Nord v. Kelly

• Decision Date: 04 April 2008
• Docket Number: No. 07-1564.,07-1564.
• Parties: Chad Dennis NORD; Dennis Nord, d/b/a Nord Trucking, Appellees, v. Donald Michael KELLY; Red Lake Nation Tribal Court, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

520 F.3d 848

Chad Dennis NORD; Dennis Nord, d/b/a Nord Trucking, Appellees, v. Donald Michael KELLY; Red Lake Nation Tribal Court, Appellants.

No. 07-1564.

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2007.

Filed: April 4, 2008.

Thomas John Peckham, argued, Alan R. Taradash, Doreen N. Hobson, Rodina C.

Cave, Jennifer J. Dumas, on the brief, Albuquerque, NM, Gary M. Hazelton, Bemidji, MN, on the brief, for Appellants.

Roger Herbert Gross, argued, Timothy J. Crocker, on the brief, Minneapolis, MN, Charles R. Powell, Bemidji, MN, on the brief, for Appellees.

Before MURPHY, HANSEN, and GRUENDER, Circuit Judges.

HANSEN, Circuit Judge.

Donald Michael Kelly and the Red Lake Nation Tribal Court ("Tribal Court") appeal the district court's¹ grant of summary judgment to Chad Dennis Nord and his father Dennis Nord, doing business as Nord Trucking (collectively, "the Nords") in this declaratory judgment action. The district court determined that the Tribal Court lacked jurisdiction over a suit against a non-Indian, nonmember of the Tribe arising from an automobile accident on a state highway within the reservation. We affirm.

I.

In this summary judgment context, we view the facts and their permissible inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); County of Mille Lacs v. Benjamin, 361 F.3d 460, 463 (8th Cir.), cert, denied, 543 U.S. 956, 125 S.Ct. 454, 160 L.Ed.2d 318 (2004). On December 16, 2000, Chad Nord, a non-Indian, was driving a semi-truck owned by Nord Trucking when he collided with an automobile driven by Donald Kelly, a member of the Red Lake Band of Chippewa Indians ("Red Lake Band"). The accident occurred on a stretch of Minnesota Highways 1 and 89, located within the boundaries of the Red Lake Indian Reservation in northern Minnesota. Tribal law enforcement authorities and a tribal ambulance service responded to the accident.

Minnesota Department of Transportation records indicate that, in 1955, the State of Minnesota ("the State") submitted an application and stipulation to the Department of the Interior's Bureau of Indian Affairs for federal approval of a right-of-way to construct a state public highway on the stretch of road at issue. Certified records of the Bureau of Indian Affairs-Land Titles & Records Office include an approved map of the right-of-way, a copy of the State's application and stipulation, and reference to a tribal resolution waiving payment for the land. The Red Lake Band General Council's unanimously approved resolution, dated April 1955, shows that the Red Lake Band considered the State's application for a right-of-way, consented to waive damages to tribal land in light of the benefit conferred by the road improvement, and required the State to pay damages to individual tribal members in exchange for the right-of-way.

In September 2001, Kelly sued the Nords in Tribal Court, seeking damages for personal injuries sustained in the accident. The non-Indian Nords filed a motion to dismiss for lack of jurisdiction, citing Strate v. A-1 Contractors, 520 U.S. 438, 442, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) (holding "tribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question"). The Tribal Court did not rule on the motion to dismiss until September 28, 2005, when it ultimately determined that it had jurisdiction over the dispute. In the meantime, the Nords had filed an action in federal court for a declaratory judgment that the Tribal Court lacked jurisdiction. The parties stipulated to a stay of the federal court action pending resolution of the Tribal Court appeal. The stay was lifted in early February 2006 after the Red Lake Court of Appeals affirmed the Tribal Court's determination that it had jurisdiction.

The Tribal Court then moved the federal district court to dismiss the declaratory judgment action and to stay discovery pending resolution of the motion to dismiss. The Nords filed a motion for summary judgment, arguing that the Tribal Court lacked jurisdiction over Kelly's suit against them. The Tribal Court moved alternatively for a continuance of the summary judgment hearing in order to permit discovery pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. The district court granted summary judgment to the Nords and denied the Tribal Court's motions. The Tribal Court and Kelly² appeal the adverse grant of summary judgment.

