Red Lake Band of Chippewa Indians v. U.S.

• Decision Date: 05 September 1986
• Docket Number: No. 85-5733,85-5733
• Citation: 800 F.2d 1187
• Parties: RED LAKE BAND OF CHIPPEWA INDIANS, et al., Appellants, v. UNITED STATES of America.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1187

800 F.2d 1187

255 U.S.App.D.C. 162

RED LAKE BAND OF CHIPPEWA INDIANS, et al., Appellants, v. UNITED STATES of America.

No. 85-5733.

United States Court of Appeals, District of Columbia Circuit.

Argued May 9, 1986.

Decided Sept. 5, 1986.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-03193).

Harry R. Sachse, Washington, D.C., for appellants.

Michael J. Ryan, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on brief for appellee.

Before EDWARDS and BORK, Circuit Judges, and KOZINSKI, ^* Circuit Judge, United States Court of Appeals for the Ninth Circuit.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

Some 4500 members of the Chippewa tribe live on the Red Lake Reservation located in northwest Minnesota. The Red Lake Band of Chippewa Indians and three of its members filed this lawsuit against the United States government, seeking compensation under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-2680 (1982), for property damage arising out of the events of May 19, 1979. In the early morning of that day, a group of dissident tribal members seized several hostages in protest against actions taken by the Chairman of the Red Lake Tribe, Roger Jourdain. The hostages were eventually freed, but by the time the day ended the dissidents had caused considerable destruction of property on the reservation, including burning Jourdain's house to the ground.

The Red Lake Tribe claims that the damage was attributable to the negligence of federal law enforcement officers, in particular to the negligence of an FBI agent who temporarily took charge of law enforcement efforts at the reservation during the disturbance. They seek damages for the property lost as a result of what they consider to be the inept management of this crisis. On cross-motions for summary judgment, the district court denied plaintiffs' motion and granted that of defendant, finding as a matter of law that the actions taken by the federal officers were reasonable and not negligent. For the reasons set forth below, we vacate the summary judgment in part and remand this case to the district court for trial of the issues involved.

I.

We begin by describing the events on the day of the uprising. All of the facts set forth below are taken from the Joint Statement of Material Facts as to Which There is No Genuine Issue ("Joint Statement"), to which both parties have agreed. Joint Appendix ("J.A.") at 15a-37a.

In May of 1979, responsibility for law enforcement on the Red Lake Reservation lay with the Bureau of Indian Affairs ("BIA"), which maintained a police force headed by Officer Robert McMullen on the reservation. This police force was a participant in the Northwest Minnesota Law Enforcement Task Force, a regional group of law enforcement officers that provided additional manpower for participating local agencies in the event of a crisis. When members of the Task Force were dispatched to a locality, they were placed under the command of the head of the local agency; at Red Lake, that was McMullen.

Robert Erwin, who committed most of the acts alleged to be negligent, was not employed by the BIA. He was the senior resident agent of the Federal Bureau of Investigation in Grand Forks, North Dakota, the FBI office closest to Red Lake. The parties have stipulated that "[t]he FBI's statutory mandate was to investigate federal crimes and not to quell civil disturbances or to protect life and property on Indian reservations." Joint Statement at 2, J.A. at 16a.

The revolt on May 19 was precipitated by the firing of the tribal treasurer, Stephanie Hanson, who had criticized Chairman Jourdain's management of tribal affairs, and more generally by an ongoing dispute over tribal matters between Jourdain and other members. On Friday, May 18, McMullen was warned by a tribal judge that there would be trouble on the weekend as a result of the firing of Stephanie Hanson, and McMullen therefore assigned two additional officers to his command for May 19 and 20.

At approximately 4:45 a.m. on the morning of May 19, a group of approximately five armed men, led by tribal member Harry Hanson, entered the Red Lake Law Enforcement Center ("LEC") and took over the building. There were eight officers on duty at the LEC that morning, and when the Hanson group entered, those officers were shooting pool and playing cards. The Hanson group took as hostages two of the BIA officers, a police dispatcher, and two BIA jailers, locking them in one of their own jail cells. They also took several police weapons for their own use.

