The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
09-459
THE TUNICA-BILOXI TRIBE OF LOUISIANA
VERSUS
JOHN BLALOCK, ET AL.
**********
APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2005-8606-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE
**********
MARC T. AMY
JUDGE
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Court composed of Marc T. Amy, Billy Howard Ezell, and James T. Genovese,
Judges.
AFFIRMED.
Genovese, J., dissents and assigns written reasons.
Ricky L. Sooter
Provosty, Sadler, deLaunay, Fiorenza & Sobel
Post Office Drawer 1791
Alexandria, LA 71309-1791
(318) 445-3631
COUNSEL FOR INTERVENOR/APPELLANT:
Riverview Resort and Marina, LLC
Jeanne M. Laborde
The Laborde Law Firm, L. L. C.
Post Office Box 80098
Lafayette, LA 70598-0098
(337) 261-2617
COUNSEL FOR PLAINTIFF/APPELLEE:
The Tunica-Biloxi Tribe of Louisiana
Cory P. Roy
Post Office Box 544
Marksville, LA 71351
(318) 240-7800
COUNSEL FOR DEFENDANTS/APPELLEES:
John Blalock
Barbara Boher Blalock
AMY, Judge.
The plaintiff tribe filed a possessory action in the Twelfth Judicial District
Court, seeking tort damages for use and a determination as to the ownership of
property in Avoyelles Parish. The trial court signed a stipulated judgment awarding
possession of the disputed property to the Tribe. The damages issue remained
pending. Subsequently, the appellant filed a petition of intervention, arguing that it
acquired a portion of the disputed tract prior to the filing of the possessory action.
The plaintiff filed an exception to the petition for intervention, asserting that the trial
court lacked subject matter jurisdiction due to sovereign immunity. The trial court
granted the exception. The intervenor appeals. We affirm.
Factual and Procedural Background
The Tunica-Biloxi Tribe of Louisiana filed a possessory action in the Twelfth
Judicial District Court against John and Barbara Blalock. The Tribe asserted that it
acquired and possessed a certain tract of property in Avoyelles Parish by virtue of a
1997 donation inter vivos and that the defendants disturbed its possession by certain
actions commencing in 2005. The activity complained of included the construction
of a fence, the removal of soil, and the placement of culverts into a channel of the Red
River in order to allegedly gain entry onto Tribal land. The Tribe sought damages
and an order requiring the defendants to return the property to its former condition
and prohibiting the defendants’ entry onto the property. The Tribe prayed for a
judgment “recognizing Plaintiff[’]s right to the possession of the immovable property
described above, and maintaining them in possession thereof[.]” The Tribe further
prayed that, in the event that the defendants did not assert an adverse claim of
ownership of the property in their answer, “that there be Judgment herein ordering the
Defendants to assert any adverse claim of ownership of the said immovable in a
Petitory Action to be filed within a delay to be fixed by the Court[.]”
However, the trial court never reached consideration of the ownership question.
At the hearing on the matter in December 2006, the parties entered into a stipulation,
converting the matter to a petitory action. The Blalocks also confessed possession
of the property to the Tribe. Thereafter, in July 2007, the trial court signed a resulting
Stipulated Judgment entered into between the parties. In the judgment, the Blalocks
confessed possession of the property to the Tribe, which was placed in legal
possession of the disputed tract. However, the Blalocks asserted “a claim of
ownership” as to one portion of the disputed property.1 The Tribe’s claim for
damages, costs, attorney fees, and expert fees was reserved for the trial on the merits.
Afterwards, in April 2008, River View Resort and Marina, L.L.C. filed a
Petition of Intervention asserting its right of possession of the portion of the disputed
property the Blalocks claimed in the stipulated judgment. River View contended that
it acquired the property by a September 6, 2005 Act of Exchange.2 River View
1
That portion of the stipulated judgment provides:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants, John
Blalock and Barbara Bohrer Blalock assert a claim of ownership of a portion of the above described
property more fully described as follows:
A certain tract or parcel land [sic] parcel of land together with all improvements
thereon, situated in and forming a portion of Section 2, 3 and 4 Township 2 North,
Range 3 East, formally [sic] lying North of the Red River, Avoyelles Parish,
Louisiana, said tract containing 45.74 acres, more or less, and being more clearly
shown on Plat of survey by Jessie P. Lachney, Registered Surveyor, dated November
8, 1983, a copy of said Plat attached hereto and made a part hereof for identification.
