Diepenbrock v. Merkel

• Decision Date: 24 September 2004
• Docket Number: No. 90,708.,90,708.
• Parties: RITA DIEPENBROCK, Individually and for and on Behalf of the Heirs at Law of JOHN DIEPENBROCK, Deceased, Appellants, v. WILLIAM EARL MERKEL, TOPEKA AIR AMBULANCE, INC., and PAUL JUEDES, MICT., Appellees.
• Court: Kansas Court of Appeals

33 Kan.App.2d 97

97 P.3d 1063

RITA DIEPENBROCK, Individually and for and on Behalf of the Heirs at Law of JOHN DIEPENBROCK, Deceased, Appellants, v. WILLIAM EARL MERKEL, TOPEKA AIR AMBULANCE, INC., and PAUL JUEDES, MICT., Appellees.

No. 90,708.

Court of Appeals of Kansas.

Opinion filed September 24, 2004.

Kevin L. Diehl and Eugene B. Ralston, of Ralston, Pope & Diehl, LLC, of Topeka, for appellant.

Daniel P. Hanson, of Hanson & Gurney, of Overland Park, for appellee Topeka Air Ambulance, Inc.

Clinton W. Lee and Mark A. Buck, of Fairchild & Buck, P.A., of Topeka, for appellees William Earl Merkel and Paul Juedes.

Before GREEN, P.J., MALONE, J., and STEPHEN R. TATUM, District Judge, assigned.

GREEN, J.:

John Diepenbrock (Diepenbrock) suffered a heart attack while a patron of Harrah's Prairie Band Casino (Casino) and received medical treatment from William Earl Merkel, Paul Juedes, and Topeka Air Ambulance, Inc. (defendants). Rita Diepenbrock (Rita), both as personal representative of Diepenbrock's estate and in her own capacity, sued the defendants. Rita maintained that the defendants wrongfully caused the death of Diepenbrock. The defendants moved to dismiss Rita's petition for lack of subject matter jurisdiction. The defendants sought dismissal of the action on the grounds that the Tribal Court of the Prairie Band Potawatomi Nation had exclusive jurisdiction over this case. The trial court granted the defendants' motion. On appeal, Rita contends that the trial court erred in granting the defendants' motion to dismiss for lack of subject matter jurisdiction. We disagree and affirm. The facts in this case are not in dispute. On August 6, 2000, Diepenbrock suffered a heart attack at the Casino. The principal actions in this case occurred on tribal property. Merkel and Juedes furnished emergency services to Diepenbrock. Merkel and Juedes were employed by Potawatomi Tribal Emergency Services as Mobile Intensive Care Technicians. Moreover, they were on duty and furnished emergency services within the scope of their employment in attending to Diepenbrock. Diepenbrock and the defendants were all non-Indians.

Rita sued the defendants for the negligent treatment of Diepenbrock and for causing his death. She filed the suit in the Douglas County District Court. The trial court found it was undisputed that all parties to the action were non-Indians and that the alleged negligent emergency services occurred on reservation lands owned by the Potawatomi Tribe. The trial court dismissed the case on grounds it lacked subject matter jurisdiction because all events occurred on tribal property and decided the case should be transferred to the Tribal Court of the Prairie Band Potawatomi Nation.

Rita argues that the trial court erred in holding that it lacked subject matter jurisdiction to adjudicate her wrongful death claim. She argues that jurisdiction was proper in the trial court, not the tribal court, because all parties to this case were non-Indian and because resolution of this case in the state courts of Kansas would have had little to no effect on the sovereignty of the Prairie Band Potawatomi Nation.

In reviewing a motion to dismiss, our determination is the same as the trial court, namely whether the petition states any valid claim for relief when viewed in the light most favorable to the plaintiff and with every doubt resolved in the plaintiff's favor. See University of Kansas Mem. Corp. v. Kansas Power & Light Co., 31 Kan. App. 2d 177, Syl. ¶ 1, 61 P.3d 741 (2003). Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. See Nichols v. Kansas Political Action Committee, 270 Kan. 37, 39, 11 P.3d 1134 (2000).

"Indian tribes are `domestic dependent nations' that exercise inherent sovereign authority over their members and territories. [Citation omitted.]" Oklahoma Tax Comm'n v. Potawatomi Tribe, 498 U.S. 505, 509, 112 L. Ed. 2d 1112, 111 S. Ct. 905 (1991). "We `can readily agree,' in accord with Montana [v. United States, 450 U.S. 544, 557, 67 L. Ed. 2d 493, 101 S. Ct. 1245 (1981)], that tribes retain considerable control over nonmember conduct on tribal land." Strate v. A-1 Contractors, 520 U.S. 438, 454, 137 L. Ed. 2d 661, 117 S. Ct. 1404 (1997). Indian reservations are separate and distinct nations inside the boundaries of the state of Kansas. Indian rights are protected by treaty with the United States. Kaul v. Kansas Dept. of Revenue, 266 Kan. 464, 970 P.2d 60 (1998),cert. denied 528 U.S. 812 (1999). The inherent sovereignty possessed by Indian tribes allowed them to form "their own laws and be ruled by them." White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 65 L. Ed 2d 665, 100 S. Ct. 2578 (1980).

