Atkinson v. Haldane

BOOCHEVER, Chief Justice,

dissenting.

I dissent from the majority opinion in this case. Although the courts and the commentators provide little support for my position, I believe that the outmoded doctrine of sovereign immunity is inapplicable in this case, and that the motion for summary judgment was improperly granted.

Title 28 U.S.C. § 1360 (a) 1 confers jurisdiction on Alaskan courts over civil causes *176 of action to which Indians are parties which arise in Indian country. Since this case falls within that category, the Alaskan courts have jurisdiction to determine whether, the doctrine of sovereign immunity bars this action. To make this determination, I would initially look to 25 U.S.C. § 1302 , 2 the Indian Bill of Rights, by way of analogy. This section prohibits Indian tribes from abridging civil rights in their exercise of self-government. Although the statute does not expressly waive the immunity of the tribes, such waivers have been inferred. 3 Moreover, claims for damages under 1302 have been upheld. 4

In my view, the reasons for permitting a waiver of immunity in eases involving civil rights are equally applicable to tort action. Both involve the conduct of governmental officials of the tribe and can result in monetary judgments. Additionally, I believe that both actions may be brought in state court. 5

The integrity and vitality of tribal self-government will be no more impaired by allowing tort suits than by permitting actions under § 1302. Furthermore, just as the Indian Bill of Rights could be considered to strengthen tribal self-government by assuring the liberties of its individ *177 ual members, tort actions may have the salutary effect of encouraging the tribe to perform its governmental functions with greater care.

The majority bolsters its reading of the case law with the policy argument that the protection of tribal assets is an additional reason for upholding the immunity of the community. I find this argument unpersuasive. Title 28 U.S.C. § 1360 (b) 6 prohibits state courts from adjudicating rights in certain tribal property. 7 Therefore, as long as property belonging to the tribe is held in trust or subject to restraints on alienation, it is immune from execution, regardless of whether suit against the community is allowed. Instead, a judgment against the tribe could be satisfied by insurance proceeds. There is no prohibition against the community’s obtaining insurance, and in fact, the record of this case indicates that insurance was obtained. In all likelihood, the position taken by the community in this litigation was dictated by the policy provisions requiring cooperation with its carrier. 8

.In conclusion, I find no reason that Met-lakatla should be treated differently from other Alaskan communities for purposes of liability.- The history of the community is unlike that of other Alaskan Natives and the Indians of the other states and suggests almost total integration into Alaskan life and government. 9 It is true that in Metlakatla Indian Community v. Egan, 369 U.S. 45 , 82 S.Ct. 552 , 7 L.Ed.2d 562 (1962), the United States Supreme Court held that federal regulations permitting the use of fish traps precluded the assertion of state authority to prohibit them. However, like Bryan v. Itasca County, 426 U.S. 373 , 96 S.Ct. 2102 , 48 L.Ed.2d 710 (1976), 10 the Met-lakatia case involved a question of state regulatory laws rather than application of common law permitting private causes of action against governmental bodies. While subjecting tribal governments to “the full panoply of civil regulatory powers” may raise legitimate concerns regarding the continued viability of Indian self-government, 11 *178 such threats do not appear to be posed by permitting private tort actions.

The position adopted by the court is reminiscent of cases upholding the sovereign immunity of municipalities. The need for immunity was explained in part on the basis that: (1) there were no corporate funds out of which satisfaction could be obtained;

(2) the municipality derives no profit from the exercise of its government functions, which are solely for the public benefit and

(3) cities cannot carry on their governments if money raised by taxation for public use is diverted to making good the torts of employees. According to Prosser, however:

Virtually all writers have agreed that no one of these reasons for denying liability is sound, and all of them can be found to have been rejected at one time or another in the decided cases. The current of criticism has been that it is better that the losses due to tortious conduct should fall upon the municipality rather than the injured individual, and that the torts of public employees are properly to be regarded, as in other cases of vicarious liability, as a cost of the administration of government, which should be distributed by taxes to the public. Whether as a result of this criticism or not, there has been a marked and steady trend in -the direction of an extension of municipal tort liability, either by finding that the particular activity of the defendant is not a “governmental” one, or by discovering special reasons to take it out of the general rule. For many years, however, the courts were so far bound and hogtied by precedent and existing classifications, that it appeared that any real reform of the law must come by statutes. It is only quite recently that any general movement for alteration of the common law has been initiated, (footnotes omitted) 12

The majority is under the impression that this dissent overlooks the supremacy of federal law as it pertains to tribal sovereign immunity. Tribal sovereign immunity has not been established by statute, but is a federally court-made doctrine. 13 As such, it is subject to modification by the federal courts and also to determinations as to its applicability to particular facts and circumstances. There has been no federal decision as to the applicability of the doctrine to tribal sovereign immunity involving suits brought by Indians for torts of the Metla-katla community, and of the applicability of 28 U.S.C. § 1360 to such litigation. This dissent in its suggested disposition of the suit recognizes that a federal question is involved, but until that question is resolved by the United States Supreme Court, a state court may use its best judgment in determining the nature of the applicable federal law. For the reasons outlined above, I believe that the doctrine of tribal sovereign immunity should not be applicable.