The tract herein being n [sic] being [sic] bounded, now or formerly, as follows:
Northeast by the centerline of the Old Red River Channel; South by Earl A. Aymond;
and on the West by the New Red River Channel[.]
2
The Petition of Intervention provides that:
Intervenor asserts that prior to the institution of the above captioned matter it acquired the
property for which the Blalocks were ordered to assert ownership by an instrument entitled “Act of
Exchange” dated September 6, 2005 and recorded September 7, 2005 at Conveyance Book 525, Page
713 under Instrument No. 2005-00006761 which described the following property to-wit:
2
alleged that it or its ancestors in title had corporeal or constructive possession of the
subject property beginning in January 1969. It asserted that the trial court “should
establish the boundary line between the lands owned by Intervenor and the land
owned by the Tunica Biloxi Indians of Louisiana.” The prayer of the petition of
intervention asked for “judgment in favor of River View Resort & Marina, LLC
recognizing it as legal owner of the property including accretion, Judgment
establishing a boundary between the properties; and Judgment ordering the Tunica
Biloxi Tribe of Louisiana to surrender possession of the property owned by the
Intervenor.” The Blalocks, answering the petition, admitted the allegations.
The Tribe filed an exception to the petition for intervention, which included
exceptions of lack of personal and subject matter jurisdiction, lis pendens, improper
cumulation of actions, and prescription. The Tribe also alleged that River View had
no cause or right of action. After a hearing, the trial court granted the exception of
lack of subject matter jurisdiction “[p]ursuant to the doctrine of sovereign
immunity[.]” In reasons for ruling, it explained:
A certain tract or parcel of land together with all improvements thereon, situated in
and forming a portion of Sections 2, 3, and 4, Township 2 North, Range 3 East,
formerly lying North of the Red River, Avoyelles Parish, Louisiana, said tract
containing 45.74 acres, more or less, and being more clearly shown on that plat of
survey by Jessie P. Lachney, Registered Surveyor, dated November 8, 1983, a copy
of which is recorded at COB A-86, page 89, records of Avoyelles Parish, Louisiana.
The tract herein being bounded, now or formerly, as follows: Northeast by the
centerline of the Old Red River Channel; South by A. Earl Aymond; and on the West
by the New Red River Channel.
Being the same property acquired by John W. Blalock and Barbara Bohrer Blalock
from Frank W. Campbell, et ux per Sale with Mortgage recorded in COB A-357,
page 86, and in MOB 352, page 240, records of Avoyelles Parish, Louisiana.
Rights as land owner to that certain 25 foot right of passage (predial servitude)
granted to John and Barbara Blalock and their property in #96-3217 A of the 12th
Judicial District Court in the matter entitled “John Blalock vs. Glenda Bourgeois
Franklin, et al.” and as described on the plat of Frank Willis attached to the judgment
and recorded in the conveyance records of Avoyelles Parish at COB A-472, page 106
(See also judgment in the same suit rendered October 30, 2002, recorded in COB A-
524, Page 793).
3
[D]espite the fact that the Blalocks are the sole owners of River
View Resort & Marina, L.L.C., River View is a separate legal entity and
was not a party to prior actions which resulted in the Stipulated
Judgment, signed in July 2007 (noted supra). The Tunica Tribe never
waived sovereign immunity as to River View. The prior pleadings by
the Tunica Tribe requested that the Blalocks assert any claim of
ownership. The Tribe did not request that any legal entity or person
assert ownership in these 12th JDC proceedings. There is no overt action
by the Tunica Tribe which suggests that sovereign immunity is waived
as to this defendant.
It is well established that Indian tribes possess sovereign
immunity from suit that existed at common law. Rosebud Sioux Tribe
v. A & P Steel, Inc., 874 F. 2d 550, 552 (8th Cir. 1989). The Tribe may
waive this immunity. A waiver of sovereign immunity may not be
implied, but must be unequivocally expressed by either the Tribe or
Congress. Id. Tribes possess immunity because they are sovereigns
predating the Constitution. Indian tribes are ‘domestic dependent
nations’ that exercise inherent sovereign authority over their members
and territories. American Indian [Agric. Credit Consort., Inc.] v.
