Opposition Brief — Parisien v. Twin City Construction Co.

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upreme Court of the United States

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QUESTIONS PRESENTED

1. Does a tribal court have civil jurisdiction over a

non-Indian defendant when the non-Indian defendant is

not present on the reservation and when the civil contract

dispute has no direct effect on the tribe as a whole?

2. Does a federal district court have the authority to

determine that a tribal court has improperly asserted

jurisdiction over a non-Indian defendant?

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TABLE OF CONTENTS

Page

SLB ed ree FO ERS 0's see Ce eee eae ee i

TA oe A PRL: 656 40 bee ee eee ili

STALE. GP 9s CASE... 6. 066¢cadee eee 1

PRA REEWE ic eh ka ss ane 92 oh ae ee eee 4

A. THE EIGHTH CIRCUIT DECISION IS CON-

SISTENT WITH ESTABLISHED PRECE-

EPO 3 tee Fv evn ska Senet eee 4

1. The Decision Conforms To Prior

Supreme Court Decisions.............. 4

2. No Conflict Exists Between the Circuits.. 9

B. THE EIGHTH CIRCUIT PROPERLY

AFFIRMED THE DISTRICT COURT'S

DETERMINATION THAT THE TRIBAL

COURT DID NOT HAVE SUBJECT MATTER

SUPRISE. REGIE: on cco x hae a eee eee 11

1. A Federal District Court Has the Author-

ity to Decide Whether a Tribal Court Has

Asserted Jurisdiction Beyond Lawful

CRONE 0s x ios «oe kg eh ow ae ae 11

hN

The Tribal Code Did Not Permit the

Assertion of Jurisdiction............... 12

&% | OD | on NEP E Eerie Ce ys Se 15

TABLE OF AUTHORITIES

Page

I , Y oe @ , 7) day TIIT07 4

Burger King Corp. v. Ruazewicz, 4,

Hasse v. American Photograph Corp., 299 F.2d 666

ee ee ae rea 14

lowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9

} ’ ; ) J f Choctaw | » 7% } LuteolinA OU

Ississippl Band of Choctaw Indians v. Holyfield, 97

U.S.L.W. 4409 (U.S. April 3, 1989).....-.-.--- eae

A 4

Montana v. United States, 450 U.S. 544 (1981) .... passim

rs Union Insurance Co. v. Crow irive,

National Farme

2 SS) ea ace i rei Pes ye

471 U.

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

na NT re ee ea Pee

R. |. Williams Co. v. Fort Belknap Housing Authority,

509 F.Supp. 939 (D. Mont. 1951) ....---------+e es 14

Rogers v. Firestone Tire and Rubber Co., 599 F.Supp.

676 (S. yy aks Vie ha x ce oe te ee HO 14

Sanders v. Robinson, 864 F.2d 630 (9th Cir. 1988) .. 9, 10

Santa Clara Pueblo v. Martinez, 436 LS. Oo (1970) 243. 4

Townsend v. Sain, 372 U.S. 293 (1963).....--.+++ +++: i2

United States v. Wheeler, 435 U. S. 313 Sh) 4.5

Washington v. Confederated Tribes of Colville Indian

Reservation, 447 U.S. 134 ED Ne ga cp ak 0. RS BEN 9

iv

TABLE OF AUTHORITIES-Continued

Williams v. Lee, 358 U.S. 218 (1959)................ 5, 6

OtHeR AUTHORITIES

Turtle Mountain Tribal Code § 2.0102(1)............. 12

In The

Supreme Court of the United States

October Term, 1988

+

On Petition for Writ of Certiorari

to the United States Court of

Appeals for the Eighth Circuit

+

BRIEF IN OPPOSITION

hN

in North Dakota. Petitioner Ernest V. Parisien (Parisien)

was a tribal member who performed work for Twin City

by a subcontract dated October 7, 1981. In December

1982, Twin City took over work on the subcontract

because Parisien refused to complete his work in a timely

manner. When Twin City took over work on the sub-

contract, Parisien had already been paid at least 75% of

the subcontract price.

