Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 78-1999
| Decision Date | 18 July 1980 |
| Docket Number | No. 78-1999,78-1999 |
| Citation | 623 F.2d 682 |
| Parties | DRY CREEK LODGE, INC., a Wyoming Corporation, et al., Plaintiffs-Appellants, v. ARAPAHOE AND SHOSHONE TRIBES, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John R. Hursh of Central Wyoming Law Associates, P. C., Riverton, Wyo. (G. L. Spence of Spence, Moriarity & Schuster, Jackson, Wyo., with him on brief), for plaintiffs-appellants.
Harry R. Sachse of Sonosky, Chambers & Sachse, Washington, D. C. (Marvin J. Sonosky of Sonosky, Chambers & Sachse, Washington, D. C., with him on brief), for defendant-appellee Shoshone Tribe.
R. Anthony Rogers of Wilkinson, Cragun & Barker, Washington, D. C., on brief, for defendant-appellee Arapahoe Tribe.
Before SETH, Chief Judge, and HOLLOWAY and BARRETT, Circuit Judges.
The case originally came to this court upon a dismissal of plaintiffs' complaint for damages for lack of jurisdiction. We reversed and remanded the case for trial. Dry Creek Lodge, Inc. v. United States, 515 F.2d 926 (10th Cir.). The previous opinion contains the holdings as to parties and disposition of several issues.
Upon remand the case was tried on the merits. The jury returned a verdict for plaintiffs against the defendant Tribes only, judgment was entered, and costs were assessed against the Tribes. On motion by defendant Tribes the trial court granted a new trial on the ground that the jury did not properly handle the issue of damages.
Before the case was retried the Supreme Court handed down Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106. The trial court thereupon dismissed the action on the theory that Santa Clara had decided the issue of jurisdiction. The plaintiffs have taken this appeal.
The facts are, of course, the same as on the original appeal, and the case is again before us following a dismissal for lack of jurisdiction.
The facts are set out in our previous opinion but some restatement appears to be useful. Plaintiffs' land is within the exterior boundaries of the Wind River Reservation of the Shoshone and Arapahoe Indians in Wyoming. The reservation is large and the town of Riverton and other settlements are within its boundaries. Many more non-Indians than Indians live within the boundaries. There are a large number of patented tracts owned in fee by non-Indians not including the property in Riverton. The reservation boundaries have changed substantially from time to time.
The lands of plaintiff corporation were patented to a predecessor in title in 1924. There was a small road providing access from the land of Dry Creek Lodge to the principal highway. This had been used by plaintiffs and other persons for access to the fee land and other lands for a period of some eighty years.
Plaintiffs Cook, who are non-Indians, had owned the 160-acre tract for about ten years and had lived there. They decided to build a guest lodge for hunting, and consulted the superintendent of the reservation about the matter. He advised them that projects of that type were encouraged to provide employment. He also stated that there would be no access problem. A license to plaintiffs Cook was issued for the business. The individuals then formed Dry Creek Lodge, Inc. to build the facilities. This was done with a SBA loan. The lodge was completed and opened, but the next day the Tribes closed the road at the request of a nearby Indian family, the Bonatsies. The access road had crossed an allotment belonging to this family. Apparently the plaintiffs have lost the property by foreclosure. The access road was closed in 1974.
The Tribes have a Joint Business Council which is composed of the Business Councils of each Tribe. These Councils are the legislative, executive and judicial bodies for the Tribes. The Tribal Business Councils are elected by members of each Tribe. The record contains the minutes of several meetings of the Joint Council relative to closing the business and the access road. The Council directed that access to the Dry Creek Lodge be prevented by the federal officers, and the Bonatsies were apparently to erect the barricade. With the road blocked the persons on the Dry Creek land could not get out and were for all practical purposes confined there until a federal court issued a temporary restraining order. Thereafter the plaintiffs sought a remedy with the tribal court, but were refused access to it. The judge indicated he could not incur the displeasure of the Council and that consent of the Council would be needed. 25 C.F.R. § 11.22. The consent was not given. The state court cases were apparently removed to the federal court. In the federal court the defendants urged that there was no remedy no jurisdiction. The defendants again assert there is no remedy in the federal court by reason of the Santa Clara case. The Tribal Business Council, according to the minutes, directed that the differences between the Bonatsie family and the plaintiffs should be settled by self-help, and this was done. The plaintiffs, however, did not respond in the same way. The defendants argue here, as they did in the trial court, that the plaintiffs have no remedy. There is no forum where the dispute can be resolved and the personal and property rights asserted by plaintiffs be considered.
Before considering the Santa Clara opinion we would like to look at one aspect of Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209. This relates to the sovereignty holding by the Ninth Circuit. The circuit had in substance held that the authority there in issue was presumed to be in the Tribe unless Congress had acted. The majority in the circuit opinion posed the question as to whether Congress had taken away the sovereignty of the Tribe as to the matter in issue. The Supreme Court reversed and turned the matter around. The Court said:
(Emphasis supplied.)
The Court in Oliphant also said:
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106, was an
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