Bradley v. Crow Tribe of Indians

• Decision Date: 15 April 2003
• Docket Number: No. 02-474.,02-474.
• Citation: 67 P.3d 306,315 Mont. 75,2003 MT 82
• Parties: Sarah BRADLEY, Personal Representative for the Estate of Stephen E. Bradley, d/b/a Native American Indian Design, Plaintiff and Appellant, v. CROW TRIBE OF INDIANS, Defendant and Respondent.
• Court: Montana Supreme Court

67 P.3d 306

2003 MT 82

315 Mont. 75

Sarah BRADLEY, Personal Representative for the Estate of Stephen E. Bradley, d/b/a Native American Indian Design, Plaintiff and Appellant, v. CROW TRIBE OF INDIANS, Defendant and Respondent.

No. 02-474.

Supreme Court of Montana.

Submitted on Briefs February 6, 2003.

Decided April 15, 2003.

Thomas E. Towe, Towe, Ball, Enright, Mackey & Sommerfeld, P.L.L.P., Billings, Montana, For Appellant.

Steven B. Bolstad, Keith A. Molyneaux, Elk River Law Office, P.L.L.P., Billings, Montana, For Respondent.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 The Plaintiff, Stephen Bradley, brought this action for breach of contract by the Defendant, Crow Tribe of Indians, in the District Court for the Thirteenth Judicial District in Yellowstone County. The District Court dismissed Bradley's complaint based on sovereign immunity. Bradley appeals from the District Court's order dismissing the complaint. We reverse and remand for further proceedings.

¶ 2 The issue on appeal is whether the District Court erred when it dismissed Bradley's claim based on its conclusion that the Tribe had not unequivocally waived its immunity from suit in state court.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 In 1994, Stephen Bradley, a member of the Crow Tribe, assisted the Tribe in the formation of a corporation to develop a coal power plant and obtain federal funding for its construction. The Tribe passed Resolution No. 95-02 on October 8, 1994, which authorized the project and permitted the Chairperson of the Tribe and other designated officers to negotiate contracts on behalf of the power plant project. Bradley alleges that on or about November 15, 1994, he entered into a seven-year service contract with the Tribe, by which he agreed to provide consulting services and act as program director for the planning and construction of a power plant on tribal property and the Tribe agreed to pay him for his services. Bradley signed and submitted a copy of the contract drafted by him to the Tribe for signature. The written contract includes a provision that states:

11. MONTANA LAW AND VENUE

The parties agree that any action at law, suit in equity, or judicial proceeding for the enforcement of this AGREEMENT or any provision thereof shall be instituted only in the courts of the STATE OF MONTANA, and it is mutually agreed that this AGREEMENT shall be governed by the laws of the STATE OF MONTANA, both as to interpretation and performance. [Emphasis in original.]

Clara Nomee, who was the Chairperson of the Tribe at that time, recalled signing the contract, but neither party has a copy of a contract signed by Nomee or any other authorized representative of the Tribe.

¶ 4 From 1994 until 2000, Bradley provided his consulting services for the Tribe. In 1998, however, the Tribe became aware of impropriety by officials in the Tribal Government and, as a result of a criminal investigation, Nomee was convicted of embezzlement in federal court on September 16, 1998, and was removed from her position as Chairperson of the Tribe. On July 8, 2000, the Tribe passed Resolution No.2000-30, that addressed prior acts of Nomee's alleged misconduct, including her conduct involving the power plant project. The resolution concluded that Nomee:

[O]perated in an improper, illegal, unethical manner, in violation of the laws of the Crow Tribe by using Resolution 90-35, which is unconstitutional on its face, when Nome[e] and her administration failed to comply with the provision contained in Resolution 90-35, requiring that all decisions made by Nomee or her administration between Tribal Council meetings, be ratified at the next Tribal Council meeting....

Resolution 2000-30 declared that all decisions, contracts and agreements made by Nomee were thereafter voidable and on August 15, 2000, Clifford BirdinGround, then the Chairperson of the Crow Tribe, sent a Notice of Termination to Bradley, which stated:

The Crow Tribe hereby provides thirty (30) day notice of its intention to terminate the consultant agreement entered into by yourself and the previous elected administration....

¶ 5 On October 10, 2000, Bradley filed a complaint in District Court, alleging that the Tribe breached its contract with him and had failed to pay him as provided by contract. On December 19, 2000, the Tribe moved to dismiss the action on grounds that the District Court lacked personal and subject matter jurisdiction due to the Tribe's sovereign immunity. The District Court denied the Tribe's motion to dismiss on February 8, 2001, concluding that the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1604 to 1607, permitted Indian tribes to be sued in state and federal courts for causes of action arising from "commercial activities" carried on in the United States, and that the alleged contract provision was a waiver of the Tribe's sovereign immunity. However, the District Court reserved the right to readdress the issue of subject matter jurisdiction.

