State of Nevada v. Hicks

• Decision Date: 24 January 2000
• Docket Number: No. 96-17315,PAIUTE-SHOSHONE,96-17315
• Citation: 196 F.3d 1020
• Parties: (9th Cir. 1999) STATE OF NEVADA; WILLIAM MOLINI; NEVADA DIVISION OF WILDLIFE; MICHAEL C. PENCER, RICH ELLINGTON, and BILL FITZMORRIS, Plaintiffs-Appellants, v. FLOYD HICKS; TRIBAL COURT in and for THETRIBES; HONORABLE JOSEPH VAN WALRAVEN, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1020

196 F.3d 1020 (9th Cir. 1999)

STATE OF NEVADA; WILLIAM MOLINI; NEVADA DIVISION OF WILDLIFE; MICHAEL C. PENCER, RICH ELLINGTON, and BILL FITZMORRIS, Plaintiffs-Appellants, v. FLOYD HICKS; TRIBAL COURT in and for THE PAIUTE-SHOSHONE TRIBES; HONORABLE JOSEPH VAN WALRAVEN, Defendants-Appellees.

No. 96-17315

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted October 7, 1997

Withdrawn from Submission Oct. 10, 1997

Resubmitted November 4, 1999

Decided November 9, 1999

As Amended January 24, 2000

[Copyrighted Material Omitted] C. Wayne Howle, Deputy Attorney General, Carson City, Nevada, for the plaintiffs-appellants.

Melody L. McCoy, Native American Rights Fund, Boulder, Colorado, for the defendants-appellees.

Mitchell Wright, Reno, Nevada, for defendant-appellee Floyd Hicks.

Appeal from the United States District Court for the District of Nevada; David W. Hagen, District Judge, Presiding. D.C. No. CV-94-00351-DWH

Before: Alfred T. Goodwin, Betty B. Fletcher and Pamela Ann Rymer, Circuit Judges.

Opinion by Judge FLETCHER; Dissent by Judge RYMER.

B. FLETCHER, Circuit Judge:

This case concerns the jurisdiction of a tribal court over claims against state officials for tribal common law torts and federal and tribal civil rights violations. The events giving rise to these claims took place on Indian-owned land on a reservation.

The State of Nevada and named state officials appeal the decision of the district court denying them summary judgment and granting summary judgment to Floyd Hicks and the tribal court. The district court held that the tribal court had jurisdiction to hear the suit brought by Hicks against state officials for tribal common law torts and federal and tribal civil rights violations occurring on Indian-owned land. It also held that the tribal court action against the state officials in their individual capacities was not barred by sovereign immunity. It declined to review on the merits the officials' claims of qualified immunity from suit because they had not been exhausted before the tribal court. We affirm the district court's holding that the tribal court has jurisdiction, and we affirm its holding that the issue of qualified immunity was not exhausted before the tribal court and therefore was not properly before the district court or this court. We conclude the district court similarly should have refrained from addressing sovereign immunity, leaving the issue to the tribal court in the first instance.

I.

Floyd Hicks is an enrolled member of the Fallon Paiute Shoshone Tribe ("Tribe"), a federally recognized Indian tribe with over 900 members. The Tribe's reservation in western Nevada consists of about 8,000 acres of land held by the federal government in trust for the Tribe and for individual tribal members. Hicks lives within the Tribe's reservation on allotted land held by the government in trust for him.

On August 30, 1990, Michael Spencer, a Nevada state game warden, obtained a search warrant from the New River Justice Court to search Hicks' property for evidence of the possession or killing of a big horn sheep of the California subspecies, a gross misdemeanor under Nev. Rev. Stat. S 501.376. The warrant provided, however, that the state court lacked jurisdiction over the Fallon Paiute-Shoshone reservation and that the warrant was valid only if approved by the Fallon Tribal Court.

That same day, a tribal judge approved the warrant but limited the search to the "exterior premises and any vehicles thereon." Spencer, accompanied by a tribal police officer, allegedly executed the warrant and removed at least one mounted big horn sheep head trophy from Hicks' residence. However, the trophy was apparently of the Rocky Mountain subspecies, and it was later returned to Hicks. Hicks asserts that the trophy was damaged when returned. On June 12, 1991, Spencer applied for and received another state search warrant to seek evidence for the same state offense. Spencer, along with state game wardens Rich Ellington and Bill Fitzmorris, executed the warrant that same day,

again accompanied by tribal police and with tribal court approval. One or more big horn sheep head trophies belonging to Hicks were removed from Hicks' residence. Once again, it was ultimately determined that the trophies were not evidence of any state crime or game violation and they were returned to Hicks.

