Petition — Graves v. White Mountain Apache Tribe

Supreme Court, U. S. ~

FILED

JAN 30 1978

IN THE

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1977

No ‘7-107

JAMES D. GRAVES and ELEANOR GRAVES,

Petitioners,

Vv.

WHITE MOUNTAIN APACHE TRIBE, dba FORT

APACHE TIMBER COMPANY, CONTINENTAL

INSURANCE CO., and HAL BUTLER and

PEGGY BUTLER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

ARIZONA COURT OF APPEALS, DIVISION ONE

POWELL B. GILLENWATER, P.C.

By Powell B. Gillenwater, Jr.

3003 North Central Avenue

Suite 2304

Phoenix, Arizona 85012

Phone: (602) 264-7914

Attorneys for Petitioners

IN THE

Supreme Court of the United States

October Term, 1977

No.

JAMES D. GRAVES and ELEANOR GRAVES,

Petitioners,

V.

WHITE MOUNTAIN APACHE TRIBE, dba FORT

APACHE TIMBER COMPANY, CONTINENTAL

INSURANCE CO., and HAL BUTLER and

PEGGY BUTLER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

ARIZONA COURT OF APPEALS, DIVISION ONE

~~

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. _..................:00008 wer ae li

SR Es arsseisnticssthicivectbabelsebeletl een 1

JURE i sescecepeiteery ee SS 2

QUESTIONS PRESENTED _ ......ccccscccsocsscssseccvceesseeees 2

CONSTITUTIONAL PROVISIONS INVOLVED ..... 2

STATEMENT OF THE CASE _ .u00........cscsscssesosseeseceees 3

REASONS FOR GRANTING THE WRIT. ................. 7

CANOE | sckcusstbisnteslestdilielbinibciectibilticbackeiesttis 11

APPENDICES:

APP.A_ Arizona Court of Appeals Opinion ......... A-1

APP.B_ Arizona Court of Appeals Order ............. A-5

APP.C Petitioners’ Petition for Rehearing ......... A-6

APP.D Order of the Arizona Court of Appeals

Denying Petitioners’ Petition for

ARE RANCH A-9

APP.E Petitioners’ Petition for Review by the

Arizona Supreme Court ...........cccc0ecse00e. A-10

APP.F Order of the Arizona Supreme Court

Denying Petitioners’ Petition for

a NE SEL Po A-11

APP.G Order of the Superior Court Granting

Respondents’ Motion to Dismiss _........... A-12

li

TABLE OF AUTHORITIES

1. Cases: Page

Adams v. Murphy,

BGS F. SOC GG, 19GB) nccecccccicccccstinteleabetinns 7,8

Beach v. City of Springfield,

32 Ill. App. 2d 256, 177 N.E.2d 435 (1961) ......... 6

Collins v. Memorial Hospital of Sheridan County,

521 P.2d 1329 (Wy. 1974) .....c.cccccccccsccecesceeceesees 6

Haile v. Saunooke,

246 F.2d 293 (4th Cir. 1957) .000.....cccccsscssssccesceeeees 7

Morgan v. Colorado River Indian Tribe,

103 Ariz. 425, 423 P.2d 421 (1968) oo. eeeeccceeeee. 5

Puyallup Tribe v. Washington Game Department,

—— US. —.. $3 L. Bd. 28 G67 CUGTT) oo. nccceccccecee 6,7,10

Thebo v. Choctaw Tribe,

6 F. SIS GG. OO) i... 7

Turner v. United States and Creek Nations of Indians,

ah Rh ete och) «se 7

United States v. United States Fidelity & Guaranty Co.

FOP OB. FOCI crericsicsnesi eee 5,7

White Mountain Apache Indian Tribe v. Shelley,

107 Ariz. 4, 480 P.2d 654 (1971) oooeececcccsesseeeeees 5

Williams v. Lee,

FOOD OE. TET CHD cruvvisenonsinepeiieieaaanie 5

Worcester v, Georgia,

9E-O.B. GS TUG.) FES COO ED | cnccsinsvnsstnsnsinnaliaiamaain: 7,8,9

II. Constitutional Provisions and Statutes:

Apache Tribe Const., Art. 5, $ 10 ......cccccccccococosceseseseee 9

U.S. Goumt., Ast. 6 Gee. OB enieeciee 2

Indian Civil Rights Act, 25 U.S.C.A. § 1301 et ao

Wheeler-Howard Act, 48 Stat. 984, as amended

GP TUNE, SP acevissstiiunsinmsdaieniaame 8,9

ee —

lO

TABLE OF AUTHORITIES

Ill. Secondary Sources:

A eae

Indian Adjustment and the History of Indian Affairs,

Be Bee, Bs PUD, SEU CRP OED © clixahcccccscccerecssccenecseeses

Indian Rights Under the Cwil Rights Act of 1968,

OO FREE. Be TAOU. GET CII) cscececrecccccnsvccssececsccseese

Problems and Prospects in Developing Indian

Communities, 10 Ariz. L. Rev. 649 (1968) ...... ed

Sovereign Immunity for Tribal Businesses,

a . , REe § oe

IN THE

Supreme Court of the United States

October Term, 1977

No.

