Freemanville Water v. Poarch Band of Creek Indians

• Decision Date: 30 March 2009
• Docket Number: No. 08-10602.,08-10602.
• Citation: 563 F.3d 1205
• Parties: FREEMANVILLE WATER SYSTEM, INC., Plaintiff-Appellant, v. POARCH BAND OF CREEK INDIANS, P.C.I. Gaming, Creek Indian Enterprises, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

563 F.3d 1205

FREEMANVILLE WATER SYSTEM, INC., Plaintiff-Appellant, v. POARCH BAND OF CREEK INDIANS, P.C.I. Gaming, Creek Indian Enterprises, Defendants-Appellees.

No. 08-10602.

United States Court of Appeals, Eleventh Circuit.

March 30, 2009.

Thomas Marriott Wood, H. William Wasden, Burr & Forman, LLP, Mobile, AL, for Plaintiff-Appellant.

Robin G. Laurie, Kelly Fitzgerald Pate, Balch & Bingham, LLP, Montgomery, AL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before TJOFLAT and CARNES, Circuit Judges, and HOOD,^* District Judge.

CARNES, Circuit Judge:

An Indian tribe would like to develop its own water facilities and distribution system, but a rural water authority already exists to serve parts of the county, including all of the tribe's lands and members. Not wanting to lose any of its customer base, the water authority claims an exclusive right to continue serving those parts of the county. The source of the claimed right is the anti-curtailment provision of the Consolidated Farm and Rural Development Act of 1961, 7 U.S.C. §§ 1921-2009dd-7, which protects water authorities funded with federal loans from encroachment on their territories. The tribe asserts that it has sovereign immunity.

Indian tribes have sovereign immunity from lawsuits unless Congress has abrogated it in the statute creating the right of action that is asserted against the tribe. To be effective the expression of congressional intent must be a clarion call of clarity. Ambiguity is the enemy of abrogation, and the critical part of the Rural Development Act is ambiguous.

I.

Freemanville Water System, Inc. is a rural water authority that operates a water system that supplies various parts of Escambia County, Alabama. It funds that service through a federal loan authorized by 7 U.S.C. § 1926(a)(1), which is one paragraph of the Consolidated Farm and Rural Development Act. The Poarch Band of Creek Indians is a federally recognized Indian tribe with non-contiguous tribal reservation and trust lands located in Escambia County. Freemanville currently provides water to the Poarch Band's lands.

Having decided that supplying its own water would be the best way to meet its needs, the Poarch Band began developing its own water facilities in the spring of 2007. To ensure that it has what it terms a "dependable and economic source of water for residential and commercial use on tribal lands," the Poarch Band wants to construct a distribution facility that would deliver water to all of those lands. Because its tribal lands are not all contiguous, some of the water system's infrastructure will be situated on non-tribal land within Freemanville's service area.

Freemanville filed a federal lawsuit in September 2007 asserting that the Poarch Band's "planned construction of a water system on or between tribal lands will curtail or limit Freemanville's service" in violation of § 1926(b).¹ It asked for a declaratory judgment and an injunction barring the Poarch Band from building a water facility within Freemanville's service area during the term of its federal loan. The Poarch Band filed a motion to dismiss asserting that the district court lacked jurisdiction due to tribal sovereign immunity.

The district court granted the motion to dismiss after concluding that the Rural Development Act did not make it clear that Congress had intended to abrogate the Poarch Band's sovereign immunity from claims arising under the Act. Noting the Supreme Court's refusal to draw distinctions between tribal and non-tribal lands for sovereign immunity purposes, the court also concluded that the Poarch Band's immunity extended to all tribal actions regardless of whether those actions occurred solely on the tribe's property.²

II.

Paragraph 1926(a)(1) grants the Secretary of Agriculture authority "to make or insure loans to associations, including corporations not operated for profit, Indian tribes on Federal and State reservations and other federally recognized Indian tribes, and public and quasi-public agencies to provide for ... the conservation, development, use, and control of water. ..." 7 U.S.C. § 1926(a)(1); see also id. § 1921. To safeguard the federal government's investment in rural development, the Act also includes a subsection intended to protect a § 1926(a)(1) loanholder's territory or service area so that the water service facility will generate enough funds to pay back the loan. See id. § 1926(b). That subsection, the anti-curtailment provision, states: "The service provided or made available through any such association shall not be curtailed or limited by inclusion of the area served by such association within the boundaries of any municipal corporation or other public body ... during the term of such loan ...." Id.

