State of Montana v. Gilham

• Decision Date: 13 January 1998
• Docket Number: No. 96-35766,96-35766
• Parties: 98 Cal. Daily Op. Serv. 298, 98 Daily Journal D.A.R. 407 STATE OF MONTANA, Plaintiff-Appellee, v. Toni A. GILHAM, individually and as Personal Representative of the Estate of Christine Marie Gilham, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1133

133 F.3d 1133

98 Cal. Daily Op. Serv. 298, 98 Daily Journal

D.A.R. 407

STATE OF MONTANA, Plaintiff-Appellee, v. Toni A. GILHAM, individually and as Personal Representative

of the Estate of Christine Marie Gilham,

Defendant-Appellant.

No. 96-35766.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 1997.

Opinion Decided Oct. 22, 1997.

Amended Opinion Decided Jan. 13, 1998.

Turner C. Graybill, Graybill, Ostrem & Crotty, Great Falls, Montana, for defendant-appellant.

Maxon R. Davis, Paul R. Haffeman, Davis, Hatley, Haffeman & Tighe, Great Falls, Montana, Clay R. Smith, Solicitor, Harley R. Harris, Asst. Atty. Gen., Office of the Atty. Gen., Helena, Montana, for plaintiff-appellee.

Jeanne S. Whiteing, Whiteing & Smith, Boulder, Colorado, for amicus curiae, Blackfeet Tribe.

Before: REINHARDT and THOMAS, Circuit Judges, and SEDWICK, ^* District Judge.

THOMAS, Circuit Judge:

This case raises the question of whether the State of Montana may be subject to an unconsented tort action filed by an individual plaintiff in Blackfeet Tribal Court. We hold that Montana's sovereign immunity bars such an action.

I

Our consideration of these questions of dominion and authority has its genesis in a personal tragedy. On January 14, 1986, Christine Gilham was fatally injured when the car in which she was a passenger struck a permanently anchored highway sign at the intersection of U.S. Highways 2 and 89 within the external boundaries of the Blackfeet Indian Reservation, located in the State of Montana. Toni Gilham ("Gilham"), Christine's mother, brought an action against the driver of the car, who was intoxicated at the time of the accident, and the State of Montana ("Montana") in the Blackfeet Tribal Court. She alleged that Montana was negligent in its design, construction, and maintenance of the intersection.

Montana filed a motion to dismiss for lack of jurisdiction, arguing that as a sovereign, it is immune from suit in the Blackfeet Tribal Court absent a waiver of its sovereign immunity. The tribal court denied the motion, and the case proceeded to trial. The jury returned a verdict against the driver and Montana for $280,000. After application of comparative negligence and distribution of the proceeds of the driver's insurance policy, judgment was entered against the defendants rendering them jointly and severally liable for $159,664.92. Montana unsuccessfully appealed the immunity issue to the Blackfeet Court of Appeals and then to the Blackfeet Supreme Court, both courts affirming the tribal court's ruling. The courts found that Article II, § 18 of the Montana Constitution waived Montana's immunity from suit in the tribal courts. The Blackfeet Supreme Court remanded the case to the tribal court for further proceedings on issues unrelated to the sovereign immunity question.

Montana filed this action for declaratory relief in the U.S. District Court for the District of Montana challenging the jurisdiction of the Blackfeet Tribal Court. Montana also sought an injunction against further proceedings in the tribal court pending the district court's resolution of the jurisdictional question. The district court granted Montana's motion for summary judgment and denied Gilham's cross-motion for summary judgment, seeking an order requiring Montana to accept the judgment of the Blackfeet Tribal Court. The district court reasoned that Montana, as a sovereign, enjoys immunity from suit in tribal courts. The court further held that Article II, § 18 of the Montana Constitution does not waive this immunity because that provision only waives Montana's immunity from suit in Montana state courts. Because it concluded the Blackfeet Tribal Court lacked jurisdiction over Montana, the court also granted Montana's request for injunctive relief against further proceedings in the tribal court. Gilham timely appealed.

II

Tribal court jurisdiction over non-Indians is a question of federal law which we review de novo. United States ex rel. Morongo Band of Mission Indians v. Rose, 34 F.3d 901, 905 (9th Cir.1994). Whether the State of Montana is immune from suit in tribal court involves two questions: ¹ (1) whether Montana has sovereign immunity from suit in the tribal courts, and (2) if so, whether Montana waived this immunity in Article II, § 18 of the Montana Constitution.