JAMES D. GRAVES and ELEANOR GRAVES,

Petitioners,

Vv

WHITE MOUNTAIN APACHE TRIBE, dba FORT

APACHE TIMBER COMPANY, CONTINENTAL

INSURANCE CO., and HAL BUTLER and

PEGGY BUTLER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

ARIZONA COURT OF APPEALS, DIVISION ONE

Undersigned counsel, on behalf of the petitioners, peti-

tions for a Writ of Certiorari to review the judgment of the

Arizona Court of Appeals in this case.

OPINIONS BELOW

The opinion of the Arizona Court of Appeals is reported

at ___—s Ariz. App. __, 570 P.2d 803 (1977) and is printed

in the Appendix. (App. A) The Order of the Superior

Court, Maricopa County, granting respondents’ Motion to

Dismiss is not officially reported. (App. G)

JURISDICTION

The Order of the Arizona Court of Appeals (App. B) was

entered on September 20, 1977. Petitioners filed a Petition

for Rehearing on October 4, 1977. (App. C) On October 21,

1977, the court of appeals entered an order denying peti-

tioner’s Petition for Rehearing. (App. D) A timely Petition

for Review by the Arizona Supreme Court was made (App.

E) and denied on November 1, 1977. (App. F) The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1257 (3).

QUESTIONS PRESENTED

1. Does the doctrine of tribal immunity bar plaintiff’s

right to recover for personal injuries caused by the

negligent acts of the White Mountain Apache Tribe?

2. Does the doctrine of tribal immunity extend to the

Fort Apache Timber Company (hereinafter FATCO),

a tribal enterprise of the White Mountain Apache Tribe?

3. Does the doctrine of tribal immunity bar plaintiff’s

right to recover as against Hal and Peggy Butler in-

dividually for personal injuries caused by their negli-

gent acts as agents for the White Mountain Apache

Tribe?

4. Have the respondents waived tribal immunity to the

extent that they acquired liability insurance?

CONSTITUTIONAL PROVISIONS INVOLVED

The relevant Constitutional provision is as follows:

U.S. Const., Art. 1, Sec. 8, Cl. 3: To regulate commerce

with foreign nations and among the several states and

with the Indian tribes.

STATEMENT OF THE CASE

This suit started as a personal injury action arising out of

an accident which occurred on the Fort Apache Indian Res-

ervation. (App. A) Petitioner Darrel Graves suffered extensive

personal injuries while working at the Fort Apache Timber

Company (FATCO) sawmill at Cibeque, Arizona on October

6, 1971. FATCO is a tribal enterprise of the White Mountain

Apache Tribe. Mr. Graves received severe injuries by coming

into contact with an electric line while loading wood chips.

Suit was initially filed on November 27, 1972 in the

United States District Court for the District of Arizona.

Joined as defendants in the suit were Western Pine Indus-

tries, Navopache Electric Cooperative, Inc., and the White

Mountain Apache Tribe d/b/a FATCO. Judge William P.

Copple of the United States District Court for the District

of Arizona raised the issue of the court’s jurisdiction. On De-’

cember 4, 1972, the court entered a memorandum and order

dismissing the suit without prejudice.

Petitioners refiled their action in the United States District

Court for the District of Arizona adding Continental Insur-

ance Company and Hal Butler and Peggy Butler to the list

of defendants. The jurisdictional facts alleged a substantial

federal question. Judge Copple ruled that the court had

jurisdiction but granted defendants’ Motion to Dismiss on

the grounds that the Tribe was immune from suit under the

doctrine of tribal immunity.

The case was appealed to the United States Court of

Appeals for the Ninth Circuit. Defendants filed a Motion to

Dismiss the Appeal on the grounds that the district court did

not have jurisdiction of the subject matter. On or about

November 14, 1973, the United States Court of Appeals

for the Ninth Circuit granted defendants’ motion.

