Bottomly v. Passamaquoddy Tribe, 78-1515

• Decision Date: 17 May 1979
• Docket Number: No. 78-1515,78-1515
• Citation: 599 F.2d 1061
• Parties: John S. BOTTOMLY, Plaintiff, Appellant, v. PASSAMAQUODDY TRIBE et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1061

599 F.2d 1061

John S. BOTTOMLY, Plaintiff, Appellant, v. PASSAMAQUODDY TRIBE et al., Defendants, Appellees.

No. 78-1515.

United States Court of Appeals, First Circuit.

Argued March 13, 1979.

Decided May 17, 1979.

Donald H. Marden, Augusta, Maine, with whom John S. Bottomly, Millis, Maine, was on brief, for appellant.

Edward J. Shawaker, Atty., Dept. of Justice, Washington, D. C., with whom James W. Moorman, Asst. Atty. Gen., and Jacques B. Gelin, Atty., Dept. of Justice, Washington, D. C., were on brief, for the United States, appellee.

Thomas N. Tureen, Calais, Maine, with whom Richard B. Collins, Window Rock, Ariz., was on brief, for Passamaquoddy Tribe, John Stevens and Eugene Francis, appellees.

John M. R. Paterson, Deputy Atty. Gen., Augusta, Maine, with whom David Roseman, Asst. Atty. Gen., Augusta, Maine, was on brief, for the State of Maine, amicus curiae.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE, District Judge. ^*

COFFIN, Chief Judge.

This is a diversity action brought by an attorney against the Passamaquoddy Tribe and three of its former tribal governors to recover on a contingency contract for attorney's fees. After argument on a defense motion to dismiss, the district court found that the Tribe and its officers were protected from suit by the doctrine of sovereign immunity, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); Puyallup Tribe v. Washington Department of Game, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977), and accordingly dismissed for want of jurisdiction. ¹ Appellant contends that the court erred by failing to hold an evidentiary hearing, maintaining that it could not properly have reached its decision without first hearing facts that show the Passamaquoddy Indians to be "a tribe in a legal sense entitled to immunity." Finding no error in the court's disposition of this suit, we affirm the judgment below.

According to appellant's amended complaint, in 1968 he entered into an agreement with one Don C. Gellers, an attorney who purported to represent the Tribe under the terms of a contingency fee contract. Pursuant to the attorneys' agreement, which apparently was approved by the chiefs of the Tribe, appellant was to serve as Massachusetts counsel in the Tribe's claim against the Commonwealth for an accounting on a trust fund. Both he and Gellers sought federal approval of their representation of the Tribe, as mandated by 25 U.S.C. § 81, but it was not forthcoming. ² Nevertheless, appellant allegedly continued to perform legal services for the Tribe until 1971 when he was notified by the Tribe that Gellers, who by that time had been convicted of illegal possession of marijuana, no longer represented it. Claiming that other counsel for the Tribe then allowed the Massachusetts case to be dismissed, appellant brought this suit to recover for the work which he had performed for the Passamaquoddy.

The terms of Gellers' contract with the Tribe, upon which his claim ultimately is grounded, appear expressly to bar appellant's suit as an associated attorney against the Tribe:

"It is agreed that the ATTORNEY (Gellers) . . . may associate with him in work under this contract such attorney or attorneys as he may select: PROVIDED, that neither the Tribe nor the Government is to be at any expense by reason of the aforesaid employment of such associate attorneys, all compensation thereof to be paid by the ATTORNEY out of any compensation which he may receive for his services." (Emphasis added.)

Moreover, appellant's suit, a claim pursuant to a contingency fee agreement, faces the obvious hurdle that neither he nor Gellers was able, for whatever reasons, to bring their representation of the Tribe to a successful resolution either in court or by way of settlement. But while this case thus strikes us as a particularly unlikely vehicle for raising what are complex questions of tribal status and immunity, questions which have pulled both the State of Maine and the United States, no longer parties, into the appellate fray, the merits of the contract claim are not before us. Accordingly we turn to the district court's dismissal on the grounds of tribal sovereign immunity.