¶ 6 Following further discovery, neither party could locate or produce a copy of the written contract that was signed by an authorized representative of the Tribe.

¶ 7 On November 27, 2001, Bradley moved for summary judgment. In support of his motion, Bradley filed the sworn affidavit of Clara Nomee dated July 12, 2001. In the affidavit, she stated that she had signed a contract with Bradley to administer the power plant project. She recognized the written contract relied on by Bradley, and declared in her affidavit that:

Although I have no specific recollection of exactly when I signed this document, I am quite certain I did sign it. I would recall any reason for not doing so, and there were none. Further, I do know that under a federal grant program if a contract was not signed, we were not allowed to disburse funds. Failure to have a signed contract would have been called to my attention immediately by the accountants, and there was no such communication.

Also submitted in support of the motion was an affidavit by Bradley in which he claimed the existence of a contractual relationship between him and the Tribe.

¶ 8 The Tribe failed to timely respond to Bradley's motion, and the District Court granted Bradley's motion on February 5, 2002, and entered judgment on February 15, 2002.

¶ 9 On March 12, 2002, the Tribe moved to alter or amend the judgment of the District Court pursuant to Rule 59(g), M.R.Civ.P., and in the alternative, to set aside the judgment pursuant to Rule 60(b), M.R.Civ.P. The Tribe contended that its prior counsel had failed to notify the Tribe of the existing matter or the motions pending before the District Court and, as a result, the Tribe had not filed a timely brief in opposition to summary judgment. The Tribe also argued that the District Court should consider the Tribe's motion because it addressed sovereign immunity and whether the District Court had the subject matter jurisdiction to enforce the terms of the alleged contract.

¶ 10 The District Court ordered a hearing on the matter for April 18, 2002. The parties did not dispute that there was some contractual relationship between Bradley and the Tribe, but argued that there was no formal written contract signed by the Tribe that waived their immunity from suit in state court, and that there was a dispute as to whether the alleged written contract contained the actual terms of Bradley's contract with the Tribe. However, no evidence was submitted which controverted Nomee's or Bradley's affidavits. The District Court found that there was an express agreement which had been partially performed and that it included a waiver of tribal immunity from suit in state court. However, the District Court concluded that because a signed copy of the agreement had not been produced, it was not sufficient to overcome the presumption against waiver of immunity and dismissed the action for lack of jurisdiction.

STANDARD OF REVIEW

¶ 11 "[A] court's determination of a motion to dismiss based on a claim of sovereign immunity is a legal question over which our review is plenary." Thompson v. Crow Tribe of Indians, 1998 MT 161, ¶ 10, 289 Mont. 358, ¶ 10, 962 P.2d 577, ¶ 10 (citation omitted). A determination by a district court that it lacks subject matter jurisdiction is a conclusion of law that we will review for correctness. General Constructors v. Chewculator, Inc., 2001 MT 54, ¶ 16, 304 Mont. 319, ¶ 16, 21 P.3d 604, ¶ 16.

¶ 12 "When deciding a motion to dismiss based on lack of subject matter jurisdiction, a trial court must determine whether the complaint states facts that, if true, would vest the court with subject matter jurisdiction." General Constructors, ¶ 16 (citing Liberty v. State Fund, 1998 MT 169, ¶ 7, 289 Mont. 475, ¶ 7, 962 P.2d 1167, ¶ 7). A motion to dismiss "should be construed in a light most favorable to the non-moving party and should not be granted unless it appears beyond a doubt that the non-moving party can prove no set of facts in support of its claim which would entitle it to relief." General Constructors, ¶ 17 (citation omitted).

DISCUSSION

¶ 13 Did the District Court err when it dismissed Bradley's claim based on its conclusion that the Tribe had not unequivocally waived its immunity from suit in state court?

¶ 14 The District Court recognized the contractual relationship between Bradley and the Tribe; however, it concluded that because it was a contract for employment for more than one year, the Statute of Frauds, found at § 28-2-903(1), MCA, is applicable. The District Court then concluded that Bradley's performance of the contract would normally create an exception to the applicability of the Statute of Frauds pursuant to the court's "equitable powers," but concluded that in this case to exercise those powers would circumvent the Tribe's sovereign immunity and be contrary to federal law. Specifically, the District Court stated:

Federal case law does not support this Court using its

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