On June 4, 1974, petitioners filed suit against ali the

above-mentioned defendants in the Superior Court of Ari-

zona, Maricopa County. The Complaint alleged that the in-

juries sustained by Mr. Graves were due to the negligence

of the defendants, except Continental Insurance Company.

Defendant Hal Butler who was an agent of FATCO at the

time of the accident acting in the scope of his duties and

who was allegedly responsible for the negligent acts of

FATCO, was sued on behalf of the community composed

of himself and his wife Peggy. Continental Insurance was

joined because it was a liability insurance carrier who agreed

to provide FATCO with liability insurance for its negligence

in the amount of $250,000.

Respondents White Mountain Apache Tribe of the Fort

Apache Indian Reservation dba FATCO, Continental Insur-

ance Company and Hal and Peggy Butler, filed a Motion to

Dismiss on July 3, 1974. They contended that suit against

them was barred by the federal doctrine of tribal immunity.

Petitioner’s Response to defendants’ Motion to Dismiss

claimed that the doctrine of tribal immunity deserved re-

consideration in light of economic realities and that in any

event, the defendants had waived immunity to the extent

that they had acquired liability insurance. The Superior

Court of Arizona, Maricopa County, Honorable Judge Roger

Strand presiding granted defendants’ Motion on February

20, 1975. (App. G) i

Plaintiff appealed the granting of the Motion to Dismiss.

The Arizona Court of Appeals affirmed, _ Ariz. App. __,

570 P.2d 803 (1977). The Court of Appeals concluded that

the tribe and its operation of FATCO were immune from

suit citing White Mountain Apache Indian Tribe v. Shelley,

107 Ariz. 4, 480 P.2d 654 (1971) and Morgan v. Colorado

River Indian Tribe, 103 Ariz. 425, 423 P.2d 421 (1968).

(App. A) Both Shelley and Morgan were based on the feder-

al doctrine of tribal immunity. That doctrine holds that an

Indian tribe is a dependent sovereign not subject to a state

court’s jurisdiction absent tribal consent or the consent of

Congress. See, e.g., Williams v. Lee, 358 U.S. 217 (1959);

United States v. United States Fidelity & Guaranty Co.,

309 U.S. 506 (1940).

As to Hal Butler the court held, again citing Morgan,

that tribal immunity extended to his actions on behalf of

the tribe if within the scope of his duties as an agent. (App.

A)

Petitioners reemphasized in the Court of Appeals their

two-pronged argument. First of all, they urged that the

doctrine of tribal immunity should be reconsidered in the

light of economic realities and the desire to assimilate the

tribes into the mainstream of the Arizona economy. (App.

A) Secondly, petitioners contended that even if tribal im-

munity applied to bar their action, respondents had waived

this immunity to the extent that they acquired liability in-

surance. (App. A)

In regard to petitioners’ argument that the court should

reconsider the doctrine of tribal immunity in the light of

economic realities, the court of appeais concluded that “this

is a matter only Congress and the tribe could resolve.” 570

P.2d at 805 (App. A)

As to petitioners’ argument that the purchase of liability

insurance by the tribe constituted a waiver of tribal immun-

ity, the Court of Appeals recognized that there were cases

which have held that purchase of liability insurance by a

municipality constitutes a waiver of municipal sovereign

immunity. (App. A) See, e.g., Beach v. City of Springfield,

32 Ill. App. 2d 256, 177 N.E.2d 435 (1961); Collins v.

Memorial Hospital of Sheridan County, 521 P.2d 1329

(Wyo. 1974). Nevertheless, the court was unwilling to apply

the rationale of these cases to the doctrine of tribal im-

munity. They reasoned as follows:

Congress had not waived the immunity in this case nor

are we able to do so in the face of Art. 1, § 8, Clause

3, of the United States Constitution and the authorities

interpreting this clause beginning with Worcester v.

Georgia, 31 U.S. (6 Pet.) 515 (1832), which would no:

permit this Court to do so.

570 P.2d at 805.

Petitioners filed a Petition for Rehearing on October 4,

1977 (App. C) asking the Court of Appeals to reconsider

its opinion in light of this Court’s decision in Puyallup Tribe

v. Washington Game Department, _ U.S. _, 53 L. Ed.

2d 667 (1977). Petitioners argued that Puyallup III indicates

that the continuing validity of the tribal immunity doctrine

is in doubt and that, at the very least, the doctrine allews a

state to obtain jurisdiction over individual defendants despite

tribal immunity. Thus, it was argued that the dismissal of

the defendants Continental Insurance and Hal Butler was

improvident.

