McClendon v. U.S.

• Decision Date: 15 September 1989
• Docket Number: No. 88-5981,88-5981
• Citation: 885 F.2d 627
• Parties: Gilbert McCLENDON; Bernadine F. McClendon; Norman McDanel; Connie R. McDanel, Plaintiffs-Appellants, v. UNITED STATES of America; Colorado River Indian Tribal Council, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 627

885 F.2d 627

Gilbert McCLENDON; Bernadine F. McClendon; Norman McDanel;

Connie R. McDanel, Plaintiffs-Appellants, v. UNITED STATES of America; Colorado River Indian Tribal

Council, Defendants-Appellees.

No. 88-5981.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 11, 1989.

Decided Sept. 15, 1989.

Richard A. Del Guercio, Los Angeles, Cal., for plaintiffs-appellants.

John P. Lange, Denver, Colo., for U.S. of America.

Alletta d'A Belin, San Francisco, Cal., for Colorado River Indian Tribal Council.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER and NELSON, Circuit Judges, and PRO, ^* District Judge.

FLETCHER, Circuit Judge:

Appellants Gilbert and Bernadine McClendon and Norman and Connie McDanel (collectively, "McClendon") brought an action in U.S. District Court against the United States and the Colorado River Indian Tribal Council ("Tribe"), alleging that the Tribe breached the terms of a lease agreement. The district court dismissed the action for lack of subject matter jurisdiction. We affirm.

I. FACTS AND PROCEEDINGS BELOW

The lease agreement at issue in this case has its origins in a dispute over ownership of certain lands claimed on behalf of the Tribe. In 1972, the United States filed a complaint for ejectment against McClendon's predecessors-in-interest, Robert and Laura Clark. In that suit, the U.S. sought to establish permanent title, in trust for the Tribe, to certain lands in Riverside County, California. The Tribe and McClendon were not parties to the initial suit.

In 1974, the parties agreed to settle the case. According to McClendon, the settlement consisted of two key provisions: (1) the U.S. and the Tribe would obtain undisputed title to the lands; and (2) the Clarks would obtain a long-term lease of the lands at a favorable rental rate. McClendon claims that the lease permitted partial assignment of the Clarks' leasehold interest, as well as commercial/recreational use of portions of the property.

Having been informed of the agreement to settle, the district court dismissed the action with prejudice by order dated October 25, 1974. However, the parties took over two years to formulate the written settlement agreement. On April 13, 1977, a "Stipulation for Entry of Judgment and Filing of Findings of Fact and Conclusions of Law" was filed with the court. The stipulation included proposed findings of In 1984, the Clarks assigned a portion of their leasehold interest to McClendon. Following this assignment, McClendon signed a business lease with the Tribe governing this property. The terms of this 1984 lease were basically identical to the terms of the earlier Clark lease. McClendon then applied for, and received from the Tribe, various permits to construct a mobile home park. According to McClendon, during the course of construction the Tribe withdrew the previously issued permits and demanded submission of new development plans. McClendon also alleges that during the course of review of the new plans, the Tribe sought to increase the rent fixed by the lease, and to compel McClendon to abandon the mobile home project.

fact which reiterated that the U.S. owned in trust for the Tribe the land described therein. This document served as the basis for the district court's final judgment and accompanying findings of fact and conclusions of law. The lease between the Clarks and the Tribe was not mentioned in these documents.

McClendon then brought this action, seeking damages, a declaration that the Tribe's actions constitute a breach of the lease agreement, and injunctive relief. The district court dismissed the action for lack of subject matter jurisdiction on the basis of tribal sovereign immunity. It rejected McClendon's argument that sovereign immunity was waived through participation in the stipulated judgment entered into in settlement of the Clark lawsuit. It also noted that the stipulated judgment and accompanying findings contained no express reservation of district court jurisdiction over the lease, and that there is in these documents no reference of any sort to the Clark lease. Finally, the court found that the lease, itself, contains no waiver of sovereign immunity and that, in fact, the Clark lease documents were drafted specifically to avoid such waiver. McClendon filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. Sec. 1291. We review de novo the district court's conclusion that it lacks subject matter jurisdiction over this action. Peter Starr Prod. Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir.1986).