Assuming that the anti-curtailment provision creates a private right of action for an association to sue an encroacher, see supra n. 2, the question is whether a lawsuit asserting that right of action against an Indian tribe is barred by sovereign immunity.

A.

"`Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.'" Florida v. Seminole Tribe, 181 F.3d 1237, 1241 (11th Cir. 1999) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978)). Thus, "an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity." Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 1702, 140 L.Ed.2d 981 (1998). Tribal sovereign immunity, where it applies, bars actions against tribes regardless of the type of relief sought. See, e.g., id. at 760, 118 S.Ct. at 1705 (barring suit for money damages); Fla. Paraplegic Ass'n v. Miccosukee Tribe of Indians, 166 F.3d 1126, 1127 (11th Cir.1999) (barring suit for injunctive relief).

When Congress intends to abrogate tribal sovereign immunity, it must do so expressly, with clear and unequivocal language. See, e.g., Santa Clara, 436 U.S. at 58-59, 98 S.Ct. at 1677; Seminole Tribe, 181 F.3d at 1241-42. We have held that abrogation requires "the definitive language of the statute itself [to] state[] an intent either to abolish Indian tribes' common law immunity or to subject tribes to suit under the act." Miccosukee Tribe, 166 F.3d at 1131. Where congressional intent is ambiguous as to Indian rights, those ambiguities "must be resolved in the Indians' favor." Seminole Tribe, 181 F.3d at 1242. Although Congress does not have to state its intent to abrogate in a single provision of the Act, whether it is drawn from one or several provisions, that intent must be "unmistakably clear." See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 640, 145 L.Ed.2d 522 (2000) (evaluating state sovereign immunity and noting the "simple but stringent test" courts apply to determine whether Congress has abrogated sovereign immunity: "Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute." (internal quotation marks omitted)); Miccosukee Tribe, 166 F.3d at 1131 (noting that the unmistakably clear standard applies to both tribal and state sovereign immunity). The question is whether the Rural Development Act clearly and unequivocally shows that Congress intended to abrogate the sovereign immunity of Indian tribes and to permit a lawsuit against them for violating the Act's anti-curtailment provision.

B.

The anti-curtailment provision in the Rural Development Act refers to "any municipal corporation or other public body," 7 U.S.C. § 1926(b), without specifically mentioning Indian tribes, while several other parts of the same Act do mention them. For example, § 1926(a)(13) requires that the "highest priority" for water facility loans be given to applications from "any municipality or other public agency (including an Indian tribe on a Federal or State reservation or other federally recognized Indian tribal group)." Id. § 1926(a)(13) (emphasis added). Paragraph 1926(a)(19), which authorizes a grant program for community facilities, states that the grants may be awarded to "associations, units of general local government, nonprofit corporations, Indian tribes ... and federally recognized Indian tribes." Id. § 1926(a)(19)(A) (emphasis added). The next two paragraphs of the Act, § 1926(a)(20) and (21), in describing who is eligible for the grants in certain types of rural areas, list "associations, units of general local government, nonprofit corporations, and Indian tribes." Id. § 1926(a)(20)(B), (21)(A) (emphasis added).

Paragraph 1926(a)(25) authorizes grants to "Tribal College[s] or Universit[ies]" so that those institutions can develop "essential community facilities." Id. § 1926(a)(25)(A). Finally, a different provision in the Act allows for grants or loans to "rural water supply corporations, cooperatives or similar entities, Indian tribes on Federal and State reservations and other federally recognized Indian tribes, and public agencies, to provide for the conservation, development, use, and control of water. ..." Id. § 1926c(a)(1) (emphasis added).

In sum, Indian tribes are explicitly included within the scope of seven provisions of the Rural Development Act, but they are not mentioned in § 1926(b)'s anti-curtailment provision. See 7 U.S.C. § 1926(b); id. § 1926(a)(1), (13), (19)-(21), (25); id. § 1926c(a)(1). "Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Duncan v. Walker, 533 U.S. 167, 173, 121 S.Ct. 2120, 2125, 150 L.Ed.2d 251 (2001) (alteration and internal quotation marks omitted); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63, 126 S.Ct....