Amicus Brief — Fort Belknap Indian Community v. District Court of the Twelfth Judicial District

15422-1.77

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IN THE

Supreme Court of the United States

OctToBER TERM, 1976

No. 76-919

THe Fort BELKNAP INDIAN COMMUNITY OF THE ForT

BELKNAP INDIAN RESERVATION, MONTANA,

Petitioner,

Vv.

THe District CourRT OF THE TWELFTH JUDICIAL

DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE

CouUNTY OF BLAINE, ET AL.,

Respondents.

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

AND

BRIEF AMICUS CURIAE OF THE NATIONAL

CONGRESS OF AMERICAN INDIANS, INC.,

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

RicHarp ANTHONY BAENEN

Counsel for Amicus Curiae

1735 New York Avenue, N.W.

Washington, D.C. 20006

WILKINSON, CrAGUN & BARKER

R. ANTHONY RoGeErs

Of Counsel

Passes or Brrnow S. Apams Parting, Inc., Wasuinoton, D. C.

IN THE

Supreme Court of the United States

OctToBER TERM, 1976

No. 76-919

THE Fort BELKNAP INDIAN COMMUNITY OF THE FORT

BELKNAP INDIAN RESERVATION, MONTANA,

Petitioner,

Vv.

THE District Covrr or THE TWELFTH JUDICIAL

DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE

CouNTY OF BLAINE, ET AL.,

Respondents.

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

The National Congress of American Indians, Ine.,

respectfully moves this Court for leave to file the ae-

companying brief, as amicus curiae, in support of the

petition for writ of certiorari filed by the Fort Bel-

knap Indian Community.

In support cf this motion, your amicus has stated its

interest in this case in the accompunying brief. The

written cousent of the petitioner to presenting this

brief is filed simultaneously with it. The respondents

have not acted on a request for their consent.

CO ——————————

2

Your amicus believes that its views will assist the

Court in its consideration of the petition.

IN THE

Supreme Court of the United States

’ OcroBER TERM, 1976

Respectfully submitted,

RICHARD ANTHONY BAENEN | entiation,

Counsel for Amicus Curiae

1735 New York Avenue, N.W. *

Washington, D.C, 20006 Ho, 16-019

WILKINSON, Cracun & BARKER ———

R. ANTHONY RogGERs

Of Counsel Tue Fort BELKNAP INDIAN COMMUNITY OF THE Fort

BELKNAP INDIAN RESERVATION, MONTANA,

January, 1977 Petitioner,

v.

Tue District Court oF THE TWELFTH JUDICIAL

DisfRICT OF THE STATE OF MONTANA, IN AND FOR THE

CouUNTY OF BLAINE, ET AL.,

Respondents.

BRIEF AMICUS CURIAE OF THE

NATIONAL CONGRESS OF AMERICAN INDIANS,

INC., IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

. —_——_—

The National Congress of American Indians, Ine.

(NCAL), is one of the oldest and most representative

organizations for the promotion, preservation and pro-

tection of the interests of native Americans. A non-

profit association, formed in 1944 and incorporated in

1954 in Oklahoma, NCAI’s membership consists of

over 120 tribes, most which are organized pursuant to

2

the Indian Reorganization Act (IRA), 25 U.S.C. §§ 461

et seq., and some 1,500 individusl Indians. NCAT is

convineed that, unless the decision below is reversed,

IRA tribes will be subjected to endless civil suits for

damages or other relief that will surely drain tribal

treasuries and reduce to a nullity the federal policy of

tribal self-determination.

REASONS FOR GRANTING THE WRIT

The Supreme Court of Montana has created need-

less confusion and reached an erroneous result on an

important question of the state’s judicial power over

an Indian tribe.’ This time the question is not only one

of jurisdiction * but also one of tribal sovereign immu-

nity. Here the Court is faced with clear misreading

of the language and legislative history of §§ 16 and 17

of the Indian Reorganization Act, 25 U.S.C. §§ 476

and 477, that has led the lower courts to see a waiver of

1The court below has been reversed by this Court twice in

cases involving unauthorized state court authority over reserva-

tion Indians and tribes. Fisher v. District Court, 424 U.S. 382

(1976), and Kennerly v. District Court, 400 U.S. 423 (1971).

Both reversals came through this Court’s summary action on the

petitions for certiorari, without further briefing or argument. The

lower court has followed this Court’s mandate against such im-

proper state intrusion in Indian affairs on other occasions since

Kennerly. Security State Bank vy. Pierre, 162 Mont. 298, 511 P.2d

325 (1973); Blackwolf v. District Court, 158 Mont. 523, 493 P.2d

1293 (1972): and Crow Tribe v. Deernosc, 158 Mont. 25, 487 P.2d

1133 (1971). But in this case and Little Horn State Bank v.

Stops, 555 P.2d 211 (Mont. 1976), certiorari pending, No. 76-931

(U.S., filed Jan. 5, 1977), the lower court has again regressed.

* Petitioner tribe has never consented to, nor has the State of

Montana sought to assume, jurisdiction over the Fort Belknap

Reservation pursuant to 28 U.S.C. § 1360 or 25 U.S.C. § 1322(a).

See Kennerly v. District Court, supra note 1.

3

immunity where there is none.’ The misreading has

improperly melded the petitioner’s tribal governing

body, created pursuant to § 16 of the Act, with its tri-

‘bal corporation, organized pursuant to §17. The lower

courts have recognized only one tribal entity when

Congress clearly intended two.

