County of Lewis v. Allen

• Citation: 163 F.3d 509
• Decision Date: 11 December 1998
• Docket Number: No. 94-35979,94-35979
• Parties: 98 Cal. Daily Op. Serv. 9021, 98 Daily Journal D.A.R. 12,641 COUNTY OF LEWIS; Don Fortney; Thomas F. Myers, Plaintiffs-Appellees, v. John D. ALLEN, Defendant, Nez Perce Tribe; Nez Perce Tribal Court; Judges of the Nez Perce Tribal Court, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 509

163 F.3d 509

98 Cal. Daily Op. Serv. 9021, 98 Daily Journal

D.A.R. 12,641

COUNTY OF LEWIS; Don Fortney; Thomas F. Myers, Plaintiffs-Appellees, v. John D. ALLEN, Defendant,

Nez Perce Tribe; Nez Perce Tribal Court; Judges of the Nez

Perce Tribal Court, Defendants-Appellants.

No. 94-35979.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 16, 1995.

Withdrawn From Submission March 20, 1997.

Resubmitted July 1, 1997.

Decided April 23, 1998.

Amended May 5, 1998.

Second Amendment July 24, 1998.

Rehearing En Banc Granted and Opinion Withdrawn July 31, 1998.

Argued and Submitted Sept. 24, 1998.

Decided Dec. 11, 1998.

Douglas Nash, Office of Legal Counsel, Nez Perce Tribal Executive Committee, Lapwai, Idaho, for the defendants-appellants.

Marc A. Lyons, Ramsden & Lyons, Coeur d'Alene, Idaho, for the plaintiffs-appellees.

Michele Odorizzi, Mayer, Brown & Platt, Chicago, Illinois, for amicus curiae Burlington Northern Railroad Company.

Michael E. McNichols, Clements, Brown & McNichols, Lewiston, Idaho, for amicus curiae North Central Idaho Jurisdictional Alliance.

Melody L. McCoy, Native American Rights Fund, Boulder, Colorado, for amicus curiae Fallon Paiute-shoshone Tribe.

C. Wayne Howle, Deputy Attorney General, Carson City, Nevada, for Amici curiae the States of Nevada, Utah, Montana, California and Oregon.

Appeal from the United States District Court for the District of Idaho Harold L. Ryan, District Judge, Presiding. D.C. No. CV-93-00382-HLR.

Before: HUG, Chief Judge, SCHROEDER, BOOCHEVER, KOZINSKI, THOMPSON, O'SCANNLAIN, TROTT, FERNANDEZ, KLEINFELD, SILVERMAN, McKEOWN, Circuit Judges.

McKEOWN, Circuit Judge:

We are called upon to determine tribal jurisdiction in a circumstance involving a law enforcement agreement between two governmental entities, the Nez Perce Tribe and the State of Idaho. Under that agreement, the tribe consented to state jurisdiction over certain minor crimes. As a result, the tribe granted County of Lewis law enforcement officers authority to come onto the reservation to patrol, investigate and make arrests for these misdemeanors. Acting under authority of the tribal-state arrangement, a deputy county sheriff arrested a tribal member within the reservation for disturbing the peace. The state court dismissed the charge. The tribal member then brought suit in tribal court against the county and its law enforcement officers, claiming false arrest, other torts and a civil rights violation stemming from the arrest. After the Tribal Court of Appeals affirmed a tribal court jury verdict against the county and its officers, they brought a federal court declaratory judgment action challenging tribal court jurisdiction. The district court held that the tribal court lacked jurisdiction over the non-Indian defendants. A three-judge panel of this Circuit agreed and affirmed. We granted rehearing en banc. County of Lewis v. Allen, 141 F.3d 1385 (9th Cir.), withdrawn and reh'g en banc granted, 149 F.3d 1228 (9th Cir.1998). After supplemental briefing by amici curiae and further argument, we conclude that this case turns primarily on the agreement between the tribe and the state. We affirm the district court's decision. The tribal court lacked jurisdiction and the district court properly enjoined enforcement of the tribal court judgment.

BACKGROUND AND PRIOR PROCEEDINGS

The Law Enforcement Agreement

The Nez Perce Indian Reservation encompasses virtually all of Lewis County, a political subdivision of the State of Idaho. Within the reservation itself, land ownership is a patchwork of land held in trust for the tribe by the federal government ("tribal trust land"), Indian fee-land, and non-Indian fee land.

In 1965, the Nez Perce Tribal Executive Committee, the governing body of the reservation, passed a resolution consenting to have Idaho "assume and exercise concurrent criminal jurisdiction over offenses other than those known as the major crimes, committed by Indians living on the reservation." These minor crimes included battery and disturbing the peace. This resolution ("the Agreement") is variously referred to as a law enforcement agreement, compact or arrangement. Prior to the Agreement, the Nez Perce tribe had exclusive jurisdiction over the prosecution of Indians for minor criminal offenses arising on its reservation. Under the Agreement, the tribe gave up this exclusive right.