Standing Rock Sioux Tribe, 780 F. 2d 1374, 1378 (8th Cir. 1985).
(Citations omitted.) Suits against Indian tribes are thus barred by
sovereign immunity absent a clear waiver by the tribe or congressional
abrogation.
This tribal immunity extends to immunity from counterclaims and
cross-claims. (American Indian, noted supra.)
La. Code of Civ. Pro. Article 1091, 1036, provide that a petition
for intervention may be filed in certain circumstances, but the court has
jurisdiction over the incidental demand only if it has jurisdiction over
the principal demand.
Pursuant to the doctrine of sovereign immunity, the Exception to
the Petition is granted.
The trial court found the remaining exceptions moot.
On appeal, River View asserts that the trial court “erred in sustaining the
Exception of Lack of Subject Matter Jurisdiction by holding that the Tribe did not
overtly consent to the Jurisdiction of the 12th Judicial District Court to determine
ownership of the Disputed Property.”
4
Discussion
River View contests the trial court’s determination that the Tribe did not waive
its immunity to suit in state court in light of its filing of suit against the Blalocks in
the Twelfth Judicial District Court. It submits that the Tribe waived its immunity by
submitting “the subject matter of possession and ownership” of the disputed property
to the state court in the filing of the initial petition.
River View acknowledges the longstanding principle that Native American
tribes possess sovereign immunity and are subject to suit only in the presence of
Congressional authorization of the suit or waiver of immunity. See Kiowa Tribe of
Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700 (1998).
It also acknowledges both that a tribe’s waiver of its sovereign immunity must be
clear and that a tribe is typically immune from counterclaims and cross-claims. See
C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532
U.S. 411, 121 S.Ct. 1589 (2001); U.S. v. U.S. Fid. & Guar., Co., 309 U.S. 506, 60
S.Ct. 653 (1940). However, River View contends that, in this case, the Tribe waived
its sovereign immunity by operation of equitable recoupment3, a concept River View
asserts implies waiver of immunity for matters arising out of the same transaction or
occurrence as a suit in which the tribe has, in fact, waived immunity. Citing Jicarilla
Apache Tribe v. Andrus, 687 F.2d 1324 (10th Cir. 1982); FDIC v. Hulsey, 22 F.3d
1472 (10th Cir. 1994).
3
Equitable Recoupment is defined in BLACK’S LAW DICTIONARY 373 (abridged 6th ed.
1991) as:
Rule of the law which diminishes the right of a party invoking legal process
to recover a debt, to the extent that he holds money or property of his debtor, to
which he has no moral right, and it is ordinarily a defense remedy going only to
mitigation of damages. This doctrine provides that, at least in some cases, a claim
for a refund of taxes barred by a statute of limitations may nevertheless be recouped
against a tax claim of the government.
5
The parties accurately frame the question of whether the Tribe possesses
sovereign immunity as a jurisdictional question. See Rupp v. Omaha Indian Tribe,
45 F.3d 1241 (8th Cir. 1995), citing Puyallup Tribe, Inc. v. Washington Game Dep’t,
433 U.S. 165, 97 S.Ct. 2616 (1977). We review the ruling on the Tribe’s exception
pursuant to the de novo standard of review. Id.
River View argues that the underlying subject matter of this case is the
ownership of the property and, thus, the Tribe has waived sovereign immunity with
regard to other parties claiming ownership of that property. In support of its
argument, River View points to two federal cases, Rupp, 45 F.3d 1241 and Wyandotte
Nation v. City of Kansas City, Kansas, 200 F.Supp.2d 1279 (D. Kansas. 2002), in
which counterclaims were allowed to proceed against plaintiff tribes due to the
application of equitable recoupment. River View contends this concept provides an
avenue for its intervention.
