Big Horn Cnty. Elec. Coop., Inc. v. Man
| Decision Date | 26 February 2021 |
| Docket Number | CV 17-65-BLG-SPW |
| Citation | 526 F.Supp.3d 756 |
| Parties | BIG HORN COUNTY ELECTRIC COOPERATIVE, INC., Plaintiff, v. Alden BIG MAN, et al., Defendants. |
| Court | U.S. District Court — District of Montana |
James E. Torske, Torske Law Office, Hardin, MT, for Plaintiff.
Joseph E. Hardgrave, Kathryn R. Seaton, Montana Legal Services Association, Helena, MT, Michael G. Black, Beck, Amsden & Stalpes, PLLC, Bozeman, MT, for Defendant Alden Big Man.
Melody L. McCoy, Pro Hac Vice, Native American Rights Fund, Boulder, CO, Wesley J. Furlong, Native American Rights Fund, Anchorage, AK, for Defendants Unknown Members of the Crow Tribal Health Board, Hon. Chief Justice Kenneth Pitt, Hon. Judge Dennis Bear Don't Walk, Hon. Judge Michelle Wilson.
SUSAN P. WATTERS, United States District Judge Before the Court are U.S. Magistrate Judge Cavan's Findings and Recommendations (Doc. 129) on the parties’ cross-motions for summary judgment. (Doc. 83, 84, 87). Plaintiff Big Horn County Electric Cooperative ("BHCEC") filed this action against Big Man and several Judges and Justices of the Crow Tribal Courts and Unknown Members of the Crow Tribal Health Board ("Tribal Defendants") seeking declaratory and injunctive relief in response to a civil action Big Man brought against BHCEC in Crow Tribal Court. (See Doc. 1-2). Big Man sued BHCEC in Tribal Court for terminating his electrical service in January 2012, alleging that BHCEC's actions violated Title 20 of the Crow Law and Order Code, which bars winter termination of electrical service except with notice and approval by the Tribal Health Board. (Doc. 1-2). Judge Cavan recommended that BHCEC's motion for summary judgment be denied, Tribal Defendant's motion for summary judgment be granted, and Big Man's motion for summary judgment on the issue of whether his membership agreement waived the Crow Tribe's power to regulate BHCEC be granted.
BHCEC timely objected. (Doc. 132). BHCEC makes eight objections, falling into three buckets. BHCEC objects to Magistrate Judge Cavan's findings that the land at issue, Big Man's homesite, is tribal trust land and subject to tribal jurisdiction, and that, even if the land was alienated to non-tribal members, both of the Montana exceptions allow the Tribe to exercise jurisdiction. (Doc. 133). Big Man and Tribal Defendants filed responses to BHCEC's objections. (Doc. 135 and 136). The Court will address each area of objection in turn after summarizing the applicable factual and legal background. For the reasons stated hereafter, Judge Cavan's Findings and Recommendations are adopted in full.
1 The parties are entitled to de novo review of those findings or recommendations to which they object. 28 U.S.C. § 636(b)(1). When neither party objects, this Court reviews the Magistrate's Findings and Recommendation for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
The Crow Reservation was established in 1886 by the Second Treaty of Fort Laramie and was set apart for the absolute and undisturbed use and occupation by the Crow Tribe. Montana v. United States, 450 U.S. 544, 548, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). Congress subsequently reduced the size of the reservation to 2.3 million acres. Id. Under the General Allotment Act of 1887 and the Crow Allotment Act of 1920, Congress authorized certain divisions and conversions of tribal land into fee and then, eventually, alienation of Reservation land to non-Indians. Id. This created a patchwork of ownership, with portions of the Reservation owned by the federal government in trust for the Tribe and its members, as well as fee land owned by tribal members and non-tribal members. Big Horn County Elec. Co-op. v. Adams, 219 F.3d 944, 948 (9th Cir. 2000).
BHCEC provides electrical service to Southeastern Montana and Northern Wyoming and has been judicially-recognized as the primary provider of electrical services on the Crow Reservation. (Doc. 101 at 1); Adams, 219 F.3d at 948. In 2000, the Tribe and its members made up approximately half of BHCEC's membership. Id. Big Man was one such member. (Doc. 101 at 2). Big Man, an enrolled member of the Crow Tribe, lives on trust land leased to him by the Tribe. (Doc. 116 at 1). He signed up for electrical service to his residence in 1999, and, when he joined BHCEC, he signed a BHCEC Application for Membership and for Electrical Service, which contained a choice of law provision. (Doc. 1-6; 101 at 1).