In 1984, Parisien filed suit against Twin City in tribal

court for the full amount of the subcontract, and for

consequential damages allegedly resulting from breach of

the subcontract. At the time Parisien commenced suit,

Twin City was not performing work on the reservation.

Twin City contended that the tribal court did not have

jurisdiction of the matter.

The Turtle Mountain Tribal Court ruled that it did

not have jurisdiction because Twin City was not a mem-

ber of the tribe and had not submitted to the court’s

jurisdiction. (A-49). The Turtle Mountain Court of

Appeals reversed. The tribal appellate court did not rest

its conclusion upon the tribe’s jurisdictional statute;

instead, the tribal appellate court found that the tribal

court could assert jurisdiction on the basis of federal

common law. (A-42).

After the tribal appellate court issued its ruling, Twin

City sought declaratory and injunctive relief in the

United States District Court for the District of North

Dakota. On August 21, 1987, the district court issued a

permanent injunction, prohibiting Parisien from proceed-

ing further with his action in tribal court. (A-22). The

ae

court found that Twin City had not expressly submitted

to the trial court’s jurisdiction, a tribal code requirement

for the assertion of jurisdiction. (A-25).

Parisien appealed and a divided panel of the Eighth

Circuit Court of Appeals reversed. (A-6). Twin City’s

request for rehearing en banc was granted on November

10, 1988. (A-5). An equally divided en banc judgment was

entered on January 11, 1989. (A-1). Judges McMillian,

Bowman, Wollman, Magill, and Bean voted to affirm the

district court’s determination that the tribal court did not

have subject matter jurisdiction. Chief Judge Lay and

Judges Heaney, Arnold, John R. Gibson, and Fagg voted

OO

to reverse. Thus, the equally divided court affirmed the

district court’s judgment. (A-3).

Parisien has now petitioned this Court to issue a writ

of certiorari to review the en banc judgment of the United

States Court of Appeals for the Eighth Circuit. Twin City

opposes Parisien’s petition on the grounds that the

Eighth Circuit’s affirmance of the district court’s decision

is in accord with established United States Supreme

Court precedent, there is no conflict between the circuits,

and the district court correctly determined that the tribal

court did not have subject matter jurisdiction over the

dispute between Parisien and Twin City.

a

. 4

ARGUMENT

A. THE EIGHTH CIRCUIT DECISION IS CON-

SISTENT WITH ESTABLISHED PRECEDENT.

1. The Decision Conforms To Prior Supreme

Court Decisions.

When the district court and the Eighth Circuit Court

of Appeals addressed the issue of the extent of tribal

jurisdiction over non-Indian defendants, the courts had

guidance from a number of previous decisions by this

Court. The Indian tribes have long been recognized as

having the powers of a limited sovereign. United States v.

Wheeler, 435 U.S. 313, 322-23 (1978). The tribes retain

those attributes of sovereignty which permit them to

regulate and control internal tribal relations. Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 55 (1978). However, cer-

tain attributes of tribal authority have been lost. Montana

v. United States, 450 U.S. 544, 563 (1981).

One area in which sovereignty has been diminished

is in the realm of authority over non-Indians. For exam-

ple, Indian tribes do not have the inherent retained juris-

diction to try and punish non-Indians criminally. Oliphant

v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978). As to

criminal jurisdiction, there is neither inherent tribal sov-

ereignty mor congressionally delegated authority over

non-Indians. Id. at 208. Thus, an important guidepost as

to the reach of tribal court jurisdiction was established in

Oliphant.

The nature of tribal sovereignty was also discussed in

United States v. Wheeler. In Wheeler, this Court noted that

implicit divestiture of tribal sovereignty has occurred

with respect to the relations between an Indian tribe and

non-members of the tribe. Jd. at 326. Both Oliphant and

Wheeler addressed the question of the reach of the crimi-

nal jurisdiction of a tribal court. When this Court first

commented on the extent of tribal power to exercise civil

authority over the conduct of non-Indians, both criminal

cases were relied upon. See Montana, 450 U.S. at 563-65.