Petitioners’ Motion for Rehearing was considered and

denied without an opinion being expressed on October 20,

1977. (App. D)

Finally, petitioners sought review in the Arizona Supreme

Court. (App. E) Their Petition for Review was denied on

November 1, 1977. (App. F)

REASONS FOR GRANTING THE PETITION

Certiorari should be granted in this case because the de-

cision poses an important and substantial federal question.

The decision of the Arizona Court of Appeals in this case

illustrates the traditional approach that courts taken when

asked to subject indian tribes to civil suits in state or fed-

eral courts. See United States v. United States Fidelity &

Guaranty Co., 309 U.S. 506 (1940); Turner v. United States

and Creek Nations of Indians, 248 U.S. 354 (1919); Haile

v. Saunooke, 246 F.2d 293 (4th Cir. 1957); Adams v.

Murphy, 165 F. 304 (8th Cir. 1908); Thebo v. Ghoctaw

Tribe, 66 F.2d 372 (8th Cir. 1895).

The traditional view that indian tribes are immure from

suit absent Congressional authorization, has come under

considerable attack and members of this Court have ex-

pressed doubt as to its continuing vitality. Chief Justice

Blackmun in his concurring opinion in Puyallup Tribe v.

Washington Game Department, __ U.S. __, 53 L. Ed.

2d 667 wrote:

I join the Court’s opinion. I entertain doubts, how-

ever, about the continuing vitality in this day of the

doctrine of tribal immunity as it was enunciated in

United States v. United States Fidelity & Guaranty

Co., 309 U.S. 506, 84 L.Ed. 894, 60 S. Ct. 653

(1940). I am of the view that that doctrine may well

merit re-examination in an appropriate case.

__US.__, 53 L. Ed. 2d at 678.

The origin of tribal immunity as a recognized legal con-

cept is found in Worcester v. Georgia, 31 U.S. (6 Pet.) 515

(1832) where the Court stated:

The Indian nations had always been considered an dis-

tinct, independent political communities, retaining their

original natural rights, as the undisputed possessors of

the soil, from time immemorial, with the single excep-

tion of that imposed by irresistible power. . . .

31 U.S. (6 Pet.) at 559.

In Adams v. Murphy, 165 F. 304 (8th Cir. 1908) the court

stated the true rationale for applying the doctrine of tribal

immunity to Indian nations as follows:

Upon consideration of public policy, such Indian

Tribes are exempt from civil suit. That has been the

settled doctrine of the government from the begin-

ning. If any other course was adopted, the tribes would

soon be overwhelmed with civil litigation and judg-

ments.

165 F. at 308.

The justification for protecting the indian tribes through

the doctrine of tribal immunity is no longer present. The

status of the tribes is different than it was 100 years ago.

Their relationship with the federal government has been a

changing one and the trend has been towards decreased

federal control and increased local control of Indians. This

is evidenced by the Wheeler-Howard Act, 48 Stat. 984, as

amended, 49 Stat. 378, enacted in 1934 for the purpose of

promoting local control of economic development and local

self-government among Indians. See Kelly, Indian Adjust-

ment and the History of Indian Affairs, 10 Ariz. L. Rev. at

559 (1968); and the Indian Civil Rights Act, 25 U.S.C.A.

§ 1301, et seq., enacted in 1968, whereby Indians were ex-

tended various constitutional protections and the path was

opened for state assumption of jurisdiction over Indians

by states willing to do so. See Reiblich, Indian Rights Un-

der the Cwil Rights Act of 1968, 10 Ariz. L. Rev. 617

(1968).

As a result, the policy toward Indian tribes has evolved

from one of protection of a weak and helpless subservant,

to one of encouragement of economic development. This

in turn, promotes the interrelationship of the tribes and the

communities surrounding them. Congress has followed a

policy calculated to make all indians full fledged partici-

pants in American society. See, Sovereign Immunity for

Tribal Businesses, 13 Ariz. L. Rev. 523 at 527 (1971); and

Federal Indian Law (1958) pp. 491-492.

The White Mountain Apache Tribe was never recognized

by executive order defining and providing for the Fort

Apache Indian Reservation. The Tribe is now organized un-

der § 16 of the Indian Reorganization (Wheeler-Howard)

Act, 48 Stat. 984, as amended, 49 Stat. 378. The Apache

Tribe’s Constitution, Article 5, § 1, authorized it to set up

subordinate economic organizations of which FATCO is

one of many such organizations. For a discussion of the re-

lationship of FATCO to the Apache Tribe see Sovereign Im-

munity for Tribal Businesses, 13 Ariz. L. Rev. 523, 525, fn.