In determining that the state court lacked jurisdiction to consider the claim and that jurisdiction was proper in the tribal court, the United States Supreme Court in Williams v. Lee, 358 U.S. 217, 3 L. Ed. 2d 251, 79 S. Ct. 269 (1959), stated:

"There can be no doubt that to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves. It is immaterial that respondent is not an Indian. He was on the Reservation and the transaction with an Indian took place there. Cf. Donnelly v. United States, supra; Williams v. United States, supra. The cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is to be taken away from them, it is for Congress to do it. Lone Wolf v. Hitchcock, 187 U.S. 553, 564-566[, 47 L. Ed 299, 23 S. Ct. 216]." 358 U.S. at 223.

This dispute involved a collection case filed in state court by a non-Indian who operated a general store on tribal land against a tribal member who purchased items on credit.

The district court in the case at bar utilized Williams for authority to hold that tribal courts have carte blanche authority over all matters occurring on tribal property and therefore it lacked subject matter jurisdiction. The district court's ruling and the appellee's arguments focus on the following language in Williams: "It is immaterial that respondent is not an Indian." Nevertheless, the reason why it was immaterial that the storeowner in Williams was non-Indian was because the defendants were tribal members and all the events took place on tribal property. We are not presented with similar facts in the present case. The United States Supreme Court has yet to decide whether it was immaterial that the store owner was non-Indian in a case where all parties are non-Indian and all events occurred on tribal property.

The trial court also focused on the geographical basis for tribal jurisdiction. Although all the parties were non-Indian, all events occurred on tribal land owned in fee by the Tribe. It is apparent that the trial court based its decision on tribal sovereignty and on the fact that the incident occurred on tribal land.

A tribal court's jurisdiction is not absolute for all activities occurring on tribal property. See Nevada v. Hicks, 533 U.S. 353, 150 L. Ed. 2d 398, 121 S. Ct. 2304 (2001) (State officials operating on a reservation to execute a search warrant for evidence of off-reservation poaching crime are properly held accountable for tortious conduct and civil rights violations in either state or federal court, but not in tribal court.); People of State of New York ex rel. Ray v. Martin, 326 U.S. 496, 90 L. Ed. 261, 66 S. Ct. 307 (1946) (state courts have been allowed to try non-Indians who committed crimes against each other on a reservation); compare Donnelly v. United States, 228 U.S. 243, 269-72, 57 L. Ed. 820, 33 S. Ct. 449 (1913), and Williams v. United States, 327 U.S. 711, 90 L. Ed. 962, 66 S. Ct. 778 (1946) (if crime was by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress is exclusive), with Fisher v. District Court, 424 U.S. 382, 47 L. Ed. 2d 106, 96 S. Ct. 943 (1976) (tribal court had exclusive jurisdiction over an adoption proceeding when all parties were members of the Tribe and resided on its reservation).

A fact pattern similar to this case occurred in Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 794 A.2d 498 (2002). In Kizis, a non-Indian casino patron claimed she fell while entering the casino due to a negligently placed fieldstone in the entrance walkway. The plaintiff sued two non-Indian employees of the Tribe and the Mohegan Tribal Gaming Authority, who are not Indian, in state district court. The defendant employees moved to dismiss claiming tribal sovereign immunity. The district court denied the motion. Although the issue of subject matter jurisdiction was not addressed in the district court, the Connecticut Supreme Court reversed the trial court's decision on grounds that the trial court lacked subject matter jurisdiction and the proper forum was in the Mohegan Gaming Disputes Court. 260 Conn. at 49-50.

In discussing the longstanding principles of sovereignty enjoyed by Indian tribes, the Kizis court stated: "Absent a clear and unequivocal waiver by the tribe or congressional abrogation, the doctrine of sovereign immunity bars suits for damages against a tribe." 260 Conn. at 53-54 (quoting Romanella v. Hayward, 933 F. Supp. 163, 167 [D. Conn. 1996]). The Kizis court outlined the history of the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (1994), and the compact entered between the State of Connecticut and the Mohegan Tribe of Indians of Connecticut. The Kizis court concluded the statutes and compacts recognized by the federal, state, and tribal governments placed the negligence action at issue within the jurisdiction of the Tribe's Gaming Disputes Court. In explaining why the subject matter jurisdiction of the state...