I. Tribal Status of the Passamaquoddy Indians

We begin by resolving what this case does not decide, namely, whether or not the Passamaquoddy Indians are a "tribe" as opposed to merely an "ethnic association". ³ The possibility that this threshold question which could have disposed of the issue of tribal immunity from suit, was in issue arose not in the complaint, nor in the amended complaint, but in argument before the district court. The court, ruling from the bench, described the argument and responded as follows:

"At oral argument, (counsel) has argued ingeniously and persuasively that perhaps this Tribe may not be a tribe, and if it is not a tribe, it is something else, and the individual members of the Tribe as members of an association might be subject to suit. The amended complaint, however, quite clearly asserts claims against the Tribe as an entity. The Court suggests that the plaintiff cannot have it both ways and is committed by the allegations of the amended complaint."

The State of Maine, appearing as amicus, contests this aspect of the court's ruling far more vigorously than does the appellant himself, ⁴ describing it as a finding that Congress had recognized the Passamaquoddy Indians as a tribe, a finding for which the court had no foundation. In addition, the state argues that granting defendants' motion to dismiss was "tantamount to permitting the group of Indians known as the Passamaquoddy Tribe" to claim for itself tribal status and all the benefits which that status confers. The state, we believe, misconstrues the court's action. The court made no ruling whatsoever on the Passamaquoddy Indians' tribal status. It merely found that the plaintiff had brought suit against the Tribe as such, rather than individual members of some association of Indians, and that it would not permit plaintiff, who had an opportunity to file and had filed an amended complaint after defendants had filed their motion to dismiss, to recast entirely his lawsuit at oral argument.

The state further contends that the court refused to consider the issue of tribal status simply because the complaint had used the label "tribe" to refer to the Passamaquoddy Indians. Such a refusal indeed would mark a return to the days of common law pleading when form reigned over substance, and a substantial claim could be lost for want of compliance with a technicality. See Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); 5 Wright and Miller, Federal Practice and Procedure §§ 1181-82, 1202 (1969). But we are not faced with such a situation here. As the court correctly noted, the contingency contract for fees between the Tribe and Gellers as well as the agreement between Gellers and appellant clearly were entered into with the Tribe as a tribe. The case into which Gellers and appellant allegedly put their efforts was for an accounting on a trust fund held by Massachusetts for the Tribe as a tribe. There is nothing in these contracts, or in appellant's complaint based upon them, that suggest that the individual Passamaquoddy Indians were parties to those contracts or made the subjects of suit by appellant. The suit therefore was in substance, not merely in form, solely against the Tribe as an entity. While appellant could have sued the Tribe as an entity and its members as individuals, thus having it "both ways", he did not do so. Compare Puyallup Tribe v. Washington Department of Game, supra, 433 U.S. at 168-70, 97 S.Ct. 2616. Although the rules of pleading have been relaxed considerably, they have yet to dispense with what is perhaps the most basic function of the complaint, that of notifying persons that they have been made defendants in a lawsuit. See 5 Wright and Miller, Federal Practice and Procedure § 1202 at 63 (1969). We conclude, as did the court below, that appellant clearly brought suit against the Tribe as an entity, and not as a collection of individuals. The Passamaquoddy Indians' tribal status therefore is to be assumed for purposes of deciding the issue squarely raised by this suit: whether this particular tribe enjoys protection from suit by virtue of sovereign immunity.

II. Tribal Sovereign Immunity

As the Supreme Court, in Santa Clara Pueblo v. Martinez, supra, 436 U.S. at 58, 98 S.Ct. at 1677, recently noted:

"Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Turner v. United States, 248 U.S. 354, 358 (39 S.Ct. 109, 110, 63 L.Ed. 291) (1919); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512-513 (60 S.Ct. 653, 656, 84 L.Ed. 894) (1940); Puyallup Tribe v. Washington Department of Game, 433 U.S. 165, 172-173 (97 S.Ct. 2616, 2620-2621, 53 L.Ed.2d 667) (1977). This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress. But 'without congressional authorization,' the 'Indian Nations are exempt from suit.' United States v. United States Fidelity and Guaranty Co., supra (309 U.S. 506), at 512 (60 S.Ct. 653, 656, 84 L.Ed. 894)."

The district court, applying the doctrine of tribal sovereign immunity, dismissed the suit as to the Tribe and as to its representatives as well, who had been sued not in their individual capacities but as "having acted for and on behalf of the defendant Tribe." Adams v. Murphy, 165 F. 304 (8th Cir. 1908) (attorney barred from suing tribe and its officers to collect attorneys fees).

Appellant, while recognizing the possibility that the Tribe may be immune from suit, argues for what may be termed a sliding scale of sovereignty. Only those tribes which originally enjoyed and still exhibit sufficient indicia of sovereignty, he maintains, may claim the protection of this...