Spurr v. Pope

• Decision Date: 26 August 2019
• Docket Number: No. 18-2174,18-2174
• Citation: 936 F.3d 478
• Parties: Joy SPURR, Plaintiff - Appellant, v. Melissa Lopez POPE, Chief Judge of Tribal Court of Nottawaseppi Huron Band of the Potawatomi; Supreme Court for the Nottawaseppi Huron Band of Potawatomi; Nottawaseppi Huron Band of the Potawatomi, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

936 F.3d 478

Joy SPURR, Plaintiff - Appellant,

v.Melissa Lopez POPE, Chief Judge of Tribal Court of Nottawaseppi Huron Band of the Potawatomi; Supreme Court for the Nottawaseppi Huron Band of Potawatomi; Nottawaseppi Huron Band of the Potawatomi, Defendants-Appellees.

No. 18-2174

United States Court of Appeals, Sixth Circuit.

Argued: May 1, 2019

Decided and Filed: August 26, 2019

ARGUED: Stephen J. Spurr, Grosse Pointe Park, Michigan, for Appellant. David A. Giampetroni, KANJI & KATZEN, PLLC, Ann Arbor, Michigan, for Appellees. ON BRIEF: Stephen J. Spurr, Grosse Pointe Park, Michigan, for Appellant. David A. Giampetroni, KANJI & KATZEN, PLLC, Ann Arbor, Michigan, William Brooks, NOTTAWASEPPI HURON BAND OF THE POTAWATOMI, Fulton, Michigan, for Appellees.

Before: DAUGHTREY, COOK, and GRIFFIN, Circuit Judges.

COOK, Circuit Judge.

Most family spats end long before a court gets involved. This one did not, however, and an Indian tribal court eventually issued a protection order against Joy Spurr, the stepmother of a tribal member. But our review involves no probing of the facts, just a pure question of law: Does a tribal court have jurisdiction under federal law to issue a civil personal protection order against a non-Indian and non-tribal member in matters arising in the Indian country of the Indian tribe? Because 18 U.S.C. § 2265(e) unambiguously grants tribal courts that power, and because tribal sovereign immunity requires us to dismiss this suit against two of the named defendants, we AFFIRM the district court’s dismissal of Spurr’s complaint.

I.

Joy Spurr is the stepmother of Nathaniel Spurr, a tribal member of the Nottawaseppi Huron Band of the Potawatomi (NHBP), a federally recognized, sovereign Indian tribe located in Fulton, Michigan. Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 83 Fed. Reg. 34863 (July 23, 2018). In February 2017, Nathaniel sought an ex parte personal protection order (PPO) from the NHBP tribal court, alleging that Spurr engaged in a campaign of harassment against him that included, among many other things, unwanted visits to Nathaniel’s residence on the NHBP reservation and several hundred letters, emails, and phone calls. R. 22-3, PageID 268–81. The tribal court issued the ex parte PPO.

That same month, the tribal court held a hearing to determine whether to make the PPO "permanent"—in other words, to make it last one year. After considering witness testimony, other evidence, and the parties’ arguments, the tribal court issued a permanent PPO against Spurr. This PPO swept broadly, prohibiting Spurr from contacting Nathaniel or "appearing within [his] sight." R. 1-3, PageID 31. The court later denied Spurr’s motion to reconsider or modify that order in a thorough, thirty-six-page opinion. On appeal, the NHBP Supreme Court affirmed, holding that tribal law authorizes the tribal court to issue civil personal protection orders against "a non-Indian who resides outside of the boundaries of Nottawaseppi Huron Band Indian country."

About six months later, Nathaniel again initiated proceedings in tribal court, claiming that Spurr violated the PPO. After holding two hearings (Spurr did not attend the first) where the parties presented evidence and testimony, the tribal court found Spurr "in civil contempt for violating the [PPO], a civil personal protection order." R. 22-4, PageID 283–84. The tribal court mandated that Spurr pay (1) the attorney’s fees incurred by Nathaniel for the hearing where Spurr failed to appear; and (2) $250 to NHBP for the "costs ... associated with holding the hearing." R. 22-4, PageID 284. In lieu of the $250 payment, Spurr could choose to perform twenty-five hours of community service.

After Nathaniel alleged that Spurr violated the PPO—but before either hearing—Spurr went on the offensive. In federal district court, she sued (1) Melissa L. Pope, the Chief Judge of the NHBP Tribal Court (who issued the PPO), (2) the NHBP Supreme Court (that affirmed), and (3) the Band (a sovereign Indian tribe), seeking a declaratory judgment and injunctive relief. In an order denying Spurr’s request for a preliminary injunction, the court limited the parties’ motion-to-dismiss briefing to two issues: sovereign immunity and subject-matter jurisdiction. In its joint motion to dismiss, the Tribal defendants argued that Spurr’s claims against the Band and the NHBP Supreme Court were barred by sovereign immunity and should be dismissed under Federal Rule of Civil Procedure 12(b)(1). R. 30, PageID 354.