The Agreement was a consequence of major legislation affecting Indians, known as "Public Law 280." Passed in 1953, Public Law 280 permitted states to assume criminal and civil jurisdiction over cases involving Indians in Indian country. 18 U.S.C. § 1162; 25 U.S.C. § 1321-1322; 28 U.S.C. § 1360. In 1963, pursuant to Public Law 280, Idaho passed legislation assuming jurisdiction over cases involving seven specific matters arising in Indian country, e.g., juvenile delinquency, domestic relations and mental illness, but not the crimes at issue here. Idaho Code § 67-5101. The legislation also provided that a tribe could negotiate individually with the state to extend state jurisdiction over other matters. Idaho Code § 67-5102. Two years later, in 1965, the Nez Perce Tribe and the State of Idaho entered into the compact at issue, extending state criminal jurisdiction to certain minor crimes.

Allen's Arrest

The chain of events leading to this jurisdictional dispute started in 1986 when a woman named Jennifer McAllister (not a party to any of the lawsuits) called the Lewis County Sheriff's Office and complained that she had been battered by a bartender. In response, acting under authority of the tribal-state Agreement, a deputy sheriff went to John Allen's house on the reservation to interview McAllister. Allen, his wife and McAllister were all intoxicated, having been drinking together at a bar. As the deputy attempted to interview McAllister, Mr. and Mrs. Allen continually interrupted him and he was unable to proceed. When the deputy announced that he was leaving and that they could call the Sheriff's Office in the morning, the Allens shouted obscenities at him, and Mr. Allen doubled up his fist and challenged the deputy to fight. The deputy warned the Allens that if they did not quiet down they would be arrested. Although Mrs. Allen quieted down, Mr. Allen ignored this warning and kept yelling. The deputy then arrested him for disturbing the peace in violation of Idaho Code § 18-6409 and placed him in the county jail. Allen was prosecuted in state court on the charge of disturbing the peace, but the charge was dismissed after a jury trial. The state magistrate found that "the only peace disturbed was that of [the][o]fficer" and that "it is Stare Decisis that a police officer is not a 'person' under the Disturbing the Peace statute."

Tribal Court Proceedings

Following the state court dismissal, Mr. and Mrs. Allen filed suit in Nez Perce Tribal Court against the sheriff, the deputy sheriff, and the county for false arrest, assault and battery, false imprisonment, malicious prosecution, and a federal civil rights claim under 42 U.S.C. § 1983. Allen is a member of the Nez Perce tribe; his wife is not. From the outset of the proceedings, the county defendants objected to tribal court jurisdiction. The tribal court held that under the Nez Perce tribal code, it had jurisdiction over claims of wrongful damage to person or property that occurred within the exterior boundaries of the Nez Perce Reservation. Allen's arrest and his imprisonment in the Lewis County jail occurred within the reservation boundaries. Although Allen's residence was not on tribal trust land, the parties did not establish the precise status of the land. ¹

A jury composed of six Nez Perce tribal members found that the deputy sheriff intentionally or wantonly violated Allen's liberty interests and violated clearly established state law. In a special verdict form, the jury found that the deputy, the sheriff, the county, and Allen himself were all negligent, Allen's wife was not negligent, and the proximate cause of Allen's injuries was the conduct of the county defendants. The jury further found that the damages to Allen were attributable 45% to the deputy sheriff, 25% to the sheriff, 10% to the county, 10% to Allen and 10% to his wife. Despite finding that the deputy sheriff acted in good faith and did not intentionally injure Allen, the jury awarded Allen $10,000 in punitive damages in addition to $2,730 in compensatory damages.

On appeal to the Nez Perce Tribal Court of Appeals, the county defendants again challenged jurisdiction. The Tribal Court of Appeals

affirmed the tribal trial court on all grounds, explaining that jurisdiction over the non-Indians existed because: (1) the Nez Perce tribal code provides for tribal court jurisdiction over civil actions against non-Indians arising within or affecting the Nez Perce reservation; and (2) protecting residents from wrongful conduct of law enforcement officers operating within the exterior boundaries of the Nez Perce reservation "is a legitimate safety concern."

Federal Court Proceedings

Having fully exhausted their remedies in tribal court, the county defendants brought a declaratory judgment suit in federal district court against Allen, the Nez Perce Tribe, the Nez Perce Tribal Court and the Judges of the Nez Perce Tribal Court. The district court granted summary judgment in favor of the county and its officers, issued a declaratory judgment that the tribal court judgment was void for lack of jurisdiction, and enjoined enforcement of the judgment.

ANALYSIS

I. Federal Question Jurisdiction

We reject the tribe's argument that Lewis County's complaint does not allege any claim based on federal law and that therefore the district court lacked jurisdiction under 28 U.S.C. § 1331. "[F]ederal courts have authority to determine, as a matter 'arising under' federal law, see 28 U.S.C. § 1331, whether a tribal court has exceeded the limits of its jurisdiction." Strate...