County of Lewis v. Allen

• Decision Date: 01 July 1997
• Docket Number: No. 94-35979,94-35979
• Parties: 98 Cal. Daily Op. Serv. 3047, 98 Cal. Daily Op. Serv. 3364, 98 Daily Journal D.A.R. 4211, 98 Daily Journal D.A.R. 4651, 98 Daily Journal D.A.R. 8577 COUNTY OF LEWIS; Don Fortney; Thomas F. Myers, Plaintiffs-Appellees, v. John D. ALLEN, Defendant, and 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 1385

141 F.3d 1385

98 Cal. Daily Op. Serv. 3047, 98 Cal. Daily

Op. Serv. 3364,

98 Daily Journal D.A.R. 4211,

98 Daily Journal D.A.R. 4651,

98 Daily Journal D.A.R. 8577

COUNTY OF LEWIS; Don Fortney; Thomas F. Myers, Plaintiffs-Appellees, v. John D. ALLEN, Defendant, and 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Withdrawn From Submission March 20, 1997.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.

Douglas Roger Nash, Office of Legal Counsel, Nez Perce Tribal Executive Committee, Lapwai, ID, for Defendants-Appellants.

Marc A. Lyons, Ramsden & Lyons, Coeur d'Alene, ID, for Plaintiffs-Appellees.

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: BOOCHEVER, FERNANDEZ, and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

This case deals with a tribal court's jurisdiction over a nonmember in a tort action.

FACTS

Lewis County is a subdivision of the State of Idaho. Much of its territory is within the Nez Perce Indian Reservation. The Nez Perce Tribe, by formal resolution, consented to Idaho's assumption of concurrent criminal jurisdiction within the reservation over a number of minor offenses, including disturbing the peace.

According to a stipulation of facts filed by John D. Allen and the State of Idaho in Allen's criminal appeal, a woman (not a party to that case or this one) called the County Sheriff's Office, and complained of being battered by a bartender. Deputy Sheriff Tom Myers, one of the appellees, went to the Allen house to interview her. Mr. and Mrs. Allen and the woman who called had all been drinking together at the bar. All three were intoxicated, and kept interrupting Deputy Myers as he tried to interview the woman. Eventually Deputy Myers gave up. As he left, the Allens yelled obscenities at him and Mr. Allen shook his fist at him. Deputy Myers told them to quiet down or they would be arrested. Mr. Allen continued to yell at him, so Deputy Myers arrested him for disturbing the peace.

A state magistrate dismissed the disturbing the peace charge, after a jury trial. He ruled that "the only peace disturbed was that of Officer Myers," and "it is stare decisis that When the state misdemeanor case against Mr. Allen ended, Mr. and Mrs. Allen sued Deputy Sheriff Myers, Sheriff Fortney, and Lewis County. They filed the suit in Nez Perce Tribal Court, not an Idaho state court or federal court. The Allens sued for false arrest, assault and battery, false imprisonment, and malicious prosecution, and stated a federal constitutional civil rights claim under 42 U.S.C. § 1983.

a police officer is not a 'person' under the disturbing the peace statute, Idaho Code § 18-6409."

The tribal court case went to trial. The jury found that although Deputy Sheriff Myers had intentionally or wantonly violated Mr. Allen's liberty interests, he acted in good faith. The jury decided that the damages were attributable 10% each to Mr. and Mrs. Allen, 45% to Deputy Sheriff Myers, 25% to Sheriff Fortney, and 10% to Lewis County. Despite finding that Deputy Sheriff Myers acted in good faith, the jury awarded punitive as well as compensatory damages.

The defendants objected to the tribal court's jurisdiction from the beginning, and exhausted their remedies within the tribal court system on their jurisdictional objection. The Tribal Court of Appeals affirmed the judgment against the defendants. It said that "protecting community residents, Indian or non-Indian, from the wrongful conduct of law enforcement officers who operate within the exterior boundaries of the Nez Perce Reservation is a legitimate safety concern." The Allens' house was on fee land, not trust land, but the record does not indicate who owned it. Mr. Allen was a member of the tribe, his wife was not, and the Sheriff and Deputy Sheriff were not.