In both Rupp and Wyandotte, however, the parties permitted to maintain
counterclaims against the plaintiff tribes were defendants in the underlying matter. As
is obvious by its petition of intervention, River View was not named by the Tribe as
a defendant like the Rupp and Wyandotte parties. Rather, the Tribe named the
Blalocks as the sole defendants in the underlying matter, initially for possessory
damages in tort, and then for a determination as to ownership of the larger parcel of
property originally at issue.
In Rupp, 45 F.3d 1241, a suit in which the plaintiff tribe originally filed suit
against the defendants to quiet title in disputed land, the Eighth Circuit considered
whether defendants could maintain a counterclaim despite the previous dismissal of
6
the plaintiff tribe as the result of the imposition of a discovery sanction. The court
explained that:
By initiating a lawsuit, the Tribe “waives immunity as to claims of
the defendant which assert matters in recoupment-arising out of the same
transaction or occurrence which is the subject matter . . . [the] suit.”
Rosebud Sioux Tribe, 874 F.2d at 552. The commencement of a lawsuit
by itself does not, however, operate as a waiver of immunity with respect
to compulsory counterclaims. Oklahoma Tax Comm’n v. Potawatomi
Indian Tribe, 498 U.S. 505, 508-09, 111 S.Ct. 905, 909, 112 L.Ed.2d 112
(1991). Oklahoma Tax Commission held that a suit filed by the
Potawatomi tribe to enjoin the state from collecting certain taxes did not
waive the tribe’s sovereign immunity with respect to a counterclaim to
enforce the state’s tax assessment and enjoin the tribe to collect state
sales taxes in the future. Id. at 506-08, 111 S.Ct. at 908.
Id. at 1244 (emphasis added) (alteration in original). The Eighth Circuit remarked that
the plaintiff tribe “did not merely file a quiet title action.” Id. Rather, it asked the trial
court “to order the defendants to assert any claims in the disputed lands they possessed
against the Tribe[.]” Id. (Emphasis added.) Additionally, the Eighth Circuit pointed
to specific language in the plaintiff tribe’s prayer and explained that:
This additional language explicitly requesting Rupp and Henderson to
assert any “right, title, interest or estate” they may have in the disputed
land is an unequivocal consent to any counterclaims asserted by Rupp
and Henderson to quiet title and award damages in their respective
names. Although waivers of soverein immunity cannot be implied and
are to be strictly construed in favor of the Tribe, this test is satisfied by
the Tribe’s affirmative request that Rupp and Henderson assert their
claims in the disputed land.
Id. at 1244-45. In light of these express actions, the Eighth Circuit found that the
plaintiff tribe waived its sovereign immunity. It noted that “[b]y requesting equitable
relief, the Tribe consented to the district court exercising its equitable discretion to
resolve the status of the disputed lands.” Id. at 1245. While the language regarding
resolution of the status of the disputed land is seemingly applicable to this case, the
opinion addresses a situation in which the claim of an unnamed party was not at issue.
7
In sum, the Eighth Circuit remarked that: “To hold that the district court could
exercise its discretion to quiet title in favor of the plaintiff (the Tribe) but not the
defendant (Rupp and Henderson) would be anomalous and contrary to the court’s
broad equitable powers.” Id.
In this case, the language in the Tribe’s original possessory action provided that:
WHEREFORE, Plaintiff prays that the defendants be duly served
with a copy of the petition and citation, and after all legal delays and due
proceedings had, there be judgment in favor of Plaintiffs, THE TUNICA-
BILOXI TRIBE OF LOUISIANA and Defendants JOHN W. BLALOCK
AND BARBARA BOHRER BLALOCK recognizing Plaintiffs right to
the possession of the immovable property described above, and
maintaining them in possession thereof, and in the event that the
Defendants do not assert an adverse claim of ownership of the
immovable property in his answer hereto, that there be Judgment herein
ordering the Defendants to assert any adverse claim of ownership of the
said immovable in a Petitory Action to be filed within a delay to be fixed
by the Court to not exceed sixty (60) days after the date the Judgment
becomes executory, or be precluded thereafter from asserting the
ownership thereof.
(Emphasis added.) No reference is made to other parties. Neither does the subsequent
stipulated judgment reference other parties.