11-13 (1971).

The tribes are not the same entities which the Court dealt

with in Worcester v. Georgia, supra. The tribes are shedding

their ties with the Federal Government, assuming more re-

sponsibilities and forming more relationships with the states

in which they are located. They are no longer weak depen-

dents whose existence is being threatened on every side by

non-Indians. The Apache Tribe is a sleeping giant of econ-

omical development which deals with the non-Indian com-

munity, not as a weak victim of non-Indian businesses but

as a partner with the off reservation community. See Bennett,

Problems and Prospects in Developing Indian Communities,

10 Ariz. L. Rev. 649 (1968).

10

If applied today, the doctrine of tribal immunity would

protect Indian tribes from evils which do not exist. Because

of the doctrine, third parties are not protected when deal-

ing with the tribes. Consequently, integration of the tribes

into the mainstream of the American economy is slowed by

the reluctance of outsiders to deal with them. The time is

ripe for this Court to recognize this and put some limita-

tion on the exercise of that doctrine as a defense to suits

against the tribes and their business enterprises.

Even if the doctrine of tribal immunity is to retain its

vitality, important federal questions as to the extent of that

doctrine remain: Can tribal businesses and individuals assert

tribal immunity to bar claims against them? In its latest

pronouncement, this Court in Puyallup Tribe v. Washington

Game Dept., supra, at 674 indicated that the states might

be able to assert jurisdiction over individuals despite their

assertions of tribal immunity when it stated:

On the other hand, the successful assertion of tribal

sovereign immunity in this case does not impair the

authority of the state court to adjudicate the rights of

the individual defendants over whom it properly ob-

tained jurisdiction.

Finally, this case raises an important federal question as

to under what circumstances the doctrine of tribal immun-

ity can be waived. In Puyallup Tribe v. Washington Game

Dept., supra, at 674 this Court stated:

Absent an effective waiver or consent, it is settled that

a state court may not exercise jurisdiction over a recog-

nized Indian tribe.

As to what actions by an Indian tribe constitute an effec-

tive waiver of the doctrine of tribal immunity, there is a

dearth of authority. This case affords the Court an appro-

<=

war

11

tunity to explore and define that area. Moreover, waiver

of tribal immunity by the procurement of liability insur-

ance is an equitable solution to the problem in this case.

CONCLUSION

For foregoing reasons, it is respectfully submitted that

this Court should grant the Petition for a Writ of Certiorari

to review the decision of the Arizona Court of Appeals.

Respectfully submitted,

POWELL B. GILLENWATER, P.C.

By Powell B. Gillenwater, Jr.

Attorneys for Petitioners

MEYER & VUCICHEVICH, P.C.

By Henry G. Hester

P. Richard Meyer

Attorneys for Petitioners

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

| APPENDIX A Arizona Court of Appeals Opinion

APPENDIX B Arizona Court of Appeals Order

APPENDIX C Petitioners’ Petition for Rehearing

APPENDIX D Order of the Arizona Court of Ap-

peals Denying Petitioners’ Petition

for Rehearing

APPENDIX E Petitioners’ Petition for Review by

the Arizona Supreme Court

APPENDIX F Order of the Arizona Supreme Court

Denying Petitioners’ Petition for

Review

APPENDIX G Order of the Superior Court Grant-

ing Respondents’ Motion to Dismiss

APPENDIX A

(Title of Action)

OPINION

DONOFRIO, Judge

This is an appeal by the plaintiffs below from the trial

court’s order granting a motion to dismiss their complaint

with prejudice. The complaint was filed by the plaintiffs

against The White Mountain Apache Tribe of Fort Apache

Indian Reservation, an Indian Nation d/b/a Fort Apache

Timber Company, Continental Insurance Company, a New

Yrok [sic] corporation and Hal Butler and his wife Peggy

Butler, all defendants below.

We are called upon to determine whether the trial court

erred in its ruling by applying the doctrine of tribal im-

munity to bar plaintiffs’ cause of action against the Indian

tribe, its agent and the insurance carrier.

The suit was filed as a personal injury action arising out

of an accident which occurred on the Indian reservation.

Plaintiff, James D. Graves, received his injuries by coming

into contact with an electric line while working at loading

wood chips at the Fort Apache Timber Company (FATCO)

sawmill at Cibeque, Arizona. The complaint alleged that

the injuries were by virtue of the negligence of FATCO

which is a tribal enterprise of the White Mountain Apache

Tribe; that Continental Insurance Company insured said

tribe against liability for the negligent acts of the tribe, its

agents and employees; and that Hal Butler on behalf of the

community composed of himself and wife, Peggy, was sued

as the agent of the tribe acting in the scope of his duties and

in furtherance thereof.

