Burrell v. Armijo

• Decision Date: 24 July 2006
• Docket Number: No. 03-2223.,03-2223.
• Citation: 456 F.3d 1159
• Parties: Bob BURRELL and Susan Burrell, Plaintiffs-Appellants, v. Leonard ARMIJO, Governor of Santa Ana Pueblo and Acting Chief of Santa Ana Tribal Police; Lawrence Montoya, Lt. Governor of Santa Ana Pueblo; Nathan Tsosie, Tribal Administrator of Santa Ana Pueblo; Jerry Kinsman, Farm Administrator of Santa Ana Pueblo; Santa Ana Pueblo, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

456 F.3d 1159

Bob BURRELL and Susan Burrell, Plaintiffs-Appellants, v. Leonard ARMIJO, Governor of Santa Ana Pueblo and Acting Chief of Santa Ana Tribal Police; Lawrence Montoya, Lt. Governor of Santa Ana Pueblo; Nathan Tsosie, Tribal Administrator of Santa Ana Pueblo; Jerry Kinsman, Farm Administrator of Santa Ana Pueblo; Santa Ana Pueblo, Defendants-Appellees.

No. 03-2223.

United States Court of Appeals, Tenth Circuit.

July 24, 2006.

Chris Lucero, Jr., Albuquerque, NM, for plaintiffs-appellants.

Richard W. Hughes (Caren I. Friedman, with him on the brief), Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, LLP, Santa Fe, NM, for defendants-appellees.

Before BRISCOE, McWILLIAMS, and McCONNELL, Circuit Judges.

BRISCOE, Circuit Judge.

Bob and Susan Burrell ("the Burrells") filed this action against the Santa Ana Pueblo ("the Pueblo"), a federally recognized Indian tribe; Leonard Armijo, Governor of the Pueblo; Lawrence Montoya, Lieutenant Governor of the Pueblo; Nathan Tsosie, Tribal Administrator of the Pueblo; and Jerry Kinsman, Farm Administrator of the Pueblo, for violations of their civil rights pursuant to 42 U.S.C. §§ 1981, 1983, and 1985, as well as claims for breach of a federal farm lease and "respondeat superior." The district court initially stayed the case so that the Burrells could exhaust their tribal court remedies. After the Santa Ana Pueblo Tribal Court ruled that the Pueblo and the named tribal officials were entitled to sovereign immunity, the district court ruled that the tribal court's decision was entitled to preclusive effect and dismissed the Burrells' case. The Burrells now appeal. Exercising jurisdiction pursuant to 28 U.S.C § 1291, we hold that the district should not have given preclusive effect or otherwise recognized the tribal court's ruling, and therefore reverse and remand the case for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND¹

In May 1980, the Burrells entered into a ten-year farming lease with the Pueblo for approximately 172 acres of the Pueblo's land.² According to the Burrells, they were informed that if they conducted a successful farming operation, the lease would be renewed for as long as they lived. As a result, the Burrells obtained farm loans from the Farmer's Home Administration ("FHA") and invested their personal assets in order to purchase equipment and other materials necessary to run a farm. In February 1985, the Tribal Council of the Pueblo (the "tribal council") extended the lease until September 2000 so that the Burrells could refinance their FHA loans.

The Burrells integrated themselves into the ways of the Pueblo and, in their own words, were "sometimes" treated "more than fair" by Pueblo officials. The Burrells assert, however, that over the years Pueblo officials subjected them to various forms of discrimination. See App. at 12-13. For example, the Burrells claim that Pueblo officials prohibited them from driving their farm equipment along paved roads, prevented them from using more than a couple of horseback riders to move their cattle, and refused to permit construction of concrete ditches in their fields—all while allowing tribal members these privileges.

The Burrells allege that the discrimination against them worsened in early 1997 when acting Chief of Police Leonard Armijo became Governor of the Pueblo. In June 1997, Governor Armijo allegedly ordered them to quit bailing hay at night, even though tribal members were permitted to do so. Moreover, the Burrells maintain that other Pueblo officials, including Lieutenant Governor Lawrence Montoya, Tribal Administrator Nathan Tsosie, and Farm Administrator Jerry Kinsman, refused to interfere with Governor Armijo's order and worked with him to drive them off their farm. App. at 14.

In July 1997, Lieutenant Governor Montoya inquired as to what amount the Burrells would accept from the Pueblo to buy out the farm lease. The Burrells proposed $500,000. On July 24, the Burrells contend that the tribal council voted to buy out the lease for $500,000 and that a tribal member informed them that the vote was 47-2. That same month, the Burrells allege that Farm Administrator Kinsman ordered tribal farm crews to take over their farm.