Having exhausted their remedies in tribal court, Deputy Sheriff Myers, Sheriff Fortney and Lewis County sued in the United States District Court for a declaratory judgment that the tribal court judgment was void for lack of jurisdiction, and an injunction against enforcement of the judgment. The district court granted summary judgment in favor of the County, Sheriff and Deputy Sheriff and issued the declaratory judgment and injunction sought. The appellants are the Nez Perce Tribe, Nez Perce Tribal Court, and judges of the Nez Perce Tribal Court. Appellees are the County of Lewis and its sheriff and deputy sheriff.

ANALYSIS

I. Federal question jurisdiction.

The tribe argues that the federal district court lacked federal question jurisdiction, because the county and its officers could not point to a federal statute or constitutional provision that the tribal court violated. The argument is based on the statement in Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 18, 107 S.Ct. 971, 977-78, 94 L.Ed.2d 10 (1986), that civil jurisdiction over non-Indians on reservation lands "presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute."

The argument is based entirely on a quotation out of context. Iowa Mutual deals with exhaustion, not the extent of federal question jurisdiction in federal court. Iowa Mutual and National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985), "describe an exhaustion rule allowing tribal courts initially to respond to an invocation of their jurisdiction." Strate v. A-1 Contractors, --- U.S. ----, ----, 117 S.Ct. 1404, 1410, 137 L.Ed.2d 661 (1997).

That the tribe's argument is wrong is settled decisively by National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985). There were two issues in that case, federal question jurisdiction in district court and exhaustion in tribal court. A school district sought a federal declaratory judgment and injunction against enforcement of a tribal court judgment, as in the case at bar, but had not yet exhausted its tribal court remedies. The Court held that a challenge to tribal court jurisdiction over non-Indians is a matter of federal common law. Because federal common law controls, the question of tribal court jurisdiction is a federal question under 28 U.S.C. § 1331. Id. at 850-53, 105 S.Ct. at 2450-52. "[A] federal court may determine under § 1331 whether a tribal court has exceeded the lawful limits of its

jurisdiction." Id. at 853, 105 S.Ct. at 2452. "The Supreme Court has squarely held that such an issue raises a question of federal common law." Arizona Public Service Co. v. Aspaas, 77 F.3d 1128, 1132 (9th Cir.1995).

II. Tribal court jurisdiction.

The declaratory judgment issued by the district court holds that the tribal court had no jurisdiction over the Allens' lawsuit against the sheriff, deputy sheriff, and county, and enjoined enforcement of the tribal court judgment. The tribe argues that this ruling was incorrect. It is undisputed that (1) the sheriff, deputy sheriff, and of course the county are not tribal members; (2) the arrest giving rise to the Allens' lawsuit occurred within the reservation.

A. Adjudicatory authority.

The tribe argues, in substance, that a tribal court is presumed to have jurisdiction over activities on reservation territory, regardless of whether the defendants are tribal members. They base this largely on Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). But they misread that case. Williams was a collection case in state court by a non-tribal member for goods sold to a tribal member on the reservation. The Supreme Court held that the state court lacked jurisdiction, because the state had not assumed it, and no federal act gave the state court jurisdiction over such claims.

The Supreme Court has recently explained that Williams is among those cases "fitting within the first exception" in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), for nonmembers who enter into consensual commercial relationships with tribal members. Strate v. A-1 Contractors, --- U.S. ----, ----, 117 S.Ct. 1404, 1415, 137 L.Ed.2d 661 (1997). Those cases, in which tribal courts do have jurisdiction over nonmembers, fall within an exception to the general rule that "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." Montana, 450 U.S. at 565, 101 S.Ct. at 1258. The reason for the rule is that tribal power, except when Congress expands it by express delegation, is limited to what is necessary to protect tribal self-government and control internal relations:

Thus, in addition to the power to punish tribal offenders, Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members. But exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.

Id. at 564, 101 S.Ct. at 1257-58 (citation omitted).

Application of the Montana rule was thrown into question by our decision in Hinshaw v. Mahler, 42 F.3d 1178 (9th Cir.1994). In that case, we appeared to hold that a tribe generally has jurisdiction over nonmember defendants for torts on its reservation, where the tribe's jurisdiction has not been limited by statute or treaty. A car-motorcycle accident on a federal highway between nonmembers of the tribe killed the motorcycle driver. His mother, a tribal member, sued the automobile driver in tribal court for wrongful death, and we upheld the tribal court's assertion of jurisdiction.

The...