A-2

Appellant’s attack on the trial court’s ruling is two

pronged: First, they urge that this Court reconsider the doc-

trine of tribal immunity in the light of economic realities

and that this Court do away with or limit the application

of the doctrine in this case. They urge that by immunizing

the tribes from these types of lawsuits the courts are not

accomplishing the goals of furthering tribal interests. They

contend that because of the doctrine of immunity third

parties are not protected when dealing with the tribes. Con-

sequently, they say, integration of the tribe into the main-

stream of the Arizona economy is slowed down by the re-

luctance of outsiders to deal with the Indian tribes because

of this. Secondly, they contend that we should hold with

the rationale, adopted elsewhere, nam=ly, that a sovereign

waives the protection of sovereign immunity to the extent

that it acquires liability insurance. See, e.g., BEACH v. CITY

OF SPRINGFIELD, 32 Ill. App. 2d 256, 177 N.E.2d 436

(1961).

Appellees on the other hand defend the trial court’s rul-

ing on the basis that our Supreme Court has passed upon the

same issues and that the tribe and its operation of FATCO

are immune from suit citing WHITE MOUNTAIN APACHE

TRIBE v. SHELLEY, 107 Ariz. 4, 480 P.2d 654 (1971), and

MORGAN v. COLORADO RIVER INDIAN TRIBE, 103

Ariz. 425, 443 P.2d 421 (1968). We agree with appellees.

In SHELLEY governmental immunity was held to apply

to FATCO and to the General Manager (Butler)1/ for his

actions on behalf of the iribe if done within the scope of his

duties as such agent. In MORGAN such executive immunity

1/ it is to be noted that the name Hal Butler is the same in both

SHELLEY, supra, and the present case, and that he is sued as the

agent of the tribe in both cases.

A-3

was held to apply in tort cases. Appellants do not question

these holdings but are urging that since this case has the ad-

ditional fact situation of the tribe purchasing liability in-

surance covering negligence that we should rule differently.

In other words, that we should adopt the reasoning of cer-

tain cases involving the waiver of municipal sovereign im-

munity and hold that the tribe by taking out insurance has

waived its governmental immunity. We do not agree with

appellants.

With reference to the argument concerning the slowing

down of the integration of the tribe into the mainstream

of the Arizona economy, i.e., the clash between the policies

protecting Indians and those seeking to have them assimr

lated into the general population, this is a matter only Con-

gress and the tribe can resolve, and it is not for this Court to

make such 2 determination. When this Court attempted to

review former Supreme Court opinions in the light of chang-

ing problems in our society our Supreme Court in McKAY

v. INDUSTRIAL COMMISSION, 103 Ariz. 191, 438 P.2d

757 (1968), in no uncertain terms let us know:

“Whether prior decisions of the highest court in the

state are to be disaffirmed is 2 question for the court

which makes the decision. Any other rule would lead

to chaos in our judicial system.”

Finally, we turn to the remaining question as to whether

the existence of liability insurance purchased by the tribe

amounted to a waiver by the tribe of its governmenta! im- |

munity. We think not.

First, there is nothing in the record referring to any con-

gressional act, or to any act by the tribe, waiving the tribal

immunity. In MORGAN, supra, the Supreme Court held

that the Colorado River Indian Tribe, being a dependent

A-4

soveriegn-immune from suit, could not be subjected to the

jurisdiction of our Court without its consent or the cor

sent of Congress. The same rule would apply here. There

being nothing to show waiver or consent by the tribe, the

tribe would still enjoy the immunity.

Although there are cases, such as BEACH v. CITY OF

SPRINGFIELD, supra, and COLLINS v. MEMORIAL HOS-

PITAL OF SHERIDAN COUNTY, Wyo. 521 P.2d 1339

(1974), which have held that the purchase of liability in-

surance constitutes a waiver of municipal sovereign immun-

ity, at least up to the amount of coverage, we are unable

to see how we can apply the rationale of these cases to the

instant case which involves tribunal immunity, especially

since Congress has not waived the immunity in this case nor

are we able to do so in the face of Art. 1, §8, Clause 3 of

the United States Constitution and the authorities inter-

preting this clause beginning with the case of WORCESTER

v. GEORGIA, 31 U.S. (6Pet.) 515 (1832), which would not

permit this Court to do so.

