenai College, 03-35306.

• Decision Date: 10 January 2006
• Docket Number: No. 03-35306.,03-35306.
• Citation: 434 F.3d 1127
• Parties: James R. SMITH, Plaintiff-Appellant, v. SALISH KOOTENAI COLLEGE; Court of Appeals of the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1127

434 F.3d 1127

James R. SMITH, Plaintiff-Appellant, v. SALISH KOOTENAI COLLEGE; Court of Appeals of the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Defendants-Appellees.

No. 03-35306.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc June 23, 2005.

Filed January 10, 2006.

Rex Palmer, Attorneys Inc., P.C., Missoula, MT, for the plaintiff-appellant.

Robert J. Phillips, Phillips & Bohyer, P.C., Missoula, MT, for defendant-appellee Salish Kootenai College; John T. Harrison, Legal Department, Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation, Pablo, MT, for defendant-appellee Court of Appeals of the Confederated Salish and Kootenai Tribes of the Flathead Reservation.

Mary L. Smith, Washington, D.C., for amicus curiae National Congress of American Indians.

Appeal from the United States District Court for the District of Montana; Leif B. Erickson, Magistrate Judge, Presiding. D.C. No. CV-02-00055-LBE.

Before SCHROEDER, Chief Judge, RYMER, HAWKINS, SILVERMAN, GRABER, GOULD, PAEZ, BERZON, CLIFTON, BYBEE, and CALLAHAN, Circuit Judges.

BYBEE, Circuit Judge.

The question presented in this case is whether a non-Indian plaintiff consents to the civil jurisdiction of a tribal court by filing claims against an Indian defendant arising out of activities within the reservation where the defendant is located. Appellant James Smith, who is not a member of the Confederated Salish and Kootenai Tribes ("the Tribes") of the Flathead Reservation, filed a claim in tribal court against Salish and Kootenai College ("SKC") arising out of an automobile accident. After a jury returned a verdict in favor of SKC, Smith sought an injunction in federal court, alleging that the tribal court lacked subject matter jurisdiction. The tribal courts had previously held that they had jurisdiction to adjudicate the case, and the district court agreed and denied the injunction. Concluding that Smith's suit is within the first exception of Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), and the rule in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), we affirm.

I. FACTS AND PROCEDURAL HISTORY

Salish and Kootenai College was established by the Confederated Salish and Kootenai Tribes of the Flathead Reservation in Montana. Its mission is "to provide quality postsecondary educational opportunities for Native Americans" and "to promote and help maintain the cultures of the Confederated Tribes of the Flathead Indian Nation." Mission Statement, http://www.skc.edu/ (last visited Oct. 17, 2005). SKC is located on tribal land in Pablo, Montana, where it reports 56 full-time instructors, 28 part-time instructors, and more than 1100 students. More than three-quarters of SKC's students are affiliated with an Indian tribe; more than one-third of these are affiliated with the Confederated Salish and Kootenai. The Tribes incorporated SKC under tribal law in 1977, and a year later SKC was incorporated under state law. Under its articles of incorporation, SKC may sue and be sued in its corporate name in the tribal courts. Its bylaws stipulate that each of the seven members of the Board of Directors must be an enrolled member of the Confederated Salish and Kootenai Tribes. The Tribal Council appoints the members of the Board and may remove them. SKC admits nonmembers of the Tribes.

Smith was enrolled as a student at SKC, although he is a member of the Umatilla Tribe and not of the Confederated Salish and Kootenai Tribes. As part of a course in which he was enrolled, Smith was driving a dump truck, owned by SKC, on U.S. Highway 93 within the Flathead Reservation. Two fellow students were passengers in the truck. Allegedly, the right rear main leaf spring broke, causing the truck to veer sharply and roll over. One passenger, Shad Eugene Burland, was killed, and Smith and a second passenger, James Finley, were seriously injured. Both Burland and Finley were enrolled members of the Confederated Salish and Kootenai Tribes.

The procedural history that culminates in this appeal is complex. Burland's estate filed a wrongful death action in tribal court against SKC and Smith. SKC filed a cross-claim against Smith. Finley then filed suit against SKC and Smith, and Smith filed his own cross-claim against SKC. The tribal court consolidated the cases, and all claims were settled except Smith's cross-claim against SKC. Rather than withdrawing his cross-claim and filing in another court, Smith elected to litigate the claim fully in tribal court. The tribal court realigned the parties, naming Smith as the plaintiff and SKC as the defendant. The claims went to a jury, which returned a verdict in favor of SKC.

