Romain v. Tunica-Biloxi Indians of Louisiana Tribal Council, (1998)

• Court: Tunica-Biloxi Tribal Court
• Writing for the Court: KATHRYN FOWLER VAN HOOF TRIBAL JUDGE
• Decision Date: 01 October 1998
• Docket Number: 98-017,98-018
• Citation: Romain v. Tunica-Biloxi Indians of Louisiana Tribal Council (Tunica-Biloxi Tribal Ct. 1998)
• Parties: MELANIE ST. ROMAIN, ET AL. v. TUNICA-BILOXI INDIANS OF LOUISIANA TRIBAL COUNCIL TUNICA-BILOXI INDIANS OF LOUISIANA TRIBAL COUNCIL TUNICA-BILOXI INDIANS OF LOUISIANA TRIBAL COUNCIL MELANIE ST. ROMAIN

MELANIE ST. ROMAIN, ET AL. v. TUNICA-BILOXI INDIANS OF LOUISIANA TRIBAL COUNCIL

TUNICA-BILOXI INDIANS OF LOUISIANA TRIBAL COUNCIL TUNICA-BILOXI INDIANS OF LOUISIANA TRIBAL COUNCIL MELANIE ST. ROMAIN

Nos. 98-017, 98-018

Tunica-Biloxi Tribal Court Tunica-Biloxi Nation

October 1, 1998

WRITTEN REASONS AND JUDGMENT

KATHRYN FOWLER VAN HOOF TRIBAL JUDGE

This matter arises out of two separate causes of action. Plaintiffs in Docket No. 98-017, MELANIE ST. ROMAIN, et al (hereinafter referred to as "St. Romain") seek damages and injunctive relief against defendant TUNICA-BILOXI INDIANS OF LOUISIANA TRIBAL COUNCIL (hereinafter referred to as "Tribal Council") to prohibit the removal of a mobile home from tribal-owned property or, alternatively, damages for detrimental reliance. St. Romain also filed a separate action against certain members of the Tribal Council, alleging liability for any action taken outside their official capacities. Plaintiff in Docket No. 98-018, the Tribal Council, seeks an injunction against St. Romain, prohibiting the placement of the mobile home on tribal-owned property and ordering the removal of the home.

The Tribal Council filed an exception of lack of subject matter jurisdiction in St. Romain's action, asserting the sovereign immunity of the Tunica-Biloxi Tribe from suit. St Romain argues that the Tribe cannot assert sovereign immunity in its own tribal court, that sovereign immunity is not a bar to claims under the Indian Civil Rights Act, and further, that any council member acting outside their official capacity would not be entitled to raise sovereign immunity as a defense to suit.

Pursuant to agreement of counsel, both matters were consolidated for purposes of the hearing on September 11, 1998, in order to determine the issues of subject matter jurisdiction and injunctive relief.

The Tribe is a sovereign Indian Nation and recognized as such by the United States of America. As noted by the U. S. Supreme Court in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 118 S.Ct. 1700 (1998), the Tribe is entitled to sovereign immunity from suit as a matter of well-settled federal law:

"As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity. See Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 890, 106 S.Ct. 2305, 2312-2313, 90 L.Ed.2d 881 (1986); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1676-1677, 56 L.Ed.2d 106 (1978); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940)"

There has been no showing that the Tribe waived sovereign immunity as it applies to this case. Further, the Tribe did not waive sovereign immunity by the filing of the action for injunctive relief against St. Romain. An independent jurisdictional basis is required for the Court to hear the claims of St. Romain against the Tribe, whether by petition for damages and injunctive relief in Docket No. 98-017 or by reconventional demand in Docket No. 98-018. See Oklahoma Tax Commission v. Citizen Band Potawalomi Indian Tribe of Oklahoma, 111 S.Ct. 905 (1991) wherein separate grounds for jurisdiction were required in order for the court to hear a counterclaim against a Tribe, even though the counterclaim was considered "compulsory" under Federal Rule of Civil Procedure 13(a).

The Tribe has not waived its sovereign immunity from an action that could not otherwise be brought against it, whether pleaded in an original petition or as a reconventional demand brought against the Tribe. See United States v. United States Fidelity & Guaranty Co., 60 S.Ct. 653, 655-656 (1940). Generally, the Tribe is immune from direct suit and the Tribe is immune from the reconventional demand.

Generally, sovereign immunity also bars the plaintiffs' claims against the Tribal Council and its members, acting within their official capacities, since suit against the Tribal Council is, in effect, a suit against the Tribe. Kentucky v. Graham, 473 U.S. 159, 166 (1985); Monell v. Department of Social Services, 436 U.S. 658, 691 (1978); United States v. USF&G, 309 U.S. 506, 512-13, 60 S.Ct. 653 (1940).

But plaintiffs also allege, in reconventional demand filed in Docket No. 98-018, that a cause of action exists against the Tribe which arises out of violations of the Indian Civil Rights Act. Specifically, plaintiffs allege a denial of equal protection of law and due process of law under the Act. The Indian Civil Rights Act does apply to tribal proceedings and a claim of sovereign immunity does not bar suit under the Act. 25 U.S.C. 1302.

Rudolph H. Wambsgans III, tribal council member, testified that Exhibits 16 through 18, offered by the Tribal Council, reflect existing council policy regarding the placement of new mobile homes on tribal property in designated areas only. These exhibits show that other tribal members have requested permission to place a mobile home in the same area at issue herein and those requests have also been denied.

Tribal members Cynthia Bridges, Melissa Barbin and David Jackson testified that, in August, 1997; May, 1998; and December, 1997, respectively, they requested initial permission to place a mobile home in a non-designated area on tribal property and were assigned, instead, to the designated mobile home area.

St. Romain does not dispute the testimony offered on behalf of the Tribal Council in this regard and offered no contrary evidence. St. Romain does argue, however, that mobile homes were placed in the now non-designated areas at one time, prior to the establishment of the policy.

The facts of this case are very similar to those in Berry v. Arapaho and Shoshone Tribes, 420 F.Supp. 934 (D. Wyo. 1976) wherein the Tribe denied a liquor license to new applicants in accordance with new policy regarding the prohibition of alcohol sales on the reservation. Although such licenses had been granted prior to the policy change, the federal court determined that no denial of equal protection had occurred because the policy was applied uniformly to all persons similarly situated.

Likewise St. Romain has failed to establish that she was treated differently from other persons similarly situated. The evidence presented at the hearing supports a finding that St. Romain and all others who request...