The Burrells assert that Governor Armijo, Lieutenant Governor Montoya, Tribal Administrator Tsosie, and Farm Administrator Kinsman (hereinafter "the individual tribal officials") refused to comply with the tribal council's resolution to buy out the Burrells for $500,000. Instead, they proceeded to negotiate for less money. The Burrells allege that the individual tribal officials lacked the authority to refuse to put into effect the tribal council's resolution.

On August 15, 1997, the individual tribal officials allegedly hired others to bale the Burrells' hay crop and then distributed part of the crop to Pueblo members. The Burrells claim that this conduct amounted to larceny. On August 25, the Burrells removed their two mobile homes and all of their farm equipment from the leased land. A few days later, the individual tribal officials and their attorney met with the Burrells and offered them the following package: $218,000 to pay off their FHA loan; three years of health insurance; a home lot off of the Pueblo for the mobile homes; and to hire Mr. Burrell as farm manager for the Pueblo. The Burrells contend that the individual tribal officials withdrew the offer on September 23, but that the tribal council voted to reinstate the offer on September 25. In October 1997, the Burrells, through their attorney, demanded all tribal council records dealing with their farm lease to "see if there [was] any possibility of avoiding litigation." By January 1998, the tribal council had passed a resolution rescinding the September 1997 offer to the Burrells.

It is the Burrells' position that the individual tribal officials intentionally ran them off their farm, stole their crops, terminated their lease, and discriminated against them on account of their race (non-Indian). Aplt. Br. at 13.

II. PROCEDURAL HISTORY

A. Administrative Proceedings Before the Bureau of Indian Affairs, United States Department of Interior

The Burrells' complaint asserts that beginning in 1997, the Pueblo officials falsely informed the Bureau of Indian Affairs ("BIA") that they abandoned their farm, violated their lease, and defaulted on their FHA loan and water rights assessments. App. at 17.

A tribal council resolution dated October 1, 1998, stated that the Burrells abandoned their lease in the summer of 1997 and requested that the BIA institute proceedings to terminate the farm lease. Id. at 41. A letter dated February 11, 1999, from the Superintendent of the Southern Pueblos Agency, BIA, United States Department of Interior, notified the Burrells that the farm lease was cancelled. Id. at 43-44. The Superintendent cited the Burrells' failure to keep their performance bond up to date, the tribal council's October 1998 resolution, and delinquent operations and maintenance charges as reasons for the decision. The Superintendent also noted the Burrells' failure to respond to the office's prior requests for information. Id.

The Burrells appealed that decision to the Albuquerque Area Office, BIA, United States Department of Interior. On May 26, 1999, the Area Director affirmed the Superintendent's decision to cancel the lease. Id. at 45. In particular, the Area Director observed that the Burrells sent a letter dated June 22, 1998, to the Superintendent, complaining that discrimination from Pueblo officials amounted to a constructive termination and breach of the lease. Id. at 48. That June 1998 letter stated, in relevant part: "[The Burrells] did not voluntarily abandon their lease, but instead were illegally driven off their lands which they worked peacefully for 17 years, all because of the prejudice of a few tribal officials. The imposition of a performance bond under these circumstances is not proper." Id. at 53. Additionally, the Area Director stated that the Burrells did not dispute the violations cited by the Superintendent, but that the Burrells' attorney advised the office that it faced federal litigation if it continued to refuse to enforce the Burrells' contractual and constitutional rights. Id. at 48. The Area Director concluded that the Burrells' claims failed to excuse their multiple breaches under the lease. Id. at 49.

The Burrells appealed the Area Director's decision to the Interior Board of Indian Appeals ("IBIA"), United States Department of Interior. The IBIA affirmed the Area Director's decision on May 17, 2000. Id. at 52. The IBIA held that the BIA did not have a trust duty toward the Burrells, rejecting the Burrells' argument that the lease violations should be excused because of the BIA's failure to investigate their allegations against the Pueblo. Id. at 55. Specifically, the IBIA determined that the Burrells reported the allegations of discrimination to the BIA long after they were in violation of the lease. Id. Therefore, the IBIA concluded that the BIA's failure to investigate those allegations was not the cause of the Burrells' lease violations. Id.

The Burrells did not seek federal court review of the IBIA's decision.

B. Federal Court and Tribal Court Proceedings

On April 14, 1998, the Burrells filed an action in the United States District Court for the District of New Mexico, Burrell v. Armijo, et al., CIV 98-0438 JC/WWD, alleging civil rights claims under 42 U.S.C. §§ 1981, 1983, and 1985, as well as a separate count based on "respondeat superior," against the Pueblo and the individual tribal officials. App. at 21, 226-45. The district court dismissed that action without prejudice because of the Burrells' failure to exhaust tribal court remedies, following the Supreme Court's decisions in National Farmers Union Insurance Companies v. Crow Tribe, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985) and Iowa Mutual Insurance Company v....