II. JURISDICTION OVER THE TRIBE

A. Tribal Sovereign Immunity

Because they are sovereign entities, Indian tribes are immune from unconsented suit in state or federal court. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978); Chemehuevi Indian Tribe v. California State Bd. of Equalization, 757 F.2d 1047, 1050 (9th Cir.), rev'd on other grounds, 474 U.S. 9, 106 S.Ct. 289, 88 L.Ed.2d 9 (1985); United States v. Oregon, 657 F.2d 1009, 1012 (9th Cir.1981). Indian tribes can waive their sovereign immunity. Id. at 1013. However, such waiver may not be implied, but must be expressed unequivocally. Martinez, 436 U.S. at 58, 98 S.Ct. at 1677. The issue of tribal sovereign immunity is jurisdictional in nature. Chemehuevi, 757 F.2d at 1051; Puyallup Tribe, Inc. v. Washington Dep't of Game, 433 U.S. 165, 172, 97 S.Ct. 2616, 2621, 53 L.Ed.2d 667 (1977).

McClendon asserts that the Tribe waived its sovereign immunity by initiating the 1972 suit against the Clarks. ¹ Stated another way, McClendon claims that "[i]f the District Court had subject matter jurisdiction to adjudicate the rights of the United Initiation of a lawsuit necessarily establishes consent to the court's adjudication of the merits of that particular controversy. By initiating the 1972 action, the Tribe accepted the risk that it would be bound by an adverse determination of ownership of the disputed land. However, the "terms of [a sovereign's] consent to be sued in any court define that court's jurisdiction to entertain the suit." Jicarilla Apache Tribe v. Hodel, 821 F.2d 537, 539 (10th Cir.1987) (quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976)). Thus, a tribe's waiver of sovereign immunity may be limited to the issues necessary to decide the action brought by the tribe; the waiver is not necessarily broad enough to encompass related matters, even if those matters arise from the same set of underlying facts.

                States as trustee and the Tribe as beneficiary to the claimed tribal lands occupied by the Clarks, then sovereign immunity of the United States and the Tribe is not an impediment to enforcement of Appellants' rights under the agreement settling the litigation."    Appellants' Reply Brief at 6
                

Jicarilla Tribe is instructive in this regard. The Jicarilla Tribe brought suit to cancel certain oil and gas leases on reservation lands awarded by the Department of the Interior. While that suit was pending, Dome Petroleum Corporation brought an independent action seeking to pay adjusted bonuses to preserve its interest in certain of these leases. The district court dismissed Dome's suit for lack of jurisdiction over the Jicarilla Tribe, and the court of appeals affirmed, noting:

Although the Tribe's filing of the Jicarilla litigation may have waived its immunity with regard to Dome's intervention in that suit, we cannot construe the act of filing that suit as a sufficiently unequivocal expression of waiver in subsequent actions relating to the same leases .... Waiver of immunity in the present action was not one of the terms of the Tribe's initial suit; it therefore cannot be made a party to this subsequent litigation.

Jicarilla Tribe, 821 F.2d at 539-40 (emphasis added). Thus, Jicarilla Tribe indicates that tribal initiation of litigation alone does not establish waiver with respect to related matters. The dispute over the lease agreement in this case is no more closely linked with the Tribe's underlying suit than was Dome's action to the Jicarilla Tribe's lease cancellation suit.

Similarly, we consistently have held that a tribe's participation in litigation does not constitute consent to counterclaims asserted by the defendants in those actions. See, e.g., Squaxin Indian Tribe v. Washington, 781 F.2d 715, 723 (9th Cir.1986) (neither tribe's initiation of suit for injunctive relief, nor tribe's continued sale of liquor while preliminary injunction in force, constituted waiver of sovereign immunity with respect to state's counterclaim for taxes allegedly due); Chemehuevi, 757 F.2d at 1053 (tribe's initiation of a suit for declaratory and injunctive relief against enforcement of California's cigarette tax as applied to tribal sales to non-Indian purchasers did not constitute waiver of the tribe's sovereign immunity with respect to California's counterclaim for taxes allegedly due). But see United States v. Oregon, 657 F.2d at 1014-16 (tribe's intervention to establish fishing rights constituted consent to district court's jurisdiction to issue and modify equitable decree which encompassed the tribe's rights). These cases are consistent with the conclusion in Jicarilla Tribe that a tribe's consent to suit through initiation of litigation may be limited in scope.

McClendon argues that the 1972 suit constituted a waiver of immunity against actions to enforce the terms of the lease agreement. McClendon relies particularly upon the rationale of United States v. Oregon, 657 F.2d at 1009, in which we held that an Indian tribe had manifested its consent to suit by intervening as a plaintiff in a suit brought by the United States against Oregon to establish the fishing rights of Indian tribes occupying the Columbia River basin. ² In that case, the district Eleven years after initial judgment was entered, the state of...