_ The tribe has both a governmental organization and

a corporate organization. The goveruing body, re-

organized by § 16 of the IRA, has retained the sover-

eignty which resided in the aboriginal tribes that

now comprise the Fort Belknap Indian Community.

Such tribal sovereigns have always been clothed

with immunity from suit. United States v. United

States Fidelity & Guar. Co., 309 U.S. 506, 512 (1940),

and Turner v. United States, 248 U.S. 354, 358 (1919).

It is an immunity like that protecting from suit with-

out their consent both the United States, Monaco v.

Mississippi, 292 U.S. 313 (1934), and the several States,

Edelman v. Jordan, 415 U.S. 651 (1974). In the ease

of tribal immunity, any waiver must come from Con-

gress. United States v. United States Fidelity &:

Guar. Co., supra, and Turner v. United States,

supra. A tribe alone cannot consent. See Kennerly v.

District Court, 400 U.S. 423 (1971). The waiver must

be express, as must any congressional action affecting

the status of tribes with respect to state authority. See

McClanahan v. Arizona State Tax Comm’n, 411 U.S.

164, 171 (1973).

The misreading is implicit, even though the Montana Supreme

Court here did not express its reasons for denying the Fort

Belknap Community’s writ to reverse and set aside the district

court’s order to dismiss the case. 554 P.2d at 1115 (Appendix to

the Petition (App.) 1a).

4

In the IRA, Congress gave tribes an opportunity to

reorganize into two different entities, recognizing the

governing aspect of tribal authority over their lands

and people and the proprietary aspect of tribal owner-

ship of their lands and resources. Section 16 plainly

speaks to the governing organization and §17 plainly

addresses the proprietary corporation. Just as the

statute itself discriminates between the two concepts

in separate sections, the legislative history distin-

guishes the purposes of creating two entities. The

House Committee on Indian Affairs reported that the

bill leading to the Act granted

‘* .. Indians living under Federal tutelage the

freedom to organize for purposes of local self-

government and economic enterprise... .’’ H.R.

Rep. No. 1804, 73d Cong., 2d Sess. 1 (1934). (Em-

phasis added.)

Similarly the Senate Committee stated the dual organi-

zational purposes

‘*(3) To stabilize the tribal organization of In-

dian tribes by vesting such tribal organizations

with real, though limited, authority, and by pre-

seribing conditions which must be met by such

tribal organizations.

**(4) To permit Indian tribes to equip them-

selves with the devices of modern business organi-

zation, through forming themselves into business

corporations.’’ S. Rep. No. 1080, 73d Cong., 2d

Sess. 1 (1934).

The Solicitor of the Department of the Interior, the

primary administrative agency for all federally recog-

nized tribes, has twice held that the government and the

corporation of each [RA tribe are distinct bodies with

different powers and responsibilities. 65 I.D. 483, 484

(1958) and 61 I.D. 8 (1952).

Oe eT eS | Se a ee a ee ee

4)

Suit against an TRA tribal governing body is simply

not authorized by the IRA. Yet it is that statute upon

which the plaintiff below has exclusively relied in as-

serting a waiver of the Tribe’s immunity. Plaintiff

here sued the Tribe, not the tribal corporation. But the

Tribe is immune for lack of a congressional waiver,

and the tribal corporation, though it may be sued, * has

no authority over the tribal police officer involved here.

The facts of the case, involving allegations of excessive

force against the plaintiff by a tribal police officer in

the course of arrest and custody of the former for his

supposed violation of traffic laws, are obviously totally

within the governmental sphere and have no possible

connection with any corporate, business or economic

enterprise of the tribe.

Equally without question is the fact that, since en-

actment of the IRA, Congress, particularly in the past

few years, has continued to strengthen tribal govern-

ment through increased governmental and business

programs, such as the Indian Self-Determination and

Educational Assistance Act of 1975, 25 U.S.C. §§ 450

et seq., and the Indian Financing Act of 1974, 25 U.S.C.

§§ 1451 et seq.

*No express waiver of immunity can be found with respect to

either the tribal government or the tribal corporation in § 16 or § 17

of the Act, respectively. There is language in the petitioner’s cor-

porate charter purportediy authorizing the tribal corporation

‘*to sue and be sued’’. This charter language was approved by

the Secretary of the Interior and therefore reflects his decision

that waiver of immunity was authorized by Congress with respect

to the corporation. Whether or not Congress in the IRA has

authorized the corporation’s waiver has not been directly raised

in this petition, and resolution of that issue must await another

ease where, unlike here, the corporate powers and not the govern-

mental powers, are the subject of the suit.

6

Congress has not in any of those Acts expressly

waived the immunity that bars the present case.’ Fur-

thermore, it is implicit from the policies of those acts

that Congress would not have carelessly exposed tribal

government treasuries to the repetition of costly suits

for damages for acts of those sovereigns in their gov-

erning capacities.

CONCLUSION

For the foregoing reasons, your amicus prays that

the Court agree to review this case by granting the pe-

tition for writ of certiorari.

Respectfully submitted,

RicHarpD ANTHONY BAENEN

Counsel for Amicus Curiae

1735 New York Avenue, N.W.

Washington, D.C. 20006

WILKINSON, CraGuN & BARKER

R. ANTHONY RoGers

Of Counsel

J anuary; 1977

5 Whether or not a waiver of immunity may have been intended

by the Indian Civil Rights Act, 25 U.S.C. § 1301 et seq., is not ad-

‘dressed here for the failure of the plaintiff below to rely on its

provisions. In any event, the rights that Act created under federal

law would not be adjudicated in a state court.