National Farmers Union Ins. Companies v. Crow Tribe of Indians

• Decision Date: 03 July 1984
• Docket Number: P,No. 27,Nos. 83-3606,83-3645,27,s. 83-3606
• Citation: 736 F.2d 1320
• Parties: 18 Ed. Law Rep. 321 NATIONAL FARMERS UNION INSURANCE COMPANIES, a Utah corporation, and Lodge Grass School Districtlaintiffs-Appellees, v. CROW TRIBE OF INDIANS, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1320

736 F.2d 1320

18 Ed. Law Rep. 321

NATIONAL FARMERS UNION INSURANCE COMPANIES, a Utah

corporation, and Lodge Grass School District No.

27, Plaintiffs-Appellees,

v.

CROW TRIBE OF INDIANS, et al., Defendants-Appellants.

Nos. 83-3606, 83-3645.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 6, 1983.

Decided July 3, 1984.

Rodney T. Hartman, Herndon, Harper & Munro, Billings, Mont., for plaintiffs-appellees.

Scott McElroy, Thomas R. Acevedo, Fredericks & Pelcyger, Boulder, Colo., for Crow Tribe.

Clarence T. Belue, Hardin, Mont., for Sage and Not Afraid.

Appeal from the United States District Court for the District of Montana.

Before WRIGHT, ANDERSON and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

In May of 1982, Leroy Sage, a minor and an enrolled member of the Crow Indian Tribe, was struck by a motorcycle while in the parking lot of Lodge Grass School District No. 27. The School District is located on land owned by the State of Montana and within the exterior boundaries of the Crow Indian Reservation. Sage and his guardian, Flora Not Afraid, filed a negligence suit against the school district in Crow Tribal Court. Tribal process was served on the chairman of the school board, but the school district failed to answer Sage's complaint or to appear in tribal court to contest its jurisdiction. Sage ultimately obtained a default judgment against the school district. Upon receiving notice of the default judgment, the school district notified its insurer, National Farmers Union Insurance (National), of the tribal suit. Neither the school district nor National contested the default judgment in Crow Tribal Court, see Crow Tribal R.Civ. 17, or sought an appeal to the Crow Tribal Court of Appeals, see Crow Tribal Code Sec. 31-1-103; Crow Tribal R.App.2. Instead, National obtained a temporary restraining order from a federal district court prohibiting Sage from enforcing his The district court held that it had jurisdiction over the suit under 28 U.S.C. Sec. 1331 (1976), ² and ruled that National's claim arose under federal common law. See National Farmers Union Insurance v. Crow Tribe of Indians, 560 F.Supp. 213, 214-15 (D.Mont.1983). National's complaint alleged that the tribal court violated the federal constitution and the Indian Civil Rights Act, 25 U.S.C. Secs. 1301-41 (1976) (ICRA), by asserting jurisdiction over the school district. The district court declined to decide whether allegations of deprivation of constitutional rights or violations of the Indian Civil Rights Act stated a claim for federal relief. See 560 F.Supp. at 215 & n. 1. Instead, the court ruled that the allegation that a tribal court had improperly exercised its jurisdiction stated a federal common law claim, because "[t]he necessity of a proper forum wherein the extent of tribal court jurisdiction can be determined can hardly be overemphasized." Id. at 215. Proceeding to the merits of National's claim, the court held that the Crow Tribal Court lacked subject matter jurisdiction over Sage's suit and, therefore, entered a permanent injunction. ³

                default judgment, and filed suit against the Crow Tribe, the Crow Tribal Council, the Crow Tribal Court, tribal judges and the chairman of the tribal council, seeking a permanent injunction. 1   On December 29, 1982, the district court entered a permanent injunction prohibiting Sage, Not Afraid, their counsel, the tribal judges and the chairman of the tribal council from executing on any judgment or pressing any claim against National or the school district arising from Sage's injury.  We reverse
                

In R.J. Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979, 981-82 (9th Cir.1983), decided after the district court's decision in this case, we held that a complaint challenging a tribal court's assertion of jurisdiction over a non-Indian defendant in a civil suit stated no federal claim for relief. We conclude that R.J. Williams controls this case. Accordingly, we reverse.

