U.S. v. Red Lake Band of Chippewa Indians, 86-5453

• Decision Date: 28 September 1987
• Docket Number: No. 86-5453,86-5453
• Parties: UNITED STATES of America, Appellee, v. RED LAKE BAND OF CHIPPEWA INDIANS; Red Lake Tribal Council; Roger Jourdain; Royce Graves; James Strong; Allen English; Lawrence Bedeau; George Jones; Adolph Barrett; Roman Stately, Jr.; Gerald Brun; Dan Raincloud, Jr.; Tom Stillday, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 380

827 F.2d 380

56 USLW 2147

UNITED STATES of America, Appellee, v. RED LAKE BAND OF CHIPPEWA INDIANS; Red Lake Tribal Council;

Roger Jourdain; Royce Graves; James Strong; Allen

English; Lawrence Bedeau; George Jones; Adolph Barrett;

Roman Stately, Jr.; Gerald Brun; Dan Raincloud, Jr.; Tom

Stillday, Appellants.

No. 86-5453.

United States Court of Appeals,

Eighth Circuit.

Submitted June 11, 1987.

Decided Aug. 31, 1987.

Rehearing Denied Sept. 28, 1987.

James F. Bodin, Duluth, Minn., for appellants.

Laura Heiser, Washington, D.C., for appellee.

Before McMILLIAN, Circuit Judge, FAIRCHILD, ^* Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

McMILLIAN, Circuit Judge.

The Red Lake Band of Chippewa Indians, the Red Lake Tribal Council and Red Lake Band officials (collectively Red Lake) appeal from a final judgment entered in the District Court ¹ for the District of Minnesota granting custody to the United States of certain records of the Red Lake Court of Indian Offenses (the tribal court). For reversal, Red Lake contends (1) tribal sovereign immunity bars the district court's assertion of jurisdiction over this action, and (2) the district court erred in granting summary judgment because there existed a genuine issue of material fact about whether the tribal court records were agency records belonging to the United States. For the reasons discussed below, we affirm the judgment of the district court.

In August 1985, Red Lake removed case records from its tribal court and stored them in the tribal archives. The Bureau of Indian Affairs (BIA) demanded that Red Lake return the records and Red Lake refused. The United States then filed this action under the Federal Records Act, 44 U.S.C. Sec. 3106, ² seeking recovery of the records. The United States claimed that the tribal court records were agency records belonging to the BIA and the Department of Interior and that the removal of these records violated the Federal Records Act. The United States moved for summary judgment and Red Lake responded that tribal sovereign immunity barred the suit. Red Lake argued in the alternative and on the merits that its tribal court records are not agency records belonging to the United States, i.e., that the Red Lake tribal court is an independent tribal court and is not organized under or subject to BIA regulations.

The district court granted summary judgment for the United States. United States v. Red Lake Band of Chippewa Indians, Civ. No. 6-86-34 (D.Minn. Oct. 31, 1986) (memorandum opinion). The district court held first that it had jurisdiction over the case because sovereign immunity may not be asserted by an Indian tribe against the United States. Id. at 5. The district court relied on Washington v. Confederated Tribes of Colville, 447 U.S. 134, 153-54, 100 S.Ct. 2069, 2081, 65 L.Ed.2d 10 (1980) (Colville ), where the Supreme Court held that "tribal sovereignty is dependent on, and subordinate to, ... the Federal Government," and that "tribes retain ... their historical sovereignty not inconsistent with the overriding interests of the National Government."

Red Lake acknowledges on appeal that tribal sovereign immunity is not absolute as against the federal government. Red Lake contends, however, that the Supreme Court has held that only Congress may override tribal sovereign immunity and only by express waiver, citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (Santa Clara Pueblo ). There, the Court stated: "[T]ribal sovereign immunity ... is subject to the superior and plenary control of Congress. But without congressional authorization, the Indian Nations are exempt from suit. It is well settled that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed." Id. at 58 (citations omitted). Red Lake argues that the district court's jurisdictional ruling in this case contradicts Santa Clara Pueblo and means that any federal agency may waive tribal sovereign immunity merely by suing the tribe, whether or not Congress has waived the tribe's sovereign immunity. Congress has not expressly waived tribal sovereign immunity under the Federal Records Act.

Whether tribal sovereign immunity may bar an action by the United States against an Indian tribe is a question of first impression in this circuit. In United States v. White Mountain Apache Tribe, 784 F.2d 917, 920 (9th Cir.1986), the Ninth Circuit held that "the Tribe's own sovereignty does not extend to preventing the federal government from exercising its superior sovereign powers." This principle was later cited by the same court in United States v. Yakima Tribal Court, 806 F.2d 853, 861 (9th Cir.1986) (Yakima ), cert. denied, --- U.S. ----, 107 S.Ct. 2461, 95 L.Ed.2d 870 (1987), in support of its holding that the United States could sue and override a tribe's sovereign immunity just as it could sue and override a state's sovereign immunity, citing United States v. Mississippi, 380 U.S. 128, 140-41, 85 S.Ct. 808, 814-15, 13 L.Ed.2d 717 (1965) (Mississippi ) (federal sovereignty overrides state sovereignty).

Red Lake seeks to distinguish the Yakima and White Mountain cases. In both cases, the tribe obtained an injunction in tribal court preventing federal officials from carrying out official duties on the reservation. The United States challenged the injunctions in federal district court and the tribe resisted, arguing the district court had no jurisdiction. Because the tribes initiated the proceedings in tribal court, Red Lake argues that the tribes had waived their sovereign immunity with respect to the orders and decisions of the tribal court, which orders and decisions were in turn the subject of the litigation in federal district court. Red Lake also argues that the analogy drawn in Yakima between the relationship of the federal government and Indian tribes and that between the federal government and the individual states is not apt because Indian tribes exist in a trust relationship with the federal government and the states do not. See F. Cohen, Handbook of Federal Indian Law 220-21 (1982 ed.). Red Lake asserts it would not be a proper exercise of the federal government's fiduciary duty to permit an implicit waiver of tribal sovereign immunity whenever a federal agency wanted to sue an Indian tribe.

We conclude it is an inherent implication of the superior power exercised by the United States over the Indian tribes that a tribe may not interpose its sovereign immunity against the United States. In general, Indian tribes possess the common-law immunity from suit traditionally enjoyed by sovereign powers. Turner v. United States, 248 U.S. 354, 358, 39 S.Ct. 109, 110, 63 L.Ed. 291 (1919). The status of Indian tribes in relation to the United States, however, is paradoxical. "[T]he relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 15, 8 L.Ed. 25 (1831). The tribes have been described as "domestic dependent nations," id. at 17, exercising many of the sovereign powers of an independent nation, yet existing in a ward-guardian relationship with the federal government and thus subject to its superior and plenary powers. In sum, the Indian tribes are distinct, independent political communities, retaining the right of self-government, yet subject to the protecting power of the United States. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832).

This status has been interpreted to mean that Indian tribes retain all fundamental attributes of sovereignty unless divested of them by federal law or by the "necessary implication of their dependent status." Colville, 447 U.S. at 152, 100 S.Ct. at 2081 (citation omitted). ³ Tribal immunity from suit without their consent is among those fundamental attributes of sovereignty that may be divested as an implicit result of their dependent status. Cf. United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940) ("[I]t is as though the immunity which was theirs as sovereigns passed to the United States for their benefit, as their tribal properties did."). We conclude that just as a state...