In Montana, the issue was whether an Indian tribe

could regulate hunting and fishing by non-Indians on

lands within the reservation owned in fee simple by non-

Indians. Id. at 547. One of the claimed grounds for the

exercise of such power was that the tribe had retained the

power as an incident of inherent sovereignty. Id. at 563. In

an important statement regarding tribal authority, this

Court noted that “the exercise of tribal power beyond

what is necessary to protect tribal self-government or to

control internal relations is inconsistent with the depen-

dant status of the tribes, and so cannot survive without

express congressional delegation.” Id. at 564.

As a general rule, the reach of an Indian tribe's

inherent sovereign powers does not extend to the activ-

ities of non-Indians. Id. at 565. However, there are limited

instances in which the tribes have retained the power to

exercise some form of civil jurisdiction over non-Indians.

Id. Tribes may regulate the activities of non-members

who enter consensual relations with the tribe or its mem-

bers. Id. A tribe may also exercise civil authority if the

non-Indian’s conduct “threatens or has some direct effect

on the political integrity, the economic security, or the

health or welfare of the tribe.” Id. at 566.

An example of the tribe’s authority to regulate the

activities of non-Indians may be found in Williams v. Lee,

358 U.S. 218 (1959). In Williams v. Lee, this Court held that

a non-Indian who operated a general store on an Indian

reservation must sue an Indian defendant in tribal court

to collect for goods sold to the Indian on the reservation.

The non-Indian plaintiff operated his reservation store

under a federally-mandated license which required that

the store owner submit to regulations prescribed by the

Commissioner of Indian Affairs for the protection of

Indians. Id. at 217 n.1. The holding in Williams v. Lee

should be limited to its facts: a non-Indian plaintiff must

sue an Indian defendant in tribal court. Williams v. Lee

offers no guidance as to whether a non-Indian defendant

is subject to the jurisdiction of the tribal court after the

non-Indian defendant is no longer present and doing

work on the reservation.

The authority to regulate a non-Indian’s conduct gen-

erally relates to taxation, licensing or other forms of

regulation. Montana, 450 U.S. at 565. Presumably, civil

jurisdiction over non-Indians would extend to enable

enforcement of such regulation. However, Parisien’s suit

against Twin City does not contemplate any enforcement

of a regulation, so Montana does not support the assertion

of jurisdiction over the Parisien/Twin City dispute.

A tribe’s sovereignty also extends to conduct which

has a direct effect on the political integrity, economic

security, or the health or welfare of the tribe. Montana,

450 U.S. at 566. In Montana, this Court found that the

non-Indian hunting and fishing did not threaten the

tribe’s political or economic security. Id. The dispute

between Parisien and Twin City similarly does not

threaten the tribe as a whole. The dispute is a simple

contract dispute, regarding payment on a subcontract.

Magistrate Karen Klein’s report and recommendation

filed on June 30, 1987 in this case found that the tribe was

not affected by the dispute as a tribe. (A-33). She further

found that there was no threat to tribal self-government

or to tribal control of internal relations. Jd. Thus, the

district court’s ruling that the tribal court did not have

jurisdiction over Twin City is consistent with Montana.

