Amerind Risk Management Corp. v. Malaterre

CourtUnited States District Courts. 8th Circuit. United States District Court of North Dakota
Citation585 F.Supp.2d 1121
Docket NumberCase No. 4:07-cv-059.
PartiesAMERIND RISK MANAGEMENT CORPORATION, Plaintiff, v. Myrna MALATERRE, Carol Belgarde, and Lonnie Thompson, Defendants.
Decision Date14 November 2008

Earl Mettler, Leander Bergen, Bergen Law Offices, LLC, Albuquerque, NM, Gary R. Thune, Jonathan P. Sanstead, Pearce & Durick, Bismarck, ND, for Plaintiff.

Thomas A. Dickson, Jodi Lynn Colling, Dickson Law Office, Bismarck, ND, Daniel J. Dunn, Maring Williams Law Office, P.C., Fargo, ND, for Defendants.



Before the Court is the Plaintiff's motion for summary judgment filed on June 24, 2008. See Docket No. 17. The Defendants filed a response in opposition to the motion on August 29, 2008. See Docket No. 25. The Plaintiff filed a reply brief on September 11, 2008. See Docket No. 29. For the reasons set forth below, the Plaintiff s motion for summary judgment is denied and summary judgment is granted in favor of the Defendants.


The plaintiff, Amerind Risk Management Corporation (Amerind), administers a federally-regulated insurance risk pool. See Docket No. 20. Amerind is chartered under federal law for the purpose of providing insurance coverage for federally subsidized Indian housing owned and operated by Indian tribes and their housing authorities. See Docket No. 20. On December 28, 2001, the Turtle Mountain Housing Authority entered into a "Certificate of Coverage" contractual agreement with Amerind to provide insurance coverage to the Turtle Mountain Housing Authority for property damage and personal injury. See Docket No. 20-4. The defendants, Myrna Malaterre, Carol Belgarde, and Lonnie Thompson are enrolled members of the Turtle Mountain Band of Chippewa Indians. See Docket No. 1.

On October 19, 2002, Stacey Bruce, Ruth Poitra, and Lonnie Thompson were guests in a house located on the Turtle Mountain Indian Reservation that was leased from the Turtle Mountain Housing Authority. See Docket Nos. 1 and 25. On that date, a fire destroyed the house, killed Stacey Bruce and Ruth Poitra, and seriously injured Lonnie Thompson. See Docket No. 25. At the time of the fire, the Turtle Mountain Housing Authority was insured by Amerind under the "Certificate of Coverage" agreement and a "Membership Subscription Agreement." See Docket Nos. 20-3 and 20-4.

On January 23, 2003, Myrna Malaterre, the mother of decedent Stacey Bruce; Carol Belgarde, the mother of decedent Ruth Poitra; and Lonnie Thompson filed a wrongful death and personal injury action against the Turtle Mountain Housing Authority in Turtle Mountain Tribal Court (Tribal Court).1 See Docket Nos. 25 and 25-2. On September 5, 2003, the complaint was amended to include Amerind as a defendant. See Docket No. 25-10. On July 1, 2004, Malaterre, Belgarde, and Thompson filed a declaratory judgment action against Amerind in federal court, seeking a determination that the insurance policy issued by Amerind provided coverage for the claims. See Docket No. 25-18. On December 8, 2004, Amerind filed a motion to dismiss the action in federal court contending that dismissal was appropriate under the tribal exhaustion doctrine and on the basis of sovereign immunity. On June 20, 2005, this Court granted the motion to dismiss without prejudice, finding that tribal court remedies had to be exhausted before the Court could become involved in the dispute. See Malaterre v. Amerind Risk Management, 373 F.Supp.2d 980 (D.N.D.2005).

On October 20, 2005, the Tribal Court dismissed the Turtle Mountain Housing Authority pursuant to a stipulation. See Docket Nos. 25-27 and 25-28. On November 10, 2005, Amerind filed a motion to dismiss the action in Tribal Court contending that the Turtle Mountain Housing Authority was an indispensable party and, therefore, a direct action could not be maintained against Amerind. See Docket No. 25-29. On December 15, 2005, the Tribal Court denied Amerind's motion to dismiss and found that "[b]y contract and by its actions, Amerind has assumed control over the defense of this matter." See Docket Nos. 25-31. Amerind appealed the Tribal Court's decision to the Turtle Mountain Tribal Court of Appeals. See Docket No. 25-32. On July 5, 2007, the Tribal Court of Appeals affirmed the lower court's ruling. See Docket No. 25-36.