I would hold that the suit is not barred by sovereign immunity and would affirm the decision below.

. 28 U.S.C. § 1360 (a) states:

State civil jurisdiction in actions to which Indians are parties

(a) Each of the States or Territories listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over other civil causes of action, and those civil laws of such State or Territory that are of general application to private persons or private property shall have the same force and effect within such Indian *176 country as they have elsewhere within the State or Territory:

State or Territory of Indian country affected

Alaska .All Indian country within the Territory

. 25 U.S.C. § 1302 provides:

Constitutional rights

No Indian tribe in exercising powers of self-government shall—

(1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;

(2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;

(3) subject any person for the same offense to be twice put in jeopardy;

(4) compel any person in any criminal case to be a witness against himself;

(5) take any private property for a public use without just compensation;

(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense;

(7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of six months or a fine of $500, or both;

(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;

(9) pass any bill of attainder or ex post facto law; or

(10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.

. Loncassion v. Leekity, 334 F.Supp. 370 (D.N.M.1971). Other cases applying a similar analysis include Brunette v. Dann, 417 F.Supp. 1382 (D.Idaho 1976); Means v. Wilson, 522 F.2d 833 (8th Cir. 1975); Dry Creek Lodge, Inc. v. United States, 515 F.2d 926 (10th Cir. 1973); Johnson v. Lower Elwha Tribal Community of Lower Elwha Indian Reservation, Washington, 484 F.2d 200 (9th Cir. 1073); Wiliams v. Sisseton-Wahpeton Sioux Tribal Council, 387 F.Supp. 1194 (D.S.D.1975). See also Fontenelle v. Omaha Tribe of Nebraska, 430 F.2d 143 (8th Cir. 1970). In Fontenelle , the court interpreted the provisions of 25 U.S.C. § 345 as a waiver of sovereign immunity. That section creates a cause of action in district court for any person of Indian blood who alleges an unlawful denial or exclusion from an allotment.

. See Lohnes v. Cloud, 366 F.Supp. 619 (D.N.D.1973); Loncassion v. Leekity, 334 F.Supp. 370 (D.N.M.1971).

. Plaintiffs below alleged an additional cause of action based on 28 U.S.C. § 1302 , claiming that the Metlakatla policemen conspired to violate their civil rights. The superior court concluded that state courts lacked jurisdiction to hear this claim. Although no appeal was taken from that ruling, I believe that a § 1302 action is a “civil action between Indians or to which Indians are parties” and falls within the scope of jurisdiction granted to state courts by 28 U.S.C. § 1360 (a).

. 28 U.S.C. § 1360 (b) states:

(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein.

. The majority in Footnote 59 recognizes that § 1360(b) prohibiting alienation or encumbrance of property of an Indian tribe that is held in trust by the United States or is subject to a restriction on alienation imposed by the United States “serves the same interest that the doctrine of sovereign immunity serves, i. e., the preservation of tribal trust property from ‘encumbrances.’ ” It seems to me that a strong argument may be made that Congress had no need to insert such statutory immunity if it had not intended that suits could be brought against Indian tribes under authority of § 1360(a).

. The policy states:

(c) The insured shall cooperate with the company and, upon the company’s request, assist in making settlements, in the conduct of suits and enforcing any right of contribution or indemnity against any person or organization who may be liable to the insured because of injury or damage with respect to which insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first aid to others at the time of accident.

. See Metlakatka Indian Community v. Egan, 369 U.S. 45 , 82 S.Ct. at 556-57, 50-51 , 7 L.Ed.2d 562, 567-68 (1962).

. Bryan involved an action brought by a reservation Indian seeking a declaration that the county lacked authority to impose a personal property tax on his mobile home located on land held in trust. Narrowly interpreting § 1360(a), the Supreme Court reversed the decision below and held that the grant of jurisdiction and of applicability of state laws did not also grant the state the authority to tax.

. 426 U.S. at 388-89 , 96 S.Ct. at 2111 , 48 L.Ed.2d at 721 .

. W. Prosser, The Law of Torts, pp. 978-79 (4th ed. 1971).

. The doctrine evolved from the case of Worcester v. Georgia, 31 U.S. (6 Pet.) 515 , 8 L.Ed. 483 (1832).