Rupp v. Omaha Indian Tribe
| Decision Date | 09 March 1995 |
| Docket Number | 93-3106,Nos. 93-3103,s. 93-3103 |
| Citation | 45 F.3d 1241 |
| Parties | Donald L. RUPP; Alma Schmidt Henderson; Lenard F. Schmidt; Betty J. Schmidt; Edward H. Schmidt; Shirley Schmidt, Appellees, v. OMAHA INDIAN TRIBE, Appellant. Donald L. RUPP; Alma Schmidt Henderson; Lenard F. Schmidt; Betty J. Schmidt; Edward H. Schmidt; Shirley Schmidt, Appellants, v. OMAHA INDIAN TRIBE, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Patrick B. Griffin, Omaha, NE, argued (Thomas D. Waldman, on the brief), for appellant.
Peter J. Peters, Council Bluffs, IA, argued (Joe Cosgrove of Sioux City, IA, on the brief), for appellee.
Before MAGILL, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.
Omaha Indian Tribe (the Tribe) appeals the decision of the district court 1 quieting title and awarding damages against the Tribe. The Tribe argues that the court had no jurisdiction because the Tribe did not waive its sovereign immunity. Donald L. Rupp (Rupp), Alma Schmidt Henderson, Lenard F. Schmidt, Betty J. Schmidt, Edward H. Schmidt, and Shirley Schmidt (collectively referred to as Henderson) cross-appeal alleging the district court erred by refusing to award punitive damages and prefiling interest. We affirm.
With a history as convoluted as the Missouri River, this case meanders up to us again. 2 A complete discussion of the underlying factual background is set forth in Omaha VI, 933 F.2d 1462. We will provide an outline of the relevant facts here.
Prior to 1955, Rupp and Henderson held title to tracts of land in Iowa adjacent to the eastern border of the Missouri River. At that time, these tracts were unaffected by the tribal lands in Nebraska bordering the west bank of the river. In 1955, the Corps of Engineers decided to change the course of the Missouri River and condemned a right of way in Rupp's and Henderson's lands. The Corps constructed a new channel for the Missouri River on the condemned land. This new channel left 230 acres of Rupp's and Henderson's land that was not condemned by the Corps as an island in the middle of the Missouri River. Gradually, the old Missouri channel on the west side of the Rupp and Henderson lands silted in and the Rupp and Henderson lands now lie in Iowa on the western side of the Missouri River.
In 1974, the Tribe physically took possession of the Rupp and Henderson lands. In 1975, the Tribe filed suits to quiet title to certain lands lying adjacent to the Missouri River in Monona County, Iowa, including the Rupp and Henderson lands, claiming it was within the Tribe's reservation. Specifically, the Tribe claimed land in the Blackbird Bend Area, the Monona Bend Area and the Omaha Mission Bend Area. Rupp and Henderson answered the Tribe's complaint and each counterclaimed to quiet title to certain portions of the land 3 set forth in the Tribe's complaint in their respective names.
On May 29, 1990, after a series of flagrant acts of misconduct by the Tribe and its attorney culminating in the Tribe's refusal to participate in the pretrial conference or writing the proposed pretrial order, the district court dismissed the Tribe's complaint as a discovery sanction. That dismissal was upheld by this court in Omaha VI, 933 F.2d 1462.
This dismissal resolved claims to all of the disputed land except as to Rupp and Henderson because the Tribe was physically occupying their land. After remand back to the district court, these counterclaims proceeded to trial. At trial, the Tribe was precluded from offering any witnesses or exhibits due to its failure to list any witnesses or exhibits in the pretrial order.
Upon remand, the Tribe asserted its sovereign immunity as an absolute defense to the Rupp and Henderson counterclaims. The district court determined that the Tribe had waived its sovereign immunity by virtue of a "sue or be sued" clause in its corporate charter. After trial, the district court quieted title to the disputed tracts in Rupp and Henderson; awarded fair rental value of Rupp's tract to Rupp in the amount of $601,976.99; awarded Henderson $175,703.21 as the fair rental value of her tracts for the period the Tribe occupied them; awarded both Rupp and Henderson postjudgment interest. The district court refused to award prefiling interest or punitive damages.
The Tribe appeals the decision of the district court, alleging that it possessed sovereign immunity from suit which it had not waived. Rupp and Henderson cross-appeal alleging the district court erred by refusing to award prefiling interest and punitive damages.