Petitioner contends that two relatively recent cases

support the proposition that tribal court jurisdiction of

non-Indian defendants is presumed. First, petitioner

relies upon National Farmers Union Insurance Co. v. Crow

Tribe, 471 U.S. 845 (1985). In National Farmers Union, a

non-Indian defendant objected to the tribal court’s asser-

tion of civil jurisdiction. Petitioner contends that this

Court’s holding was “that tribal civil adjudicatory juris-

diction has not been generally divested or implicitly lim-

ited by federal law.” Petitioner’s brief at 15. A more

precise statement of the holding of National Farmers Union

is that a non-Indian defendant must first exhaust his

tribal court remedies before asking a federal court to

determine whether a tribal court has exceeded the limits

of its jurisdiction. 471 U.S. at 857. In fact, this Court

decided nothing as to the reach of a tribal court’s jurisdic-

tion, but merely ruled that a tribal court must carefully

examine tribal sovereignty, the extent to which the sover-

eignty has been divested or diminished, and federal stat-

utes and policies which might affect tribal jurisdiction. Id.

at 855-56. Thus, National Farmers Union does not support

the proposition that jurisdiction over a non-Indian defen-

dant is presumptively in the tribal court.

The other recent case relied upon by petitioner is

Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987). In

lowa Mutual, the issue was whether the diversity statute

was a congressional limitation on a tribe’s jurisdiction. Id.

at 11. In ruling that the diversity statute was not a dimin-

ishment of tribal authority, the Court held that the non-

Indian defendant must first exhaust the available tribal

court remedies before commencing suit in federal court.

Id. at 19.

Petitioner relies upon language in Jowa Mutual which

states that “[c]livil jurisdiction over such activities pre-

sumptively lies in the tribal courts unless affirmatively

limited by a specific treaty provision or federal statute.

Id. at 18. In order to determine whether petitioner’s alle-

sf

gation that jurisdiction over the Parisien/Twin City dis-

pute “presumptively” lies in the tribal court, it is

important to analyze what the Court meant by “such

activities.” The phrase “such activities” refers to the com-

ment that tribal authority over the activities of non-

Indians is an important aspect of tribal sovereignty. Id. at

18. When making the comment, the court specifically

referred to certain cases which help define those activities

as to which there may be tribal jurisdiction over non-

Indians.

One of the cases relied upon to describe the activities

was Montana. Montana held that a tribe may regulate the

activities of non-members who enter into consensual rela-

tions with the tribe and may exercise civil authority if

there is a direct effect on the tribe as a whole. Montana,

450 U.S. at 565. Neither condition is present in the Pari-

sien/Twin City dispute, so the “presumptive” jurisdiction

would not lie.

In addition to Montana, the lowa Mutual Court

referred to Washington v. Confederated Tribes of Colville

Indian Reservation, 447 U.S. 134 (1980). In Washington v.

Confederated Tribes, the Court held that the state of Wash-

ington could properly tax sales to non-members of the

tribe, but not sales to members. Id. at 159-61. Although

the Court was not discussing civil jurisdiction, tribal

sovereignty was found not to preclude a siate’s decision

to impose taxes on sales both to non-Indians and to

Indians resident on the reservation but not enrolled in the

tribe. Id. Thus, this Court has recognized that a tribe is

sovereign with respect to its own members, but to a lesser

extent with non-Indian activities on the reservation. lowa

Mutual does not require a finding that a non-Indian

defendant is subject to the jurisdiction of the tribal court.

The most relevant Supreme Court precedent regard-

ing tribal court jurisdiction over non-Indian defendants

is, therefore, found in Montana. Because this case does not

involve regulation of the activities of nor-Indians who

come in contact with the tribe or tribal members, and

because Parisien’s dispute with Twin City has no direct

effect on the tribe, the district court properly issued an

injunction prohibiting Parisien from proceeding further

with the tribal court action. The Eighth Circuit affirmance

of the district court’s opinion was in accordance with

Supreme Court precedent.

2. No Conflict Exists Between the Circuits.

Petitioner contends that the Eighth Circuit decision

conflicts with the Ninth Circuit decision in Sanders v.

10

Robinson, 864 F.2d 630 (9th Cir. 1988). Although the

Sanders court found that the tribal court had jurisdiction

over a non-Indian defendant, the Sanders decision is dis

tinguishable from the present case and does not present a

conflict between circuits. Sanders involved a divorce and

custody proceeding in which the children were members

of the tribe and had resided upon the reservation during

the marriage. Id. at 632. The Sanders decision was consis

tent with Montana; the tribal court had jurisdiction

because the welfare of the tribe as a whole was affected

by the divorce because of the status of the children as

tribal members. See Mississippi Band of Choctaw Indians v.