Affirmed.

/s/ Francis ]. Donofrio

FRANCIS J. DONOFRIO,

CONCURRING: Judge

/s/ Gary K. Nelson /s/ Jack J. Ogg _

GARY K. NELSON JACK L. OGG, Judge

Presiding Judge, Depart-

ment A

A-5

APPENDIX B

(Title of Action)

ORDER

The above-entitled matter was duly submitted to the

Court. The Court has this day rendered its opinion.

IT IS ORDERED that the opinion be filed by the Clerk.

IT IS FURTHER ORDERED that a copy of this order to-

gether with a copy of the opinion be sent to each party ap-

pearing herein or to the attorney for such party and to The

Honorable Roger G. Strand, Judge.

DATED this 20th day of SEPTEMBER, 1977.

/s/ Gary K. Nelson

GARY K. NELSON

Presiding Judge, Department A

[Verification of mailing to counsel of record and Maricopa

County Superior Court Judge Strand.)

A-6

APPENDIX C

(Title of Action)

PETITION FOR REHEARING

I

The Appellant-Plaintiff, JAMES D. GRAVES by and

through his attorneys, requests that this Court grant a re-

hearing from its decision entered on September 20, 1977.

The Court should reverse this decision and hold that the

doctrine of tribal sovereign immunity does not apply or,

in the alternative, that tribal immunity does not apply to

any of the Defendants other than the tribe itself.

II

This Court held in its decision that the Defendants were

not liable for their negligent acts occurring on the Indian

reservation because the Defendants are protected by the

doctrine of tribunal immunity which has been applied by

the Arizona Supreme Court in Apache Indian Tribe _v.

Shelley, 107 Ariz. 4, 480, P.2d 654 (1971) and Morgan v.

Colorado River Indian Tribe, 103 Ariz. 425, 443 P.2d 421

(1968). In each of these cases, the Supreme Court applied

the tribal immunity doctrine as stated by the United States

Supreme Court in United States v. United States Fidelity &

Guaranty Co., 309 US 506, 60 S.Ct. 653, 84 L. Ed. 894

(1940).

The Supreme Court has, however, recently entered its

opinion in Puyallup Tribe, Inc. v. Washington, Us

53 L. Ed. 2d 667,97S.Ct.__ (1977) (Puyallup III) which

is relevant to the issues before this Court and which was de-

cided since the time that the briefs were filed in this matter.

The Supreme Court indicated that the tribal immunity

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doctrine and its continuing validity are in doubt. The Court

rejected the argument that the State of Washington could not

exercise jurisdiction over the Indians because of the tribal im-

munity doctrine enunciated in United States v. United States

Fidelity & Guaranty Co., supra. The Court further indicated

that a state, at the very least, has jurisdiction over individual

defendants despite tribal immunity. The Court held in that

case that the State of Washington could enforce its fish and

game laws by exercising its power over individual fish and

game laws by exercising its power over individual Indians

and their on-reservation activities.

In rejecting the claim that Washington could enforce its

laws on the reservation, the Court stated:

[W] hether or not the Tribe itself may be sued in a state

court without its consent or that of Congress, a suit

to enjoin violations of state law by individual tribal

members is permissable. The doctrine of sovereign im-

munity which was applied in United States v. United

States Fidelity & Guaranty Co. 309 US 506, 87 L. Ed.

894, 60 S. Ct. 653, does not immunize the individual

Members of the Tribe.

53 L. Ed. 2d at 673.

[T]he successful assertion of tribal sovereign immun-

ity in this case does not impair the authority of the

state court to adjudicate the rights of the individual

defendants over whom it properly obtained jurisdic-

tion. . . . Only the portions of the State Court Order

that involve relief against the Tribe itself must be va-

cated in order to honor the Tribe’s valid claim of im-

munity.

53 L. Ed. 2d at 674. (emphasis added).

It is interesting to note that in a separate concurring opin-

ion in Puyallup III, Justin Blackmun stated:

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I join the Court’s opinion, I entertain doubts, how-

ever, about the continuing vitality in this day of the

doctrine of tribal immunity as it was enunciated in

United States v. United States Fidelity & Guaranty Co.,

309 US 506, 84 L. Ed. 2d 894, 60 S. Ct. 653 (1940).

I am of the view that that doctrine may well merit re-

examination in an appropriate case.

