White v. Pueblo of San Juan, 83-1104

• Decision Date: 09 March 1984
• Docket Number: No. 83-1104,83-1104
• Parties: Joseph R. WHITE and Stephani L. White, his wife, Plaintiffs-Appellants, v. PUEBLO OF SAN JUAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1307

728 F.2d 1307

Joseph R. WHITE and Stephani L. White, his wife, Plaintiffs-Appellants, v. PUEBLO OF SAN JUAN, Defendant-Appellee.

No. 83-1104.

United States Court of Appeals, Tenth Circuit.

March 9, 1984.

John T. Fitzpatrick, Glass & Fitzpatrick, Albuquerque, N.M. (Angela L. Adams, Glass & Fitzpatrick, Albuquerque, N.M., with him on brief), for plaintiffs-appellants.

L. Lamar Parrish, Ussery & Parrish, Albuquerque, N.M. (Catherine Baker Stetson, Ussery & Parrish, Albuquerque, N.M., with him on brief), for defendant-appellee.

Before McWILLIAMS and DOYLE, Circuit Judges, and CHILSON, District Judge. ^*

WILLIAM E. DOYLE, Circuit Judge.

This is an appeal from the judgment of the United States District Court for the District of New Mexico which granted defendant's motion for summary judgment and dismissal of an action. The basis was lack of subject matter jurisdiction. The issues that are presented on appeal are:

1. WHETHER THE DOCTRINE OF SOVEREIGN IMMUNITY PRECLUDES FEDERAL COURT JURISDICTION OVER A CLAIM FOR DAMAGES UNDER THE INDIAN CIVIL RIGHTS ACT BY A NON-INDIAN AGAINST THE PUEBLO OF SAN JUAN INDIAN TRIBE.

2. IN THE EVENT A FEDERAL COURT DOES HAVE JURISDICTION OVER SUCH A CLAIM, WHETHER THE DISTRICT COURT CORRECTLY GRANTED SUMMARY JUDGMENT AND DISMISSED THE CASE ON THE BASIS THAT PLAINTIFFS' ALLEGATIONS DID NOT RISE TO THE LEVEL OF A CIVIL RIGHTS DEPRIVATION COGNIZABLE UNDER THE INDIAN CIVIL RIGHTS ACT.

I.

This case arises from the filing of a suit for damages by non-Indians, the Whites, against the Pueblo of San Juan Indian Tribe. Plaintiffs owned in fee simple a plot of land located within the boundaries of the Pueblo of San Juan tribal reservation. The Whites wished to sell the land and in order to bring this about obtained appraisals of its value, and entered into negotiations with a non-party, namely the Delancy Street Foundation, which owned adjacent land. The Whites were asking $140,000 and, according to them, they agreed to a price of $120,000 with the Delancy Street Foundation.

The Indian tribe sought purchase of the property also. It was claimed by the Whites that in an effort to obtain the land, the tribe threatened and intimidated them in order to force them to sell the property to the tribe. The Whites allege that the wrongful conduct by tribal officials, including the excavation of a wide trench across a dirt access road which connected the Whites' property with the adjacent Delancy Street Foundation property, thereby prohibiting access between the properties, caused the Delancy Street Foundation to refuse to close the sale. The Pueblo denies that there was any such wrongful conduct or improper motives and alleges that disagreement over the purchase price caused the Delancy Street Foundation's refusal to close the deal.

On May 16, 1979, the Whites conveyed the property to the United States of America in trust for the Pueblo in exchange for $75,000.00. The Pueblo maintains that the fairness of the sales price is supported by an appraisal of the Realty Office, Bureau of Indian Affairs, United States Department of the Interior. This appraisal was in the amount of $76,000.00. However, the Whites allege that as a result of the Pueblo's harassment, threats, and intimidation, they conveyed title to the Pueblo under duress for an inadequate consideration. The Whites do not contend they complained of such duress to the Bureau of Indian Affairs, Department of Interior; nor do they contend that they submitted a formal complaint to the Tribal Council or Tribal Court. Rather, the Whites allege that they were unaware of any tribal redress procedure and complained of the alleged duress and wrongful conduct only to the then-tribal governor Garcia, Congressman Manuel Lujan, and defendant's counsel, Lamar Parrish.

The Whites filed suit in the United States District Court for the District of New Mexico on August 4, 1981. This was over two years after the conveyance of the property to the United States in trust for the Pueblo. The allegation in this complaint was that the wrongful conduct by the tribe and interference with an agreement between the Whites and the Delancy Street Foundation, constituted civil rights deprivations pursuant to Sec. 1302(5) (deprivation of property without due process) and also Sec. 1302(8) (taking of property without just compensation) of the Indian Civil Rights Act, 25 U.S.C. Secs. 1301, et seq., (hereinafter the ICRA). The Pueblo counterclaimed in which it alleged misrepresentations by the Whites regarding the good repair of the conveyed property.