The Tribe argues that once its original suit was dismissed by the district court, it possessed sovereign immunity as to the Rupp and Henderson counterclaims. However, in oral argument, the Tribe conceded that it consented to the Rupp and Henderson counterclaims during the pendency of its suit.
Sovereign immunity is a jurisdictional question: if the Tribe possessed sovereign immunity, then the district court had no jurisdiction to hear the counterclaims. Puyallup Tribe, Inc. v. Washington Game Dep't, 433 U.S. 165, 172, 97 S.Ct. 2616, 2621, 53 L.Ed.2d 667 (1977). We review the district court's determination of jurisdiction de novo.
It is well established that Indian tribes possess sovereign immunity from suit that existed at common law. Rosebud Sioux Tribe v. A & P Steel, Inc., 874 F.2d 550, 552 (8th Cir.1989). The Tribe may waive this immunity. A waiver of sovereign immunity may not be implied, but must be unequivocally expressed by either the Tribe or Congress. Id. Tribes possess immunity because they are sovereigns predating the Constitution. American Indian Agric. Credit v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th Cir.1985).
The Tribe argues that it filed suit in its constitutional capacity and the district court erred when it determined that the "sue or be sued" clause contained in its corporate charter operated as a waiver to acts undertaken in its constitutional capacity. We need not decide whether the district court correctly determined that a waiver of sovereign immunity in its corporate charter acts as a waiver in all instances. We may affirm the judgment of the district court on any ground supported by the record, even if the district court did not rely on it. Monterey Dev. v. Lawyer's Title Ins., 4 F.3d 605, 608 (8th Cir.1993). We believe that the Tribe's act of filing suit to quiet title in the disputed lands, combined with explicit language found in its complaint and its explicit waiver of immunity with respect to the counterclaims during the pendency of its suit, constitutes an express and unequivocal waiver of the Tribe's sovereign immunity.
By initiating a lawsuit, the Tribe "waives immunity as to claims of the defendant which assert matters in recoupment--arising out of the same transaction or occurrence which is the subject matter of ... [the] suit." Rosebud Sioux Tribe, 874 F.2d at 552. The commencement of a lawsuit by itself does not, however, operate as a waiver of immunity with respect to compulsory counterclaims. Oklahoma Tax Comm'n v. Potawatomi Indian Tribe, 498 U.S. 505, 508-09, 111 S.Ct. 905, 909, 112 L.Ed.2d 1112 (1991). Oklahoma Tax Commission held that a suit filed by the Potawatomi tribe to enjoin the state from collecting certain taxes did not waive the tribe's sovereign immunity with respect to a counterclaim to enforce the state's tax assessment and enjoin the tribe to collect state sales taxes in the future. Id. at 506-08, 111 S.Ct. at 908.
The Tribe did not merely file a quiet title action. The Tribe affirmatively requested the district court to order the defendants to assert any claims in the disputed lands they possessed against the Tribe and exercise its equitable powers to, among other things, quiet title in the Tribe's name. The Tribe requested the district court to order the defendants to:
appear and answer this Complaint setting forth in full their alleged sources of title, if any, in and to the lands and specifically describing the lands in and to which they claim any right, title, interest or estate within the Omaha Indian Reservation within the State of Iowa, all as specifically described [in this complaint]; the period during which they have occupied and/or asserted any right, title, interest or estate in and to those lands which are part of the Omaha Indian Reservation situated within the State of Iowa.
Appellant's App. at 52-53. This additional language explicitly requesting Rupp and Henderson to assert any "right, title, interest or estate" they may have in the disputed land is an unequivocal consent to any counterclaims asserted by Rupp and Henderson to quiet title and award damages in their respective names. Although waivers of sovereign immunity cannot be implied and are to be strictly construed in favor of the Tribe, this test is satisfied by the Tribe's affirmative request that Rupp and Henderson assert their claims in the disputed land.
This result is consistent with our decision in Standing Rock. In Standing Rock, we determined that the tribe did not waive its sovereign immunity simply because it entered into a loan with the American Indian Agricultural Credit Consortium, Inc. 780 F.2d at 1379. The loan agreement the tribe entered into, under a tribal council resolution, provided several remedies in the event of a default by the Standing Rock tribe, "in addition to such other and further rights and remedies provided by law," awarded attorney's fees expended in collection efforts and stated that the law of the District of Columbia governed the agreement. Id. at 1376. We stated that it would be easy to imply a waiver of sovereign immunity from these circumstances, but that such an implied waiver was prohibited by Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). We...
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