II.

We review de novo the district court's grant of summary judgment, applying the same standards as the district court. Plains Commerce Bank v. Long Family Land & Cattle Co., 491 F.3d 878, 884 (8th Cir.2007), cert, granted, ___ U.S. ___, 128 S.Ct. 829, 169 L.Ed.2d 626 (2008). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c). We review for an abuse of discretion the district court's refusal to allow further discovery prior to ruling on a motion for summary judgment. Conner v. Reckitt & Colman, Inc., 84 F.3d 1100, 1103 (8th Cir.1996). The district court does not abuse its discretion in denying a continuance and further discovery where the nonmoving party is not deprived of a fair chance to respond to the summary judgment motion. See Iverson v. Johnson Gas Appliance Co., 172 F.3d 524, 530 (8th Cir.1999). Determining the extent to which an Indian tribe has the power to compel a non-Indian to submit to the civil jurisdiction of a tribal court is a question of federal law, Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 852, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985), and we review the issue de novo, Plains Commerce Bank, 491 F.3d at 884.

This case is controlled by the Supreme Court's decision in Strate, holding that "tribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question." 520 U.S. at 442, 117 S.Ct. 1404. The Court's analysis in Strate began with the general and well-established proposition that "absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances." Id. at 445, 117 S.Ct. 1404; see also id. at 453, 117 S.Ct. 1404 ("As to nonmembers ... a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction," absent congressional direction otherwise.). The Court explained that, while "tribes retain considerable control over nonmember conduct on tribal land," id. at 454, 117 S.Ct. 1404, generally, in the absence of a statute or treaty authorizing otherwise, and subject to two limited exceptions "Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation," id. at 446, 117 S.Ct. 1404. This general rule was set forth in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), which the Court in Strate referred to as "the pathmarking case concerning tribal civil authority over nonmembers." 520 U.S. at 445, 117 S.Ct. 1404.

The Court in Strate determined that the state highway at issue was the equivalent of non-Indian fee land for purposes of determining the tribe's jurisdiction over nonmembers, subject to the general rule of Montana, and found that neither of Montana's exceptions applied. The Montana exceptions provide that "Indian tribes retain inherent sovereign powers to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands" in the following circumstances: (1) to "regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe, or its members, through commercial dealing[s]" and (2) "to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." 450 U.S. at 565-66, 101 S.Ct. 1245. "Both Montana and Strate rejected tribal authority to regulate nonmembers' activities on land over which the tribe could not assert a landowner's right to occupy and exclude." Nevada v. Hicks, 533 U.S. 353, 359, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (internal marks omitted). But see id. at 360, 121 S.Ct. 2304 (cautioning that "[t]he ownership status of land ... is only one factor to consider in determining whether regulation of the activities of nonmembers is 'necessary to protect tribal self-government or to control internal relations,' though `[i]t may sometimes be a dispositive factor'" (quoting Montana, 450 U.S. at 564, 101 S.Ct. 1245)). These Supreme Court precedents indicate that, in applying the Montana exceptions, the key concept is that tribal authority to regulate nonmember activities exists where it is "`necessary to protect tribal self-government or to control internal relations.'" Id. at 360, 121 S.Ct. 2304 (quoting Montana, 450 U.S. at 564, 101 S.Ct. 1245); see also Strate, 520 U.S. at 459, 117 S.Ct. 1404.

The district court determined that the facts of the present case are on all fours with Strate, and we agree. In Strate, as here, the dispute involved claims against a non-Indian³ arising out of an automobile accident that occurred on a state highway within an Indian reservation on land in North Dakota held in trust for the Three Affiliated Tribes ("the Tribes"). The Court considered the federally granted right-of-way for the highway, finding that tribal officials had consented to the right-of-way, the Tribes had received just compensation, the purpose of the right-of-way was to...