Another case advanced by River View, Wyandotte, 200 F.Supp.2d 1279, also
involves the waiver of a plaintiff tribe’s sovereign immunity in a quiet title suit filed
against certain defendants. As in Rupp, the defendants seeking to maintain claims
against the plaintiff tribe were named parties in the original suit. Furthermore, it
reflects that equitable recoupment requires that the claim under review share a
common nexus with the underlying claim. Citing Frederick v. United States, 386 F.2d
481 (5th Cir. 1967), the federal district court in Wyandotte explained that:
Equitable recoupment is an exception to the doctrine of sovereign
immunity which recognizes that by bringing a claim, a state or tribe
necessarily waives immunity for matters “arising out of the same
transaction or occurrence” which is the subject matter of the suit, to the
8
extent the counterclaims do not seek relief “different in kind or nature”
or “exceeding the amount” of the relief sought by the state or tribe.
Id. at 1285 (emphasis added). The federal district court relied on Rupp in finding that
the defendants could maintain a counterclaim to quiet title against the plaintiff tribe
as “the tribe’s action in filing a quiet title suit necessarily places before the court the
issue of whether plaintiff or defendants hold title to the land.” Id. However, it
determined that those defendants could not maintain a counterclaim for reimbursement
of improvements made to the subject land. Id. It concluded that, although the
reimbursement claim arose out of the same transaction or occurrence as the quiet title
claim, “it clearly [was] ‘different in kind and nature’ from the quiet title and trespass
claims brought by the tribe” and that it “‘exceed[ed] the amount of relief’ sought by
the tribe.” Id. at 1286, quoting Jicarilla, 687 F.2d at 1345.
In addition to River View not being a named defendant, Wyandotte and
Jicarilla’s consideration of the nature and scope of the relief sought is pertinent to this
case as well. The Tribe filed its initial possessory action against the Blalocks seeking
damages and requesting the filing of any adverse ownership claim by the Blalocks
over a larger parcel of property. Notably, River View is absent both from this petition
and from the subsequent stipulated judgment in which the Blalocks asserted an
ownership interest in the portion of the disputed property now claimed by River View.
In addition to asserting its own ownership interest via the petition of intervention,
Riverview seeks a judgment establishing a boundary between the larger parcel now
in possession by the Tribe and the parcel claimed by the Blalocks and, now, River
View. It also seeks a “Judgment ordering the Tunica Biloxi Tribe of Louisiana to
surrender possession of the property owned by the Intervenor.”
9
To find that the Tribe waived its sovereign immunity against River View in light
of its prayer for damages and a determination as to ownership interest of the property
against the Blalocks would require a determination of implied waiver. However, a
waiver of sovereign immunity cannot be implied, but must be express. Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670 (1978); Price v. United States, 174
U.S. 373, 19 S.Ct. 765 (1899). See also Bonnette v. Tunica-Biloxi Indians, 02-919
(La.App. 3 Cir. 5/28/03), 873 So.2d 1. In this case, the Tribe has not expressly waived
its sovereign immunity to suit over this subject matter by this third party.
We find no error in the trial court’s maintaining of the exception of subject
matter jurisdiction.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. All costs
of this appeal are assessed to the appellant, River View Resort & Marina, LLC.
AFFIRMED.
10
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
09-459
THE TUNICA-BILOXI TRIBE OF LOUISIANA
VERSUS
JOHN BLALOCK, ET AL.
GENOVESE, J., dissents and assigns the following reasons.
I find that the doctrine of equitable recoupment applies in this case. When the
tribe filed suit in state court in this matter, unquestionably, the object of its demand
was the possession and ownership, vel non, of the disputed property. When that
claim was brought in state court by the tribe, it waived immunity on the issues of
possession and ownership. The doctrine of equitable recoupment is an exception to
the doctrine of sovereign immunity. Thus, by the tribe bringing a claim in state court
over disputed property rights, it waived immunity for matters “arising out of the same
transaction or occurrence.” The contested issues of possession and ownership are
part and parcel of the tribe’s disputed property claim and arise out of the same
transaction or occurrence regarding same. As a result thereby, tribal immunity was
waived.
I would reverse the trial court and deny the tribe’s exception of lack of subject
matter jurisdiction and remand the matter to state court for further proceedings.