Amerind then commenced a declaratory judgment action in federal court on September 4, 2007. See Docket No. 1. Amerind seeks "a determination that an Indian tribe exceeds its regulatory and adjudicatory jurisdiction when it exercises authority over a non-member that is a federal corporation comprehensively regulated by federal law." See Docket No. 1. Amerind requests that this Court declare that Amerind is not subject to a direct action and further requests that the Court enjoin the Defendants from proceeding with a civil action in tribal court against Amerind. See Docket No. 1. On June 24, 2008, Amerind filed a motion for summary judgment. See Docket No. 17.


The Plaintiff seeks declaratory relief under the Declaratory Judgment Act codified at 28 U.S.C. § 2201. "Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants." Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). To that end, the Act specifically provides that a court "may declare the rights and other legal relations of any interested party seeking such declaration ...." 28 U.S.C. § 2201(a) (emphasis added). The Act has been "repeatedly characterized" by the United States Supreme Court as "an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant." Wilton, 515 U.S. at 287, 115 S.Ct. 2137 (citations omitted). As stated by the United States Supreme Court, "[b]y the Declaratory Judgment Act, Congress sought to place a remedial arrow in the district court's quiver; it created an opportunity, rather than a duty, to grant a new form of relief to qualifying litigants." Id. at 288, 115 S.Ct. 2137. Ultimately, "the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power." Id. at 287, 115 S.Ct. 2137. Any willingness to entertain such relief in this case would yield to the applicability of the tribal exhaustion doctrine. See Gaming World Int'l, Ltd. v. White Earth Band of Chippewa Indians, 317 F.3d 840, 849 (8th Cir.2003) ("The issue of tribal exhaustion is a threshold one because it determines the appropriate forum.").2


Pursuant to 28 U.S.C. § 1331, this Court is empowered to determine whether a tribal court has exceeded the lawful limits of its jurisdiction. Nat'l Farmers Union Ins. Companies v. Crow Tribe of Indians, 471 U.S. 845, 853, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985). "The question of whether an Indian tribe retains the power to compel a non-Indian property owner to submit to the civil jurisdiction of a tribal court is one that must be answered by reference to federal law and is a `federal question' under § 1331." Id. at 852, 105 S.Ct. 2447.

For nearly two centuries, courts of the United States "have recognized Indian tribes as `distinct, independent political communities,' qualified to exercise many of the powers and prerogatives of self-government." Plains Commerce Bank v. Long Family Land and Cattle Co., ___ U.S. ___, 128 S.Ct. 2709, 2718, 171 L.Ed.2d 457 (2008) (citing Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483 (1832); United States v. Wheeler, 435 U.S. 313, 322-23, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978)). Indian tribes possess attributes of sovereignty to govern their members and their territory. United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). "[T]hey are `a separate people' possessing the power of regulating their internal and social relations ....'" Id. (quoting United States v. Kagama, 118 U.S. 375, 381-82, 6 S.Ct. 1109, 30 L.Ed. 228 (1886); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 173, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973)). An essential attribute of that sovereignty is the power to hear and adjudicate disputes arising on reservation land. Weeks Constr., Inc. v. Oglala Sioux Hons. Auth., 797 F.2d 668, 673 (8th Cir.1986). Civil jurisdiction over activities arising on reservation lands "presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute. `Because [a tribe] retains all inherent attributes of sovereignty that have not been divested by the Federal Government, the proper inference from [Congressional] silence ... is that the sovereign power ... remains intact.'" Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) (quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 149 n. 14, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982)).

An analysis of the Tribal Court's jurisdiction starts with the United States Supreme Court's decision in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), 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). The Supreme Court in Montana specifically addressed the reach of tribal jurisdiction over non-Indian parties. In Montana, the Supreme Court announced the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of non-members of the tribe. However, Indian tribes retain sovereignty over nonmembers in two specific instances:

To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians...

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