A

As Hamilton famously observed: "[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption as one of the attributes of sovereignty is now enjoyed by the government of every state in the union." The Federalist No. 81, p. 548-49 (J. Cooke ed.1961). As Chief Justice John Marshall more colloquially put it: "[it] is not rational to suppose that a sovereign power should be dragged before a court." 3 Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 555 (2d ed. 1863). ²

The States and Indian tribes, as co-existing sovereigns with significant and complex commercial, governmental and property interrelationships, often require a mechanism to determine their respective rights and interests. Finding a forum to resolve disputes is problematic, for each sovereign naturally defends the jurisdictional reach of its own courts and resists being "dragged before" the courts of the other. See, e.g., Wippert v. Blackfeet Tribe, 260 Mont. 93, 859 P.2d 420 (1993). Thus, in determining whether Montana is immune from this tort action, we must first briefly examine the nature of tribal and State sovereignty.

"Indian tribes have been recognized, first by the European nations, later by the United States, 'as distinct, independent political communities' qualified to exercise powers of self-government, not by virtue of any delegation of powers, but rather by reason of their original tribal sovereignty." F. Cohen, Handbook of Federal Indian Law 232 (1982 ed.) (quoting Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 519, 8 L.Ed. 483 (1832)). Tribal sovereignty is of "a unique and limited character." United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978). The incorporation of tribes within the territory of the United States means that tribal sovereignty "exists only at the sufferance of Congress and is subject to complete defeasance." Id. However, "until Congress acts, the tribes retain their sovereign powers." Id.

Foremost among the attributes of sovereignty retained by Indian tribes is immunity from suit. Absent Congressional action, consent or waiver, an Indian tribe may not be subject to suit in state or federal court. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1676-77, 56 L.Ed.2d 106 (1978); Snow v. Quinault Indian Nation, 709 F.2d 1319, 1321 (9th Cir.1983). This general rule of tribal immunity is privileged from diminution by the States. Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 891, 106 S.Ct. 2305, 2313, 90 L.Ed.2d 881 (1986).

Similarly, with some exceptions, the sovereignty of States insulates them from unconsented litigation in federal court. U.S. Const., amend XI; Seminole Tribe of Florida v. Florida, 517 U.S. 44, ---- - ----, 116 S.Ct. 1114, 1122-23, 134 L.Ed.2d 252 (1996). This principle is founded on the presupposition that "the States entered the federal system with their sovereignty intact" and "that the judicial authority in Article III is limited by this sovereignty." Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 2581, 115 L.Ed.2d 686 (1991). Thus, absent consent or waiver, States may not be sued by Indian tribes in federal court. Id.

Thus, as coexistent sovereigns, conflicts between States and tribes cannot be resolved judicially without one of them giving up sovereign immunity. Fortunately, we are not confronted with that dilemma here because the question in this case is different. An individual, not a tribe, is suing Montana in tribal court.

Neither the Constitution, nor congressional act provide express guidance for resolution of this question. Such a suit would, of course, be barred in federal court by the Eleventh Amendment. However, the Eleventh Amendment by its terms only applies to exercise of "the judicial power of the United States." U.S. Const., amend XI. While "the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III," Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984), the tribal courts are not Article III courts. See, e.g., 25 U.S.C. § 3631(5) ("Nothing in [the Indian Tribal Justice Act] shall be construed to ... imply that any tribal justice system is an instrumentality of the United States...."). The tribes derive their adjudicatory power not from Article III, but from their inherent sovereignty as the aboriginal people of this continent, from the vestiges of their once absolute authority over their internal affairs. Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 556 (9th Cir.1991). Accordingly, the Eleventh Amendment affords no Constitutional limit on the jurisdictional reach of tribal courts.

Similarly, although Congress has plenary power over tribes, Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. at 1676-77, it has neither proscribed the jurisdictional reach of tribal courts, nor attempted to abrogate State sovereign immunity in this context. ³ Thus, any limitation on tribal court authority to entertain a suit against a State must arise from a source other than direct application of the Eleventh Amendment or congressional act.

That source is the inherent sovereign powers of the States. Blatchford underscored the fact that the Eleventh Amendment stands "not so much for what it says, but for the presupposition of our constitutional structure which it confirms...." Blatchford, 501 U.S. at 779, 111 S.Ct. at 2581....