The district court held that, under 28 U.S.C. § 1331, it had federal question jurisdiction to review Spurr’s claim that the tribal court "lacked jurisdiction to issue the PPO as a matter of federal law." R. 33, PageID 396–98. But the court ultimately found that 18 U.S.C. § 2265 established the tribal court’s jurisdiction and dismissed under Rule 12(b)(6) Spurr’s jurisdictional challenge without addressing the sovereign immunity issue. Spurr appealed.¹

II.

We review de novo a motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6). Winget v. JP Morgan Chase Bank, N.A. , 537 F.3d 565, 572 (6th Cir. 2008) ; Hedgepeth v. Tennessee , 215 F.3d 608, 611 (6th Cir. 2000). "When [a] defendant challenges subject matter jurisdiction through a motion to dismiss, the plaintiff bears the burden of establishing jurisdiction." Angel v. Kentucky , 314 F.3d 262, 264 (6th Cir. 2002) (citation omitted). We must consider the Rule 12(b)(1) challenge first; if this court lacks subject matter jurisdiction, the Rule 12(b)(6) motion becomes moot. See Moir v. Greater Cleveland Reg’l Transit Auth. , 895 F.2d 266, 269 (6th Cir. 1990) ; Bell v. Hood , 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

III.

Spurr’s briefs present a cornucopia of grievances—some reference the Constitution, others the emotional and financial burden of this litigation. But as her opening brief posits, this case involves "a single issue of law": Did the NHBP tribal court have jurisdiction under federal law to issue this personal protection order against her, a non-Indian and non-tribal member? After first resolving the threshold issue of tribal sovereign immunity, we hold that it did.

A. Tribal Sovereign Immunity

The district court determined that it had federal question jurisdiction over the claims raised, so it needn’t address the issue of tribal sovereign immunity. But tribal sovereign immunity is a jurisdictional doctrine. That means we must address it—and must do so first. If it shields the tribe, we have the power to say that (and only that) and to dismiss the claim for lack of subject-matter jurisdiction. Memphis Biofuels, LLC v. Chickasaw Nation Indus., Inc. , 585 F.3d 917, 919–20 (6th Cir. 2009) ("[I]f [the tribe] enjoys tribal-sovereign immunity, we need not address the issues of diversity jurisdiction and federal-question jurisdiction."). The Band explicitly waived sovereign immunity on appeal as to Chief Judge Pope, but asserts that sovereign immunity deprives us of jurisdiction to consider the claims against the other two tribal defendants. We agree. Tribal sovereign immunity bars this suit against the Band and the NHBP Supreme Court. See Michigan v. Bay Mills Indian Cmty. , 572 U.S. 782, 790–91, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014).

"Indian tribes are ‘domestic dependent nations’ that exercise ‘inherent sovereign authority.’ " Id. at 788, 134 S.Ct. 2024 (citations omitted). That sovereignty includes "common-law immunity from suit traditionally enjoyed by sovereign powers." Id. (quoting Santa Clara Pueblo v. Martinez , 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) ). It shields not only an Indian tribe itself, but also "arms of the tribe" acting on its behalf. Memphis Biofuels , 585 F.3d at 921 ; Kiowa Tribe of Okla. v. Mfg. Techs., Inc. , 523 U.S. 751, 754–55, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) (recognizing that the Court has not "yet drawn a distinction between governmental and commercial activities of a tribe"). As the Supreme Court recently reminded us, the baseline rule "is tribal immunity." Bay Mills , 572 U.S. at 790, 134 S.Ct. 2024.

But the Constitution grants Congress plenary control over tribes, and thus the power to abrogate tribal sovereign immunity. Id. ; United States v. Lara , 541 U.S. 193, 200, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004). To do so, "Congress must ‘unequivocally’ express that purpose." C & L Enters., Inc. v. Citizen Band Potawatomi Tribe of Okla. , 532 U.S. 411, 418, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001) (quoting Santa Clara Pueblo , 436 U.S. at 58, 98 S.Ct. 1670 ); Bay Mills , 572 U.S. at 790, 134 S.Ct. 2024. Indeed, Indian tribes remain separate sovereigns that pre-existed the Constitution, and "courts will not lightly assume that Congress in fact intends to undermine Indian self-government." Bay Mills , 572 U.S. at 790, 134 S.Ct. 2024. "Thus, unless and ‘until Congress acts, the tribes retain’ their historic sovereign authority." Id. at 788, 134 S.Ct. 2024 (quoting United States v. Wheeler , 435 U.S. 313, 323, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) ).

To support her view that Congress unequivocally expressed the purpose to subject the Band to this suit, Spurr points to 28 U.S.C. § 1331. That statute reads: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Spurr reasons that by granting district courts the authority to hear such actions, Congress authorized suits against an Indian tribal court exercising federally-derived authority. But § 1331 ’s text fails to abrogate tribal sovereign immunity. To upset the baseline rule of tribal immunity, the statute’s text "must ‘unequivocally’ express that purpose"—shout it, not whisper it. Bay Mills , 572 U.S. at 790, 134 S.Ct. 2024 (citation omitted). Yet § 1331 never hints at jurisdiction over suits against separate nations, the status recognized tribes hold. Conn. Nat’l Bank v. Germain , 503...