Holyfield, 57 U.S.L.W. 4409, 4414 (U‘S. April 3, 1989)

(tribal court had jurisdiction over adoption of Indian

children because of impact on Indian children and tribe).

Sanders is also distinguishable because the Ninth Cir-

cuit did not decide whether the tribal court jurisdiction

was exclusive. 864 F.2d at 633. The Sanders court relied

upon the tribal code which gave the Tribal Council power

to regulate domestic relations of tribal members and of

non-members married into the tribe. Id. The conclusions

reached by the Sanders court give no indication that the

Ninth Circuit would decide the Parisien/Twin City dis-

pute any differently than the Eighth Circuit. The dispute

does not involve custody matters which may have a

direct effect on the tribe. Therefore, there is no conflict in

the circuit courts which this Court needs to resolve.

11

B. THE EIGHTH CIRCUIT PROPERLY

AFFIRMED THE DISTRICT COURT'S DE-

TERMINATION THAT THE TRIBAL COURT

DID NOT HAVE SUBJECT MATTER

JURISDICTION.

1. A Federal District Court Has the Authority

to Decide Whether a Tribal Court Has

Asserted Jurisdiction Beyond Lawful

Limits.

Petitioners contend that the district court of North

Dakota was bound by the tribal appellate court’s declara-

tion that the tribal court had subject matter jurisdiction of

this matter. Such a position is inconsistent with the rul-

ings in National Farmers Union and lowa Mutual. Both

cases held that although exhaustion of tribal remedies

was required, a federal court may determine whether the

tribal court lacked jurisdiction. National Farmers Union,

471 U.S. at 845; lowa Mutual, 480 U.S. at 619. The district

court in this matter did what it was permitted to do; it

decided that the tribal court exceeded its jurisdictional

boundaries when it asserted jurisdiction over the suit

between Parisien and Twin City.

The Eighth Circuit properly affirmed the district

court’s issuance of the injunction in this matter because

the tribal court had no basis for asserting jurisdiction. In

concluding that the tribal court had jurisdiction, the tribal

appellate court did not analyze any specific statute,

treaty, or local Turtle Mountain history. Instead, the tribal

appellate court interpreted federal common law. (A-42).

Because the tribal appellate court did not interpret tribal

law and instead merely interpreted federal common law,

the tribal appellate court’s decision was not entitled to

any special deference.

12

_

Petitioner suggests that the tribal appellate court

decision is as binding as the highest state court’s inter-

pretation of state law. However, in this case the tribal

court interpreted federal, rather than tribal, law. In those

instances when a state court interprets federal law, the

federal court need not defer to the state court’s inter-

pretation. See Townsend v. Sain, 372 U.S. 293, 318 (1963).

Because the tribal court decided that federal common law

permitted the tribal court to assert jurisdiction in this

matter, the federal district court and the Eighth Circuit

Court of Appeals properly determined that federal law

did not permit such assertion of jurisdiction.

The Eighth Circuit ruling does not conflict with the

Ninth Circuit’s decision in Sanders v. Robinson. It is true

that in Sanders the Ninth Circuit noted that a tribal

court’s interpretation of tribal law was binding on the

court. 864 F.2d at 633. The Ninth Circuit went on to note,

however, that “a federal court must still, under § 1331

decide whether a tribal court has asserted its jurisdiction

beyond lawful limits.” Id. Thus, both the Eighth Circuit

and the Ninth Circuit recognize that a district court has

the authority to determine whether a tribal court has

exceeded its jurisdictional limits.

2. The Tribal Code Did Not Permit the Asser-

tion of Jurisdiction.