53 L. Ed. 2d at 678.

This Court should apply the doctrine of tribal immunity

to prohibit the exercise of jurisdiction over the tribe because

the Supreme Court itself has indicated that the doctrine may

no longer exist. Applying the rationale of that case to the

facts before this Court, it becomes apparent that the Court’s

decision should be modified to the extent it affirms the dis-

missal of the Defendants CONTINENTAL INSURANCE and

HAL BUTLER himself was negligent and that CONTINEN-

TAL is also individually liable.

The Court should also grant a rehearing to the extent

that its decision failed to consider the question of whether

the insurance carrier, CONTINENTAL, is estopped from as-

serting that the tribe is immune in view of the fact that the

carrier accepted premiums to provide liability protection.

Even if the Court finds tribal immunity, CONTINENTAL

may be estopped from raising immunity as a defense, at

least to the extent of the liability insurance, CONTINEN-

TAL, was supposedly providing.

DATED this 4th day of October, 1977.

MEYER & VUCICHEVICH, P.C.

/s/ Henry G. Hester

Henry G. Hester

2503 First Federal Savings Bldg.

[Verification of delivery | 3003 North Central Avenue

and mailing] Phoenix, Arizona 85012

Attorney for Appellants

AY

APPENDIX D

(Title of Action)

ORDER

Appellants’ petition for rehearing has been considered

by Presiding Judge Nelson, and Judges Donofrio and Ogg.

IT IS ORDERED denying the petition for rehearing.

DATED this 20th day of October, 1977.

/s/ Gary K. Nelson

GARY K. NELSON

Presiding Judge, Department A

[Verification of mailing]

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APPENDIX E

(Title of Action)

PETITION FOR REVIEW PURSUANT TO

RULE 47(b), RULES OF THE COURT

OF APPEALS

17A, A.RS.

The Court of Appeals of the State of Arizona, Division

One, Department A, having on the 20th day of October,

1977, denied the Motion for Rehearing filed on behalf of

Appellants herein,

Comes now the Appellants herein, JAMES D. GRAVES

and ELEANOR GRAVES, and pursuant to Rule 47(b) of

the Rules of the Court of Appeals, 17A, A.R.S., hereby peti-

tions for review by the Supreme Court of the State of Ari-

zona.

Respectfully submitted this 21st day of Octobe:, 1977.

MEYER & VUCICHEVICH, P.C.

/s/ Henry G. Hester

Henry G. Hester

2503 First Federal Savings Bldg.

3003 North Central Avenue

Phoenix, Arizona 85012

Attorneys for Appellants

[Verification of mailing]

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APPENDIX F

(Title of Action)

The following action was taken by the Supreme Court of

the State of Arizona on November 1, 1977 in regard to the

above-entitled cause:

“ORDERED: Petition for Review = DENIED.”

Record returned to the Court of Appeals, Division One,

Phoenix, this 2nd day of November, 1977.

CLIFFORD H. WARD, Clerk

By /s/ Becky Sanchez

Deputy Clerk

[Verification of service]

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APPENDIX G

(Title of Action)

ORDER GRANTING

MOTION TO DISMISS

Defendants The White Mountain Apache Tribe of the Fort

Apache Indian Reservation, an Indian Nation, d/b/a Fort

Apache Timber Company, Continental Insurance Company,

a New York corporation, and Hal Butler and Peggy Butler

having come on for hearing on their motion to dismiss be-

fore this court on August 8, 1974; the court having read all

the memoranda of counsel with respect thereto and having

heard oral argument; the court having taken this matter un-

der advisement and having now entered its order granting

these defendants’ motion to dismiss plaintiff’s complaint

with prejudice; and the court having determined, and hereby

certifying, that, pursuant to Rule 54(b), Arizona Rules of

Civil Procedure, there is no just reason for delay and that

judgment should be entered forthwith against plaintiffs dis-

missing their claim with prejudice; a..d the court being fully

advised in the premises:

IT IS HEREBY ORDERED that the motion to dismiss

of defendants The White Mountain Apache Tribe of the

Fort Apache Indian Reservation, an Indian Nation, d/b/a

Fort Apache Timber Company, Continental Insurance Com-

pany, a New York corporation, and Hal Butler and Peggy

Butler be and the same is hereby granted and that plain-

tiffs’ complaint is dismissed with prejudice as to these de-

fendants and, pursuant to Rule 54b), Arizona Rules of

Civil Procedure, there is no just reason for delay and that

this order granting these defendants’ motion to dismiss and

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adjudging that plaintiffs’ complaint be dismissed with prej-

udice should forthwith be entered against plaintiffs dismiss-

ing their claim with prejudice.

DONE IN OPEN COURT this 19th day of Feburary, 1975.

/s/ Roger G. Strand

JUDGE