Morgan v. Colorado River Indian Tribe, 1

• Decision Date: 24 January 1968
• Docket Number: No. 1,CA-CIV,1
• Parties: Adrian F. MORGAN, Administrator of the Estate of Teresa Ann Morgan, Deceased, Appellant, v. The COLORADO RIVER INDIAN TRIBE, an organized Indian Tribe, Appellee. 379.
• Court: Arizona Court of Appeals

Page 484

436 P.2d 484

7 Ariz.App. 92

Adrian F. MORGAN, Administrator of the Estate of Teresa Ann Morgan, Deceased, Appellant, v. The COLORADO RIVER INDIAN TRIBE, an organized Indian Tribe, Appellee.

No. 1 CA-CIV 379.

Court of Appeals of Arizona.

Jan. 24, 1968.

Rehearing Denied Feb. 21, 1968.

Review Granted March 19, 1968.

Caine, Brigham & Hocker, Tempe, by, R. Kelly Hocker, Tempe, for appellant.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by, John H. Lyons and Robert G. Beshears, Phoenix, for appellee.

CAMERON, Chief Judge.

This is an appeal by the administrator of the estate of Teresa Ann Morgan, deceased, from an order of the trial court granting the motion of the defendant-appellee, Colorado River Indian Tribe, to dismiss as to said Indian tribe on the basis of sovereign immunity.

The sole question presented to this Court is whether or not the Colorado River Indian Tribe in its operation of a commercial enterprise is amenable to civil suit in the courts of the State of Arizona in which state the reservation is located and the alleged tort was committed.

The facts necessary for a determination of this matter on appeal are as follows. On 18 August 1964 one of the defendants, Ralph Ramsey, Jr., was operating a motor boat on the Colorado River and towing water-skiiers in the vicinity of the Blue Water Marina Park owned and operated by the tribe as a commercial enterprise. Around 2:30 in the afternoon Ramsey and his passenger in the boat, who was being used as a 'spotter', began towing a waterskiier. After proceeding down the river Ramsey turned his boat towards the Arizona side of the river in order to permit the skiier to land at the park. The skiier was a beginner, and as a result of the turn she was forced to cross the wake caused by the motor boat. In crossing the wake the skiier fell, and Ramsey was informed of this by his 'spotter'. After the skiier fell, Ramsey turned to the rear in order to spot the location of the skiier. Immediately thereafter the 'spotter' saw an arm and hand in the water, directly in back of the boat. The boat had struck and killed Teresa Ann Morgan. The area of the park where the decedent was struck had been used for swimming, however, the area was neither posted nor roped off prohibiting boats from entering the area.

A wrongful death action was brought in the Yuma County Superior Court of the State of Arizona by the appellant against the owner of the boat, the 'spotter', and the appellee, Colorado River Indian Tribe. The tribe, as the owner and operator of the park, was sued on the theory of negligence in maintaining the resort, and failing to provide a safe area for swimmers. The tribe moved to dismiss on sovereign immunity which motion was granted and from said order the estate appeals.

The Colorado River Indian Tribe was created by an act of Congress approved on 3 March 1865 (Statutes At Large, Vol. 13, page 559). The geographic limits of the reservation were defined in an Executive Order issued 15 May 1876 and encompassed both sides of the Colorado River. The Blue Water Marina Park is located on the Arizona side of the Colorado River upon reservation land, and the facts are sufficient from which the court could find that the accident in question occurred on that portion of the river which is encompassed by the external boundaries of the reservation.

The relationship of Indian tribes to the states in which they are located has plagued the courts since 1832 when Chief Justice Marshall in Worcester v. State of Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832) stated that the Indian nations were distinct political communities and therefore states had no jurisdiction over Indians in Indian country without the necessary congressional legislation. The law is clear today that civil and criminal jurisdiction by the states over reservation Indians is allowed only under such circumstances as the Congress may direct. Organized Village of Kake v. Egan, 396 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962).

'* * * An Indian tribe is not subject to suit without the consent of Congress. Nor may a tribe be sued indirectly by suing its tribal officers or the United States as trustee or guardian of the tribe. No law has been cited and none can be found which would subject the Crow Tribe to a suit of the nature involved in this action.' Barnes v. United States, D.C., 205 F.Supp. 97, 100 (1962).

And:

'Indian nations, as an attribute of their quasi-sovereignty, are immune from suit, either in the federal or state courts, without Congressional authorization.' Maryland Casualty Company v. Citizens National Bank of West Hollywood, 5 Cir., 361 F.2d 517, 520 (1966). See also Native American Church of North America v. Navajo Tribal Council, 10 Cir., 272 F.2d 131 (1959); Colliflower v. Garland, 9 Cir., 342 F.2d 369 (1965); Haile v. Saunooke, 4 Cir., 246 F.2d 293 (1957); Crosse, Criminal and Civil Jurisdiction in Indian Country, 4 Ariz.L.Rev. 57, Kane, Jurisdiction Over Indians and Indian Reservations, 6 Ariz.L.Rev. 237, Reynolds, Notes, 5 Ariz.L.Rev. 131.

The Congress of the United States in recent years has enlarged the area wherein civil and criminal jurisdiction over reservation Indians can be maintained by the states, and from reading the cases and statutes it appears that the Congress of the United States has provided three methods whereby the state courts can obtain jurisdiction over reservation Indians and Indian tribes in civil matters.

The first and probably the most direct method is contained in 28 U.S.C. § 1360 which is a direct grant of authority to the states reading in part as follows:

'(a) Each of the States or Territories listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over other civil causes of action, and those civil laws of such State or Territory that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory.'

Neither the State of Arizona nor the Colorado River Indian Tribe are listed in 1360 of...