NAT. FARMERS U. INS. v. Crow Tribe of Indians of Montana

• Citation: 560 F. Supp. 213
• Decision Date: 26 January 1983
• Docket Number: No. CV 82-230-BLG.,CV 82-230-BLG.
• Parties: NATIONAL FARMERS UNION INSURANCE COMPANIES, a Utah corporation, and Lodge Grass School District No. 27, Plaintiffs, v. CROW TRIBE OF INDIANS OF MONTANA, the Crow Indian Tribal Council, the Tribal Court of the Crow Indian Reservation, Eddie Roundface, Glen Birdinground, Ira Left Hand, Judges of the Tribal Court of the Crow Indian Reservation, Donald Stewart, Chairman of the Crow Indian Tribal Council, and Leroy Sage, a minor, by Flora Not Afraid, his guardian, Defendants.
• Court: U.S. District Court — District of Montana

560 F. Supp. 213

NATIONAL FARMERS UNION INSURANCE COMPANIES, a Utah corporation, and Lodge Grass School District No. 27, Plaintiffs, v. CROW TRIBE OF INDIANS OF MONTANA, the Crow Indian Tribal Council, the Tribal Court of the Crow Indian Reservation, Eddie Roundface, Glen Birdinground, Ira Left Hand, Judges of the Tribal Court of the Crow Indian Reservation, Donald Stewart, Chairman of the Crow Indian Tribal Council, and Leroy Sage, a minor, by Flora Not Afraid, his guardian, Defendants.

No. CV 82-230-BLG.

United States District Court, D. Montana, Billings Division.

January 26, 1983.

Rodney T. Hartman, Herndon, Harper & Munro, Billings, Mont., and James Seykora, Hardin, Mont., for plaintiffs.

Francis Lamebull, Harlem, Mont., Thomas R. Acevedo, Fredericks & Pelcyger, Boulder, Colo., for Crow Tribe defendants.

Clarence T. Belue, Hardin, Mont., for defendant Leroy Sage, a minor, by Flora Not Afraid, his guardian.

MEMORANDUM OPINION

BATTIN, Chief Judge.

This matter is before the Court on plaintiff's application for preliminary injunction and motions to dismiss by the defendants. For the reasons discussed below, this Court has determined that the Crow Tribal Court did not have subject matter jurisdiction over the civil suit that formed the basis for the Crow Tribal Court action that is sought to be enjoined. Because the opinion of the Court is dispositive of the instant case as it concerns this Court, a permanent injunction will issue.

FACTS

On May 27, 1982, Leroy Sage, an enrolled Indian of the Crow Tribe and a minor, was struck by a motorcycle in the Lodge Grass Elementary School parking lot while returning from a school-sponsored activity. The land on which the Lodge Grass School is located, although within the exterior boundaries of the Crow Reservation, is owned by the State, with a mineral reservation held by the Tribe. Crow Allotment Act of 1920 § 16. Leroy Sage suffered a broken leg for which medical bills, presently incurred and estimated future expenses, total $3000. Through his guardian Flora Not Afraid and attorneys, Leroy Sage brought suit against Lodge Grass School District No. 27 in Crow Tribal Court requesting $153,000 in damages ($150,000 pain and suffering, $3000 actual and future medical expenses).

Process was served by Dexter Falls Down on Wesley Falls Down, School Board Chairman for Lodge Grass School District No. 27. For some reason, Wesley Falls Down failed to notify anyone that a suit had been brought for the injuries to Leroy Sage. The principal, secretary and superintendent of the Lodge Grass Elementary School and directors of the Lodge Grass School District No. 27 (excluding, presumably, Mr. Falls Down) had no knowledge of the suit. Because no one notified National Farmers Union Insurance Companies National Farmers, the insurance carrier, no preparation to investigate or defend the claim was made.

According to documents filed with this Court, service of summons and complaint was made by Dexter Falls Down on Wesley Falls Down on September 28, 1982. A default judgment was taken on October 19, 1982, twenty-one days after service was made on Wesley Falls Down. A copy of the default judgment was hand delivered by Wesley Falls Down to the principal of Lodge Grass Elementary School in late October. The insurer of the Lodge Grass School District No. 27, plaintiff in this action, was unaware of the claim and judgment until its local adjuster received from the school principal a copy of the $153,000 judgment on October 29, 1982.

PROCEDURE

On November 3, 1982, plaintiff received a temporary restraining order from this Court restraining Leroy Sage from executing on the default judgment taken October 19, 1982 in Crow Tribal Court. The temporary restraining order expired on November 13, 1982, and was not renewed. A hearing on defendants' motion to dismiss and plaintiffs' request for a preliminary injunction was held on December 14, 1982. On December 29, 1982, this Court issued an order granting plaintiffs a permanent injunction against any execution of the Tribal Court judgment. The rationale for the injunction was that the Crow Tribal Court lacked subject matter jurisdiction over the tort that was the basis of the default judgment.

