Trans-Canada Enterprises, Ltd. v. Muckleshoot Indian Tribe, TRANS-CANADA

• Decision Date: 24 December 1980
• Docket Number: TRANS-CANADA,No. 78-3597,78-3597
• Parties: ENTERPRISES, LTD., a corporation, Plaintiff-Appellee, v. MUCKLESHOOT INDIAN TRIBE, Anthony Little, and John Does 1 through 4, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 474

634 F.2d 474

TRANS-CANADA ENTERPRISES, LTD., a corporation, Plaintiff-Appellee, v. MUCKLESHOOT INDIAN TRIBE, Anthony Little, and John Does 1

through 4, Defendants-Appellants.

No. 78-3597.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 15, 1980.

Decided Dec. 24, 1980.

Allen H. Sanders, Auburn, Wash., argued for defendants-appellants; Don B. Miller, Boulder, Colo., on brief.

Robert E. Ratcliffe, Seattle, Wash., for plaintiff-appellee.

Barry D. Ernstoff, Ziontz, Pirtle, Morisset, Ernstoff & Chestnut, John K. Hoerster, Houger, Garvey & Schubert, Seattle, Wash., Michael E. Taylor, Carl V. Ullman, Michael P. O'Connell, Taholah, Wash., for Asso. of Cooperating Tribes.

Slade Gorton, Atty. Gen., Olympia, Wash., for State.

On Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT and ANDERSON, Circuit Judges, and VON DER HEYDT, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

The defendant Muckleshoot Indian Tribe appeals the entry below of a permanent injunction prohibiting the enforcement of a tribal business licensing ordinance against the plaintiff Trans-Canada Enterprises, Ltd. We reverse.

I. BACKGROUND

The Muckleshoot Indian Reservation is located in King County, Washington, near the city of Auburn. Created pursuant to the Treaty of Medicine Creek, 10 Stat. 1132 (1854), the reservation now contains large tracts of land which are held in fee by non-Indians. The City of Auburn has annexed a portion of the reservation, including an area adjacent to the White River. Since the annexation, the City has asserted land use and zoning jurisdiction over the annexed portion of the reservation.

The Tribe, apparently concerned that the City's zoning policies were inconsistent with tribal perceptions of the most desirable pattern of development, enacted a business licensing ordinance in October 1977. The ordinance required that a tribal business license be obtained prior to the commencement of any business on the reservation, or prior to embarking on any business-related land development. The ordinance also provided for the establishment of a planning commission to oversee the development-related aspects of the licensing scheme.

Trans-Canada proposes to develop two large tracts of land located within both the boundaries of the reservation and of the City. ¹ The proposed development would consist of a high density residential and mobile home subdivision located at or near the banks of the White River. The Tribe has contended that the development will irrevocably alter the usual character of that portion of the reservation, and that it could have an adverse impact on tribal fishing activities.

Trans-Canada has consistently refused to comply with the tribal licensing ordinance, although it claims to have complied with the City's zoning laws. On November 9, 1977, the Tribe filed a civil enforcement action in tribal court seeking to enjoin construction of the development and to compel compliance with the ordinance. The tribal court issued a preliminary injunction against further construction on November 17, 1977. The injunction provided that no construction could take place until it was demonstrated that all requirements of the ordinance had been satisfied, or until a trial on the merits could be had. The injunction set November 29, 1977, as the trial date, which was later continued until December 14.

On December 7, 1977, Trans-Canada filed its complaint in the present action in federal district court seeking injunctive and declaratory relief against enforcement of the tribal business licensing ordinance, and also seeking an unspecified amount of damages. The complaint named as defendants the Tribe, the tribal court judge who had issued the preliminary injunction, and four John Doe defendants described in the complaint as the tribal police officers who had served the Tribe's injunction on Trans-Canada's agents at the construction site. Trans-Canada's complaint alleged a number of jurisdictional bases, including, inter alia, the Indian Civil Rights Act, 25 U.S.C. § 1302, and 28 U.S.C. § 1343 (civil rights enforcement). The complaint further alleged several reasons why the ordinance was not enforceable against Trans-Canada, including a general lack of jurisdiction and violations of the due process and equal protection clauses of the fourteenth amendment. Trans-Canada also moved for a temporary restraining order and preliminary injunction. The Tribe moved to dismiss. The district court denied Trans-Canada's motion on the ground that it had failed to demonstrate that its complaint had probable merit. Trans-Canada subsequently filed a motion for reconsideration, which was granted on July 27, 1978. The district court reversed itself primarily on the authority of the Supreme Court's holding in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), that the Suquamish Tribe could not assert criminal jurisdiction over non-Indians, and entered a permanent injunction against enforcement of the licensing ordinance. In denying the Tribe's subsequent motion to reconsider, the court clarified its jurisdictional findings by holding that it could assert federal question jurisdiction on the basis of the allegation of fourteenth amendment violations under Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

II. DISCUSSION

On appeal, the Tribe urges that the district court lacked subject matter jurisdiction. We agree. ²

Trans-Canada alleged several jurisdictional bases which clearly do not supply jurisdiction in this case. ³ In addition to the claimed jurisdictional bases which we dispose of summarily in footnote 3, supra, we may reject jurisdiction under the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303, with only brief comment. In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), the Supreme Court held that the Indian Civil Rights Act does not imply a private cause of action for enforcement either in its own right, or in conjunction with 28 U.S.C. § 1343(4). The sole federal remedy for an alleged violation of the Act is application for federal habeas corpus relief under 25 U.S.C. § 1303, 436 U.S. at 70, 98 S.Ct. at 1683. Trans-Canada, therefore, cannot avail itself of the Act in this case.

The district court's finding of federal question jurisdiction was based in part upon its assumption that the due process clauses of the fifth and fourteenth amendments were applicable to the Tribe's exercise of its police power over Trans-Canada's proposed construction. ⁴ Constitutional guarantees, however, are not applicable to the exercise of governmental powers by an Indian tribe except to the extent that they are made explicitly binding by the Constitution or are imposed by Congress. See Santa Clara Pueblo v. Martinez, supra; Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896); Wardle v. Ute Indian Tribe, 623 F.2d 670 (10th Cir. 1980); Janis v. Wilson, 521 F.2d 724 (8th Cir. 1975); Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1970); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967); Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959); Barta v. Oglala Sioux Tribe, 259 F.2d 553 (8th Cir. 1958), cert. denied, 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959); Martinez v. Southern Ute Tribe of Southern Ute Reservation, 249 F.2d 915 (10th Cir. 1957), cert. denied, 356 U.S. 960, 78 S.Ct. 998, 2 L.Ed.2d 1067 (1958). Even though the Indian Civil Rights Act imposes a form of due process limitation upon Indian tribes, 25 U.S.C. § 1302(8), the sole remedy for such a violation, as noted above, is federal habeas relief.

Our decision in Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965), does not alter our analysis here. Colliflower, a decision handed down prior to the passage of the Indian Civil Rights Act, held that federal habeas relief was available to an Indian convicted of a minor crime in tribal court because of various procedural...