Hardin v. White Mountain Apache Tribe

• Decision Date: 27 December 1985
• Docket Number: 84-2164,Nos. 84-1912,s. 84-1912
• Parties: Baker B. HARDIN, Jr., a single man, Plaintiff-Appellant, v. WHITE MOUNTAIN APACHE TRIBE, the White Mountain Apache Tribal Game and Fish Department, the White Mountain Apache Tribal Courts, the White Mountain Apache Tribal Police Department, Ronnie Lupe, Reno Johnson, Sr., Albert Ranus, Altaha Lafa, West Anderson, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 476

779 F.2d 476

Baker B. HARDIN, Jr., a single man, Plaintiff-Appellant, v. WHITE MOUNTAIN APACHE TRIBE, the White Mountain Apache

Tribal Game and Fish Department, the White Mountain Apache

Tribal Courts, the White Mountain Apache Tribal Police

Department, Ronnie Lupe, Reno Johnson, Sr., Albert Ranus,

Altaha Lafa, West Anderson, et al., Defendants-Appellees.

Nos. 84-1912, 84-2164.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 18, 1985.

Decided Feb. 26, 1985.

Redesignated as Opinion and Ordered Published May 22, 1985.

As Amended Dec. 27, 1985.

Baker Hardin, Jr., J. Mathias Myers, Tucson, Ariz., for plaintiff-appellant.

Robert C. Brauchli, Whiteriver, Ariz., Anthony Cohen, Santa Rosa, Cal., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before MERRILL, FARRIS, and BEEZER, Circuit Judges.

AMENDED OPINION

FARRIS, Circuit Judge:

In No. 84-1912, Hardin appeals from the judgment of the District Court of Arizona, Copple, J. presiding, dismissing his action for failure to state a claim. Hardin's suit in the district court had challenged the decision of the White Mountain Apache tribal courts to exclude him permanently from the Apache reservation, following Hardin's conviction in federal court for concealment of stolen federal property.

In No. 84-2164, a separate action consolidated with No. 84-1912, Hardin appeals the district court's award of attorneys' fees to the defendant Tribe. ¹

Hardin, a ten-year resident on reservation land leased from the Tribe by his parents, was convicted in February 1982 for concealment of solar cell panels and batteries stolen from a federal Observatory on the White Mountain Apache Tribe reservation. In August 1982, the tribal Council passed Ordinance No. 128, providing for the permanent exclusion of nonmembers of the Tribe from reservation land. A month later, the Council passed Resolution No. 82-222, authorizing a petition to the White Mountain Apache Tribal Court to exclude Hardin permanently from the reservation.

Because the tribal constitution requires all ordinances to be approved by the Secretary of the Interior prior to enactment, and Ordinance No. 128 had not yet been approved by the Secretary, the Tribal Court instead ordered Hardin's removal on the basis of an existing provision in the Tribal Code, Ch. VI, Part 1, Secs. 61.1-61.3, providing for temporary removal of nonmembers.

After some procedural difficulty, Hardin appealed the Tribal Court's Order of Removal to the Tribal Appeals Court. On April 4, 1983--four days before the Appeals Court rejected Hardin's appeal--tribal police forcibly removed Hardin from the reservation.

Hardin brought suit in the district court against the Tribe, Tribal Court, Tribal Council, and various officials in their individual capacities, seeking declaratory and injunctive relief and damages on both constitutional and statutory grounds. We have jurisdiction over the timely appeal from a federal question, 28 U.S.C. Sec. 1331, under 28 U.S.C. Secs. 1291 and 1294(1).

I. TRIBAL SOVEREIGN IMMUNITY AND POWERS.

Indian tribes generally enjoy a common law immunity from suit. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940).

The Supreme Court has held that Indian tribes do not have inherent sovereign powers to try and to punish non-Indians for criminal acts. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). On the other hand, the Supreme Court has also acknowledged that Indian tribes retain inherent sovereign power to exercise "some forms of civil jurisdiction over non-Indians on their reservations," Montana v. United States, 450 U.S. 544, 565, 101 S.Ct. 1245, 1258, 67 L.Ed.2d 493 (1981) (emphasis added). Hardin's exclusion falls within the Tribe's civil powers. "[T]he regulation is designed to keep reservation peace and protect the health and safety of tribal members," Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 593 (9th Cir.1983), cert. denied, 466 U.S. 926, 104 S.Ct. 1707, 80 L.Ed.2d 180 (1984), and as such is a permissible and "necessary exercise of tribal self-government and territorial management." Id; see Montana, 450 U.S. at 564, 101 S.Ct. at 1257-58. Although Hardin attempts to characterize his exclusion as punitive in nature, retribution cannot be the goal of an ordinance that is triggered by a nonmember's crimes against an entirely separate external state or federal sovereign. The United States has already imposed its own punishment for the nonmember's crime. The intent of the tribal ordinance is merely to remove a person who "threatens or has some direct effect on the ... health or welfare of the tribe," 450 U.S. at 566, 101 S.Ct. at 1258-59--a permissible civil regulation of the Tribe's internal order.

When a nonmember has entered into a consensual commercial relationship with the Tribe or its members the Tribe retains "inherent power to exercise civil authority over the conduct of [the nonmember] on fee lands within its reservation." Id. at 565-66, 101 S.Ct. at 1258-59. A tribe has power "to place conditions on entry, on continued presence, or on reservation conduct.... A nonmember who enters the jurisdiction of the tribe remains subject to the risk that the tribe will later exercise its sovereign power." Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144-45, 102 S.Ct. 894, 905-06, 71 L.Ed.2d 21 (1982). The ordinance in question is just such a regulation of a nonmember's reservation conduct. See also Babbitt Ford, 710 F.2d at 590 (upholding tribal ordinance that permitted exclusion of nonmember who has wilfully violated automobile repossession regulations).

Under the special circumstances of this case, where a nonmember entered the reservation under color of a lease in which the Tribe had specifically reserved its power of exclusion, and where Hardin had already been convicted under the laws of a separate sovereign, we conclude that the Tribe acted within its civil jurisdiction when it ordered Hardin's removal.

Our result is consistent with the views expressed by all nine Justices in Merrion, the most recent Supreme Court decision in this area, when the Court affirmed an Indian tribe's sovereign power to exclude nonmembers. See 455 U.S. at 144-45, 102 S.Ct. 905-06; id. at 185, 102 S.Ct. at 926 (Stevens, J., dissenting). Although the three dissenters in Merrion would have prohibited the tribe from imposing an oil and gas severance tax because the tribe had failed to give notice of its sovereign power when it originally contracted with the nonmember lessee, in Hardin's case, his parents' lease provisions did include notice that the Tribe might exercise its dormant sovereign power of exclusion. Hence, the logic of both the dissent and the majority opinion in Merrion support the Tribe's exercise of exclusion powers here. See also Babbitt Ford, 710 F.2d at 594.

Finally, the policies underlying both the power to exclude and the deprivation of criminal jurisdiction can only be served by upholding the Tribe's power to exclude Hardin. By permitting the Tribe to exclude those already convicted of a state or federal crime, we leave original jurisdiction in the hands of state or federal authorities. All that remains to the Tribe is the uncomplicated determination of whether or not the nonmember has a criminal record; indeed, as in Hardin's case, the nonmember will frequently admit his prior conviction and the hearing need never proceed to a full-fledged criminal trial. The Tribe's...