DISCUSSION

National's complaint, as amended, alleges that the tribal court's exercise of jurisdiction over its insured deprived it of due process and equal protection. Indian Tribes are not constrained by the provisions of the fourteenth amendment. See R.J. Williams, 719 F.2d at 982; Trans-Canada Enterprises, Ltd. v. Muckleshoot Indian Tribe, 634 F.2d 474, 476-77 (9th Cir.1980). National's due process and equal protection claims cannot, therefore, arise under the Constitution. R.J. Williams, 719 F.2d at 981. Tribes are, however, bound by the provisions of the ICRA. Id. The ICRA requires tribal courts to exercise their jurisdiction in a manner consistent with due process and equal protection. 25 U.S.C. Sec. 1302(8). Congress has expressly limited federal court review of a claimed violation of the ICRA to encompass a single remedy: the writ of habeas corpus. 25 U.S.C. Sec. 1303. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 66-70, 98 S.Ct. 1670, 1681-1683, 56 L.Ed.2d 106 (1977); Boe v. Fort Belknap Indian Community, 642 F.2d 276, 278 (9th Cir.1981). A civil suit to enjoin violations of the ICRA is not cognizable in federal court. Santa Clara Pueblo, 436 U.S. at 67-70, 98 S.Ct. at 1681-1683; accord R.J. Williams, 719 F.2d at 981. Neither the constitution nor the ICRA provides a basis for a federal cause of action.

National urges us, however, to recognize a cause of action arising under federal common law that would permit a civil suit to enjoin the proceedings of a tribal court. National's argument has superficial appeal. It invokes authority holding that a complaint challenging tribal abuse of its civil regulatory jurisdiction states a claim arising under federal common law. See, e.g., Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 591 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1707, 80 L.Ed.2d 180 (1984); Cardin v. De La Cruz, 671 F.2d 363, 365, cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982). The Supreme Court relied on principles of federal common law to determine whether a tribal court had exceeded its jurisdiction in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). The question whether a tribe has abused its adjudicatory jurisdiction seems, at first glance, to be as appropriate as a question involving tribal regulatory jurisdiction for resolution in a suit brought in federal court.

Oliphant v. Suquamish Indian Tribe, however, came to the federal courts by way of a petition for habeas corpus. See 435 U.S. at 194, 98 S.Ct. at 1013. Congress, when it enacted the ICRA, purposefully restricted federal court interference with the proceedings of tribal courts to review on petitions for habeas corpus. See Santa Clara Pueblo, 436 U.S. at 67-70, 98 S.Ct. at 1681-1683. In asking that we recognize a civil cause of action arising under federal common law, National is requesting that we supplement a remedy Congress intended to be exclusive, and that we do so without statutory authority. ¹

The judicial recognition of a cause of action arising under federal common law is an unusual course, to be approached cautiously. Milwaukee v. Illinois, 451 U.S. 304, 312-14, 101 S.Ct. 1784, 1789-91, 68 L.Ed.2d 114 (1981). In view of Congress's manifest purpose to limit the intrusion of federal courts upon tribal adjudication, see Santa Clara Pueblo, 436 U.S. at 67-70, 98 S.Ct. at 1681-1683, we decline to recognize a common law cause of action in addition to the limited remedies available under the ICRA. We conclude that National may not assert its claim as one arising under common law. National's complaint must be dismissed for failure to state a claim for federal relief. ⁵

The district court was rightly concerned that there must be a "proper forum wherein the extent of tribal court jurisdiction can be determined ...." 560 F.Supp. at 215. However, the proper forum for this determination, at least in the first instance, ⁶ is not a federal court but a tribal court. See Santa Clara Pueblo, 436 U.S. at 65, 98 S.Ct. at 1680; R.J. Williams, 719 F.2d at 983.

REVERSED.

EUGENE A. WRIGHT, Circuit Judge, dissenting in part and concurring in the result:

I agree that we must reverse but dissent from the holding that we lack subject matter jurisdiction. Instead, I would hold that the plaintiffs stated a federal common law cause of action, but would dismiss because they failed to exhaust tribal remedies.

I.

The court holds today that, while a plaintiff may state a federal common law cause of action for tribal abuse of its regulatory jurisdiction, it may not state a cause of action for abuse of its adjudicatory jurisdiction. This distinction lacks foundation in law or policy.

We have held that "the extent to which treaties and federal case law divest [a] tribe of the power to exercise civil jurisdiction over non-Indians" presents a federal question under 28 U.S.C. Sec. 1331 (1982). Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 591 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1707, 80 L.Ed.2d 180 (1984). Accord, Cardin v. De La Cruz, 671 F.2d 363, 365 (9th Cir.1982), cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982).

It is clear too that a plaintiff may state a federal cause of action for improper taxation by an Indian tribe. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982); Snow v. Quinault Indian Nation, 709 F.2d 1319, 1321 (9th Cir.1983), cert. denied, 81 U.S. 362, 104 S.Ct. 2655, --- L.Ed.2d ---- (1984).

The majority distinguishes these cases by noting that they all concerned alleged abuses of tribal regulatory jurisdiction, while our case concerns action by a tribal court. This distinction cannot be found in the cases and rests upon a strained reading of their facts.

Both Babbitt Ford and Cardin involved underlying actions in tribal courts against non-Indians. In Babbitt Ford, the tribal court held the non-Indian violated a tribal repossession...