The tribal code in effect at the time Parisien com-

menced his suit provided that the tribal court shall have

civil jurisdiction over non-Indians if the non-Indian sub-

mits himself to the court’s jurisdiction. Turtle Mountain

Tribal Code § 2.0102(1) (1976). The tribal appellate court

acknowledged that Twin City did not expressly consent

13

to tribal court jurisdiction. The district court issued its

injunction in this matter because Twin City did not sub-

mit to the jurisdiction of the tribal court. (A-25). Thus,

both the tribal appellate court and the district court

agreed that Twin City did not expressly submit to the

jurisdiction of the tribal court.

Instead, the tribal appellate court found that Twin

City implicitly submitted to the jurisdiction of the tribal

court. The tribal appellate court based its decision upon

an analysis of federal common law. As noted above, the

tribal appellate court’s interpretation of Montana and

other Supreme Court cases was in error and the Eighth

Circuit properly affirmed the determination that the

tribal court had no jurisdiction.

In an apparent recognition that the tribal code did

not permit the assertion of jurisdiction over a defendant

such as Twin City, the Turtle Mountain Band of Chippewa

Indians revised the jurisdictional statute one month after

the district court’s decision. The petitioner contends that

the amended code applies and that Twin City was subject

to jurisdiction pursuant to the amended code. Although a

court is to apply the law in effect at the time a court

renders a decision, this rule is changed if manifest injus-

tice results. Bradley v. School Board of Richmond, 416 U.S.

696, 711 (1974). To determine whether it is unjust to apply

a law in effect at the time of an appellate decision, a court

must analyze “(a) the nature and identity of the parties,

(b) the nature of their rights, and (c) the nature of the

impact of the change in law upon those rights.” Id. at 717.

When a change effects a substantive right, it should

not be presumed to operate retroactively. Bennett v. New

14

Jersey, 470 U.S. 632, 6. 38 (1985): Hasse v. American Photo-

graph Corp., 299 F.2d 666, 668 (10th Cir. 1962); Rogers v.

Firestone Tire and Rubber Co., 599 F.Supp. 676, 677 (S.D.

Fla. 1984). For that reason, a tribe’s attempt to amend a

jurisdictional statute in an attempt to cure a jurisdictional

defect cannot have retroactive ee R. J. Williams

Co. v. Fort Belknap Housing A \uthori 509 F.Supp. 939, 938

n.2 (D. Mont. 1981).

It would be manifestly unjust to apply the 1987 juris-

dictional statute retroactively to Parisien’s claim against

Twin City. At the time Twin City entered into the sub-

contract with Parisien, the tribal court cculd assert juris-

diction over a non-Indian only if the non-Indian

submitted to the jurisdiction of the tribal court. Undoubt-

edly, those in business consider jurisdictional questions

when entering into commercial transactions. See Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 482 (1985) (choice of

kai provisions in contract considered for jurisdiction).

Because it would be unjust to apply the amendment

retroactively, the original tribal code provision should be

the only jurisdictional basis considered.

Finally, even if the amended statute is applied the

Eighth Circuit’s decision should not be modified. The

tribe’s attempt to assert jurisdiction is impermissible in

light of Montana. Therefore, the Eighth Circuit’s affir-

mance of the district court’s decision was proper and

need not be further reviewed by this Court.

15

CONCLUSION

The petition for a writ of certiorari should be denied.

Twin City exhausted its tribal court remedies before it

sought the protection of the district court. The district

court properly issued an injunction because the tribal

court attempted to assert jurisdiction beyond its lawful

limits. The Eighth Circuit Court of Appeals’ affirmance of

the district court’s decision is consistent with prior

Supreme Court opinions and is not in conflict with any

other circuit decision.

Respectfully submitted,

PAUL F. RICHARD

Counsel of Record

RONALD H. McLEAN

MAvUREEN HOLMAN

SERKLAND, LUNDBERG, ERICKSON,

Marci, & McLean, Ltp.

10 Roberts Street

P.O. Box 6017

Fargo, ND 58108-6017

(701) 232-8957

Attorneys for Respondents