FEDERAL COURT JURISDICTION

The Crow Tribal Court Tribal Court cannot extend its jurisdiction beyond its legal limits. This Federal District Court has the jurisdictional power under 28 U.S.C. § 1331 to determine whether the Tribal Court has exceeded the lawful limits of its jurisdiction. Section 1331 gives district courts jurisdiction over "civil actions arising under the Constitution, laws, or treaties of the United States." The jurisdictional question raised by plaintiff's verified complaint, paragraph No. 14, places at issue the extent of tribal court civil jurisdiction over non-Indians as developed by the Supreme Court in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981)— developments that are not drawn from any specific statute or treaty, but raise the overriding federal interest in determining the extent of tribal sovereignty and therefore form a part of federal common law. That federal question jurisdiction under 28 U.S.C. § 1331 can be based on federal common law is well settled. See, Illinois v. City of Milwaukee, Wisconsin, 406 U.S. 91, 99-100, 92 S.Ct. 1385, 1390-91, 31 L.Ed.2d 712 (1972).

This Court's acquisition of jurisdiction by way of federal common law to examine the correctness of a tribal court's exercise of civil jurisdiction, is not a novel one. Cardin v. DeLaCruz, 671 F.2d 363 (9th Cir.1982) (Cardin); Swift Transportation, Inc. v. John, 546 F.Supp. 1185 (D.Ariz.1982) (Swift); Babbitt Ford, Inc. v. Navajo Indian Tribe, 519 F.Supp. 418 (D.Ariz.1981). The necessity of a proper forum wherein the extent of tribal court jurisdiction can be determined can hardly be overemphasized.

Plaintiff initially claimed that the manner in which notice was given or not given in the tort claim on which default was taken, was a violation of the Indian Civil Rights Act, 25 U.S.C. § 1302 (ICRA). This Court may be without jurisdiction to determine if the ICRA was complied with by the Tribal Court. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); Trans-Canada Enterprises, Ltd. v. Muckleshoot Indian Tribe, 634 F.2d 474 (9th Cir.1980); R.J. Williams Co. v. Fort Belknap Housing Authority, 509 F.Supp. 933 (D.Mont.1981). But see, Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir.1980). Because the Court finds that the Tribal Court did not have jurisdiction over the tort claim between Leroy Sage and the School district, there is no need to examine this Court's jurisdiction to determine if the ICRA was complied with by the Tribal Court.¹

TRIBAL COURT JURISDICTION

An analysis of Tribal Court jurisdiction must begin with the nature of the parties and the location of the incident. There is no dispute that Lodge Grass School District No. 27 is a non-Indian; indeed, the School District is a subdivision of the sovereign government of the State of Montana. There is no dispute that the alleged tort occurred on school grounds, and that the school grounds are non-Indian land. Crow Allotment Act of 1920, § 16, printed in Kappler, Indian Affairs: Laws and Treaties, Vol. IV, p. 277 (1928).²

Does the Crow Tribal Court have subject matter jurisdiction over the tort claim of Leroy Sage against Montana School District of Lodge Grass No. 27? Here the Tribe seeks jurisdiction over a non-Indian, for events on non-Indian land, although within Reservation boundaries. If the Tribal Court is to have jurisdiction over the tort claim then it has jurisdiction because either: 1) the power has been delegated to the Tribe by Congress through statute, or by the President with advice and consent of the Senate through a treaty, or 2) the power has been retained by the Tribe as an element of inherent sovereignty even after the Tribal nation became a quasi-sovereign within the exterior boundaries of the United States.

A thorough search of the relevant literature has failed to reveal any congressional legislation or treaties delegating civil jurisdiction over non-Indians to the Crow Tribe. The Tribal Court extended its jurisdiction to the tort on the basis of the Crow Tribal Code CTC, § 3-2-205, which states: "The Crow Tribal Court shall have jurisdiction over all civil causes of action arising within the exterior boundaries of the Crow Indian Reservation ...." It is apparent that the breadth of this jurisdictional granting statute is, at least, limited by decisions of the United States Supreme Court. While the Tribe may point to CTC § 3-2-205 as a jurisdictional grant, there is no statutory grant from the United States Congress or treaty that gives the Crow Tribe power to give itself such a broad jurisdictional grant.

The remaining basis on which the Tribe could assert jurisdiction—retained power of inherent sovereignty—was recently dealt with by the United States Supreme Court in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) (Montana). Montana established "that the dependent status of Indian Tribes has implicitly divested the tribes of the power to regulate, in general, `the conduct of non-Indians on land no longer owned by, or held in interest for the tribes'." Cardin at 366 (emphasis in original) (citation omitted).

The general rule, as stated in Montana, in favor of a lack of Tribal jurisdiction over the non-Indian defendant when the contested circumstances occurred on land no longer owned by or held in trust for the Tribe was qualified by Justice Stewart in Montana:

To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on the reservations, even though on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of non-members who enter consensual

...