The Pueblo filed a motion for summary judgment and to dismiss, alleging that the Whites failed to exhaust administrative and tribal remedies and that the complaint was barred by the doctrine of sovereign immunity. The tribe subsequently filed a supplemental motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim on which relief may be granted.

The district court dismissed the Whites' claims and found that they failed to state a valid claim under the ICRA, and alternatively, that the doctrine of sovereign immunity barred the action. The court denied the Whites' subsequent motion to stay dismissal pending pursuit of tribal remedies. The Whites now appeal the dismissal of their claims and in the alternative, the court's refusal to retain jurisdiction and stay dismissal until pursuit of tribal remedies.

Inasmuch as it appears from the weight of authority that the jurisdictional issue of sovereign immunity is dispositive of this appeal, the parties' positions regarding this issue only will be discussed here. Accordingly, the parties' contentions regarding whether the activities complained of rise to the level of civil rights deprivations under the ICRA will not be discussed.

The position of the Whites is that they acknowledge that resolution of the tribal sovereign immunity issue involves an application and reconciliation of the decision of the Supreme Court in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) holding that federal courts do not have jurisdiction to hear claims against Indian tribes under the ICRA except in habeas corpus proceedings; and Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981), reh. den., 450 U.S. 960, 101 S.Ct. 1421, 67 L.Ed.2d 385. There this court announced an exception to Santa Clara when it held that federal jurisdiction existed under the facts of the case. The Whites contend that their suit in federal court against the Pueblo of San Juan Tribe is not barred by the doctrine of sovereign immunity, because they satisfy the three requirements for federal court jurisdiction, allegedly enumerated by this court in Dry Creek. The Whites argue those requirements are:

1. involvement of a non-Indian in the action.

2. the alleged deprivation of an individual's real property interests; and

3. the absence of an adequate tribal remedy.

The Whites interpret Dry Creek as limiting the language of Santa Clara quoting:

... the reason for the limitation [against suing Indian tribes] and the references to tribal immunity [in Santa Clara ] also disappear when the issue relates to a matter outside of internal tribal affairs and when it concerns an issue with a non-Indian.

Dry Creek, supra, at 685. Accordingly the Whites maintain the federal district court possessed jurisdiction to hear their claims against the Pueblo for deprivation of civil rights under the ICRA, because non-Indians were involved and because the controversy did not merely involve internal tribal affairs.

The Whites also maintain that even if Dry Creek is interpreted narrowly to permit federal jurisdiction only in the absence of trial remedies, such federal jurisdiction exists under the facts of this case. The Whites allege that the Tribal Code of Law and Order for the People of San Juan, establishing the Tribal Court, was not properly adopted and published. Consequently, they contend, they cannot be barred from federal court for failure to exhaust the tribal remedies, citing Genuine Parts Company v. Federal Trade Commission, 445 F.2d 1382, 1394 (5th Cir.1971). This latter case held that a party was not barred from seeking judicial review of an administrative agency determination for failure to exhaust an uncertain, informal administrative remedy, at the time unreported in the Federal Register.

Furthermore, the Whites argue that even if the Code was validly adopted, the existence of the Tribal Court does not defeat federal jurisdiction, because the Tribal Court does not have jurisdiction over this type of civil action involving a non-Indian. They cite the Code's absence of an explicit jurisdictional grant in civil actions between the tribe and non-Indians and the requirement that in civil actions Tribal Court jurisdiction is predicated on the consent of the non-Indian party. Also argued by the Whites is that even if the Code is read to confer Tribal Court jurisdiction over this type of action, it is probably invalid, because there is no congressional authorization nor is the matter material or essential to tribal self-government, citing UNC Resources, Inc. v. Benally, 514 F.Supp. 358 (D.N.M.1981) (holding Navajo tribal Code ineffective as to conferral in tribal courts of civil jurisdiction over non-Indians as defendants). Accordingly, the Whites draw the conclusion that no valid tribal forum exists to redress the alleged deprivations, and, therefore, under the Dry Creek exception to Indian sovereign immunity, the federal district court had jurisdiction.

Our conclusion is not in accord with the statement just made because we are of the conclusion that the Indians enjoy immunity in this situation. The Pueblo of San Juan Indians contend that under the explicit holding of the United States Supreme Court in Santa Clara, the federal courts lack jurisdiction to hear complaints...