Hicks filed two complaints in Fallon Tribal Court for money damages alleging damages resulting from the actions of the state and tribal officials on August 30, 1990, and June 12, 1991. The complaints named William Molini, Director of the Nevada Department of Wildlife, Michael Spencer, Rick [sic] Ellington, and Bill Fitzmorris as defendants in both their official and individual capacities, and alleged a variety of claims under the Indian Civil Rights Act ("ICRA"), 25 U.S.C. S 1302, as well as tort claims under tribal common law. By amended complaint, Hicks claimed violation of unspecified federal and tribal civil rights¹.

The tribal court held, in a written order, that it had jurisdiction over the actions. Following a challenge to Hicks' service of process by publication, the tribal court quashed the service as ineffective. Following cross-appeals, the Intertribal Appellate Court reversed and remanded for trial, upholding both the service of process and the jurisdiction of the tribal court. Two weeks later, the State of Nevada and the named state officials (hereinafter "Nevada") filed the present action in federal district court against Hicks, the tribal court and tribal judge (hereinafter "tribal appellees"), for declaratory relief regarding the issue of tribal court jurisdiction².

Before the district court, the parties presented crossmotions for summary judgment on whether the tribal court had jurisdiction over the claims against the state officials. Meanwhile, the tribal court granted Hicks' motions voluntarily to dismiss the claims against the state officials in their official capacity. The district court then held that the dismissal mooted the issue of tribal court jurisdiction over the state officials in their official capacities.

After oral argument and supplemental briefing, the district court issued an order denying Nevada's motion for summary judgment and granting the motion for summary judgment made by Hicks and the tribal appellees. In its order, the district court held that the Intertribal Court of Appeals did not err in holding that service of process was in accordance with tribal law.³ The district court further held that the tribal court had subject matter jurisdiction over the claims brought by Hicks against the state officials in their individual capacities, and that the claims were not barred by sovereign immunity. Additionally, the district court held that two issues, the claims of qualified immunity by the state officials and whether any claims lie against William Molini, had not been exhausted in the tribal courts.

II.

As a threshold issue, the district court correctly held that it had federal question jurisdiction to determine whether the tribal court had jurisdiction. See 28 U.S.C.S 1331; see also National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985). We review determinations of federal law regarding the extent of tribal court jurisdiction de novo. See FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311, 131314 (9th Cir. 1990), cert. denied, 499 U.S. 943 (1991).

In determining the tribal court's jurisdiction, the district court first noted that no federal statutes provide guidance on the extent of tribal court jurisdiction over civil matters. The district court then adopted as basic guiding principles the distinction between civil and criminal jurisdiction, and the recognition by the courts of "a strong geographic component" distinguishing incidents occurring on Indian-owned land from those on non-Indian owned land. The district court also acknowledged the "general proposition" of Montana v. United States, 450 U.S. 544, 565 (1981), that on non-Indian owned land "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe,"⁴ but doubted its applicability to the instant case after finding Hicks' allotment to be Indian-owned land.

The district court suggested instead that the applicable rule on the facts before it was that of Williams v. Lee: where the underlying incidents occur on Indian-owned land, tribal court jurisdiction is presumed unless affirmatively limited by an act of Congress. See Williams v. Lee, 358 U.S. 217, 222 (1959) ("This court ha[s] consistently guarded the authority of Indian governments over their reservations . . . . If this power is to be taken away from them, it is for Congress to do it."). However, the district court expressed concern that the Supreme Court had not yet made clear the circumstances in which the Montana rule should be applied and assumed without deciding for the purposes of this case that it would apply. It ultimately concluded that, even were Montana to apply, the tribal court would still have jurisdiction because the underlying facts fell within the exceptions to Montana's general presumption against jurisdiction.

Subsequent to the district court's decision, the Supreme Court decided Strate v. A-1 Contractors, 520 U.S. 438 (1997). Nevada argues on appeal that Strate interprets Montana as precluding tribal court jurisdiction over civil actions involving non-Indians regardless of whether the underlying incidents occurred on Indian-owned land or non-Indian owned land. However, the Strate Court made no such determination, a fact we recently noted in County of Lewis v. Allen , 169 F.3d 509, 514 (9th Cir. 1998).

We now affirm the district court's determination that the tribal court has jurisdiction over the actions underlying the instant case. We also affirm the district court's rulings on the issues of sovereign immunity and qualified immunity.

A.

The Court...