On January 11, 2012, BHCEC notified Big Man that his account was delinquent, and that it would terminate service if non-payment continued. (Doc. 101 at 6-7). Big Man did not pay and BHCEC disconnected Big Man's service on January 26, 2012. (Doc. 101 at 7). Big Man sued BHCEC in Crow Tribal Court alleging that BHCEC's termination violated Title 20, Chapter 1 of the Crow Law and Order Code, which provides that "no termination of residential service shall occur between November 1 and April 1 without specific prior approval of the Crow Tribal Health Board." (Doc. 1-2). Initially, the Crow Trial Court dismissed the action based on lack of jurisdiction, but the Crow Court of Appeals held that the Tribal Courts had jurisdiction and remanded the case. (Doc. 1-4; 1-5; 1-7). BHCEC then filed this suit seeking declaratory and injunctive relief. (Doc. 1).
BHCEC asserts that the Crow Tribal Court lacks jurisdiction over BHCEC as relating to Big Man's suit. Each party moved for summary judgment on the undisputed material facts. (Doc. 83, 84, 87). Judge Cavan found that Defendants were entitled to summary judgment on both the Tribe's jurisdiction to regulate and adjudicate BHCEC's conduct as it relates to Big Man as well as on the issue of the enforceability of BHCEC's choice of law provision in its membership agreement.
23 The primary question governing each of BHCEC's objections is whether the Crow Tribe has legislative and adjudicative authority over BHCEC, a non-Indian entity, and its conduct on Big Man's land. If the Tribe has retained the right to exclude, then it may regulate BHCEC's conduct. If the Tribe has been divested of its right to exclude BHCEC on Big Man's land, then it may only regulate BHCEC under the narrow Montana exceptions. The first exception applies to the activities of non-members who enter consensual relationships with the Tribe. Montana, 450 U.S. at 565, 101 S.Ct. 1245. However, the dispute between the non-member and the Tribe must have a nexus with that consensual relationship. The second exception applies where a tribe maintains jurisdiction over a non-member's conduct because that conduct has a direct effect or poses a threat to the political integrity, economic security, or health and welfare of the tribe. Montana, 450 U.S. at 566, 101 S.Ct. 1245.
456 Inherent sovereign tribal powers, such as the ability to exercise regulatory and adjudicative jurisdiction, do not typically extend to non-members of the tribe. Montana, 450 U.S. at 565, 101 S.Ct. 1245. This prohibition on tribal regulation is strongest when that non-member's activity occurs on fee simple land (as opposed to land held in trust) owned by non-Indians.
Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 328, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008) ; see also Strate v. A-1 Contractors, 520 U.S. 438, 446, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997). Determining the status of the land at issue is key; if the land has not been alienated (that is, if a tribe has retained the right to exclude), then the tribe retains "considerable control" over non-member conduct on tribal lands. Strate, 520 U.S. at 454, 117 S.Ct. 1404.
789 To determine whether land has been alienated from tribal control, the first step is to look to the fee-status of the land. Adams, 219 F.3d at 949. If the land is held in fee simple by non-members, the land has been alienated and the tribe has lost the right to exclude. Montana, 450 U.S. at 562, 101 S.Ct. 1245. If the land is still held by the tribe in trust, the court must determine whether the property should be considered the equivalent of non-Indian fee land, looking to whether the tribe has retained "dominion and control" over the land. Adams, 219 F.3d at 950. Rights-of-way created through grants of Congress and with the consent of the tribe generally are considered equivalent to non-Indian fee land; even where the land is not open to the public nor under state control, under Strate and its 9th Circuit progeny, the grant of the right-of-way and the corresponding loss of control divests the tribe of legislative and adjudicative authority. 520 U.S. at 454-56, 117 S.Ct. 1404 ; see Burlington Northern R. Co. v. Red Wolf, 196 F.3d 1059, 1063 (9th Cir. 1999), and Adams, 219 F.3d at 950. In Adams, the 9th Circuit determined that BHCEC's rights-of-way for transmission and distribution systems were effectively non-Indian land for jurisdictional purposes. 219 F.3d at 950.
10 Where tribes possess authority to regulate the activities of non-members, civil jurisdiction presumptively lies in tribal courts unless affirmatively limited by a specific treaty section or federal statute. Strate, 520 U.S. at 453, 117 S.Ct. 1404.
11 Judge Cavan determined, relying on Bureau of Indian Affairs ("BIA") documents, including the Title Status Report, that Big Man's homesite is designated tribal trust land owned by the Crow Tribe and held in trust by the United States. (Doc. 129 at 10). From that determination, Judge Cavan found that, unless abrogated by a treaty provision or federal statute, the Tribe may regulate non-member conduct on the land. Judge Cavan rejected BHCEC's argument that the Tribe's authority was divested by the General Allotment Act of 1887, the Crow Allotment Act of 1920, or the Tribe's prior designation of the land for public purposes because those acts are insufficiently explicit to...
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