Following the unfavorable verdict, Smith argued for the first time that the tribal court did not have subject matter jurisdiction. He first sought post-judgment relief in tribal court. At the same time, he filed an appeal of the judgment with the tribal appeals court, which remanded to the tribal trial court to determine jurisdiction. The tribal court determined that it had jurisdiction, and Smith again filed an appeal with the tribal appeals court. While his second tribal-court appeal was pending, Smith filed a motion for an injunction in federal district court on the ground of lack of jurisdiction, and sought to file his cross-claim as an original complaint in that court.

Before the federal district court ruled on the injunction, the tribal appellate court issued an opinion affirming the tribal court's jurisdictional ruling. The federal district court then issued its order finding that the tribal court had jurisdiction and denying the injunction. Smith appealed the judgment of the district court. A panel of our court reversed on the ground that the tribal court lacked jurisdiction over Smith's claims. Smith v. Salish Kootenai Coll., 378 F.3d 1048 (9th Cir.2004). We vacated that opinion and granted en banc review. 407 F.3d 1267 (9th Cir.2005).

II. STANDARD OF REVIEW

The question of tribal court jurisdiction is a federal question of law, which we review de novo. Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 852-53, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985); FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311, 1314 (9th Cir.1990). We review findings of fact for clear error. Id. at 1313.

III. ANALYSIS

A

Sixteen years ago, we observed that "[t]here is no simple test for determining whether tribal court jurisdiction exists." Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1228 (9th Cir.1989). The statement is no less true today. We recently noted that questions of jurisdiction over Indians and Indian country remain a "`complex patchwork of federal, state, and tribal law,' which is better explained by history than by logic." United States v. Bruce, 394 F.3d 1215, 1218 (9th Cir.2005) (quoting Duro v. Reina, 495 U.S. 676, 680 n. 1, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990)).

Our analysis of the tribal court's jurisdiction starts with the Supreme Court's decision in Montana, a "pathmarking case concerning tribal civil authority over nonmembers." Strate v. A-1 Contractors, 520 U.S. 438, 445, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997); see County of Lewis v. Allen, 163 F.3d 509, 513 (9th Cir.1998) (en banc). In Montana, the Court found that tribal courts have two bases for their authority. First, tribes possess inherent power "necessary to protect tribal self-government [and] to control internal relations." Montana, 450 U.S. at 564, 101 S.Ct. 1245. This includes the inherent power "to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members." Id. Second, tribes possess such additional authority as Congress may expressly delegate. Strate, 520 U.S. at 445, 117 S.Ct. 1404; Montana, 450 U.S. at 564, 101 S.Ct. 1245. As no party contends that Congress has expressly granted the Confederated Salish and Kootenai Tribes the authority to hear this suit, we will consider only whether the Tribes have such inherent authority. See United States v. Lara, 541 U.S. 193, 210, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004).

"Indian tribes have long been recognized as sovereign entities, `possessing attributes of sovereignty over both their members and their territory.'" Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 591 (9th Cir.1983) (quoting United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) (quoting United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975))). The basis for tribal jurisdiction is the tribes' inherent need to define the terms for enrollment, to determine the continuing status of their members, and to regulate relations among their members. Strate, 520 U.S. at 459, 117 S.Ct. 1404; Montana, 450 U.S. at 563-64, 101 S.Ct. 1245. Owing to their historical status as "dependent sovereign[s]" within the United States, the tribes hold territory reserved by the United States for the tribes as their principal physical asset. Lara, 541 U.S. at 229, 124 S.Ct. 1628 (Souter, J., dissenting). The tribes retain legislative and adjudicative jurisdiction to provide for disposition of reserved lands and to regulate activities on those lands.

In general, "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." Montana, 450 U.S. at 565, 101 S.Ct. 1245. This principle is "subject to two exceptions: The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe's political integrity, economic security, health, or welfare." Strate, 520 U.S. at 446, 117 S.Ct. 1404. The Court first identified these two exceptions in Montana. There, it explained that

Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over...