Five of the BIA officers were able to avoid being taken hostage. They left the LEC in the midst of the takeover, and two of them went to inform McMullen of what had occurred. McMullen then notified the dispatcher at the Beltrami County Sheriff's Office. He reported the situation and requested assistance, and also asked that the FBI be told about the takeover.

At approximately 6:00 a.m., McMullen ordered several of his men to approach the LEC from the south. As they did so, they saw Hanson and others in his group fire guns into the air. Hanson began to move in the direction of the officers, and there was an exchange of fire. Hanson and the other dissidents ran back to the LEC.

At approximately 7:00 a.m., McMullen and the officers who had approached the LEC retreated to a building referred to as "the Mission," where they established a temporary command post. McMullen spoke at this time to one of the dissidents on his car radio, and was told that the hostages would not be harmed as long as the dissidents were not.

At approximately 9:00 a.m., in response to McMullen's request for assistance, seventeen additional officers arrived at the reservation: Beltrami County Sheriff Tom Tolman and five of his deputies, and Bemidji Police Chief David Simondet and ten of his officers. Tolman and McMullen conferred at the Mission and decided to erect roadblocks at four key intersections in order to contain the disturbance by confining the dissidents to the area surrounding the LEC and keeping other people away.

At approximately 9:00 or 9:30 a.m., shortly after the roadblocks had been established, the dissidents fired upon them. McMullen ordered one of the roadblocks pushed back about 150 yards in order to protect the officers. He did not tighten the perimeter around the LEC because he feared that would result in a gun battle, endangering the lives not only of the officers involved but also of the bystanders who had been gathering (in spite of the roadblocks).

At approximately 9:30 a.m., FBI Agent Erwin went to the town of Red Lake. He had been dispatched by David Brumble, Special Agent in Charge of the Minneapolis division of the FBI, who had ordered Erwin to the reservation to assess the hostage situation and to take charge of the four other FBI agents who had been sent there. He had not ordered Erwin to take charge of all law enforcement activities on the reservation or to take command of the local officers. Erwin did not have authority over either the BIA officers or the reinforcements from the other local agencies.

At approximately 9:50 a.m., Erwin located FBI Agent Aldridge, Chief Simondet, and Herbert McNeal, the father of one of the dissidents, on the "Back of Town" road south of the Mission. Erwin and McNeal then proceeded to a home about a quarter mile away from the LEC, looking for Stephanie Hanson.

At the time Erwin first arrived at the reservation, between 9:00 and 9:30 a.m., McMullen and Sheriff Tolman were at the Mission. They stayed there until approximately 10:15 a.m., and, shortly before 11:00 a.m., they went to the BIA building to establish a permanent command post. Throughout the morning, they were in contact with the Beltrami County police dispatcher and informed him periodically of their whereabouts. Erwin had been informed by 9:10 a.m., that McMullen and Tolman were at the Mission, but did not travel there to look for them. He made some effort to contact them by radio and telephone, but was unsuccessful. The telephone number he used had been given him by a local officer after his arrival at the reservation. Erwin had been told that this number belonged either to the BIA building or the tribal office building. Erwin could not reach anyone at that phone number, and radio contact was impossible because Tolman's car radio had begun to malfunction. Erwin did not himself go to either the BIA building or the tribal office building, he did not send anyone to those buildings, and he did not contact Tolman's or McMullen's headquarters to obtain further information on their whereabouts.

At approximately 11:00 a.m., Erwin heard reports over Chief Simondet's radio that men at the roadblock were taking more gunfire. He again attempted to contact McMullen and Tolman by radio, but was unsuccessful. He did not try to telephone them, nor did he attempt to contact their headquarters. Erwin then directed Chief Simondet to order all law enforcement personnel to withdraw from their positions and assemble on Highway 89. This order was transmitted to all officers in radio communication with Chief Simondet. The parties stipulated that Erwin:

ordered the withdrawal of law enforcement personnel primarily for their safety after hearing reports of intensified gunfire and because of the lack of communication with other law enforcement authorities on the scene. He intended by the withdrawal to gather all law enforcement officers together in order to assess their strength and to devise a plan of action.

Joint Statement at 17, J.A. at 31a. The withdrawal order was obeyed.

At approximately noon, after the order to withdraw had been issued, the Hanson group set the LEC on fire with the hostages inside. The police garage, approximately fifty feet away, had been set on fire an hour and a half...