Opposition Brief — National Farmers Union Insurance v. Crow Tribe of Indians

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FILED

2, OCT 26 984

No. 84-320 | ALEMANDER L. STEVAS

4 mes F |

In The

Supreme Court of the United States

October Term, 1984

fy.

NATIONAL FARMERS UNION INSURANCE

COMPANIES, et al.,

Petitioners,

Vv.

CROW TRIBE OF INDIANS, et al.,

Respondents.

o—

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Ninth Circuit

fy.

BRIEF FOR RESPONDENTS CROW TRIBE

OF INDIANS AND CROW TRIBAL

OFFICIALS IN OPPOSITION

Rosert S. PetcyGcer*

BarRBARA LAVENDER

Tuomas R. AcEVEDO

Frepericks & PELCYGER

1007 Pear! Street

Boulder, Colorado 80302

(303) 443-1683

Attorneys for the Crow Tribe & The

Crow Tribal Defendants

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED

1. Whether a complaint challenging the Crow Tribal

Court’s assertion of civil jurisdiction over a tort suit

brought by a tribal member based on an accident that took

place within the Crow Reservation, states a federal claim

for relief.

2. If federal courts do have such jurisdiction, wheth-

er exhaustion of the available Tribal Court remedies is

required before the suit can be entertained by the federal

courts.

3. Whether the Crow Tribal Court has jurisdiction

over a tort suit brought by a tribal member against a lo-

eal school district when the accident took place on fee

lands owned by the school district within the Crow Indian

Reservation, four of the nine school board members are

Indian, and more than 85% of the children attending the

school are enrolled members of the Crow Tribe.

TABLE OF CONTENTS

Page

Statement of the Case 0000 l

Summary of Argument 00000 ne 4

ANE MN . ‘ 4

NON 16

I anccesnsineeeereecst la

TABLE OF AUTHORITIES

CasEs: Pages

Cardin v. De La Cruz, 671 F.2d 363 (9th Cir. 1982),

cert. denied, 459 U.S. 967 (1982) 16

Clark v. Circus-Circus, 525 F.2d 1328 (9th Cir. 1975). 16

Confederated Salish & Kootenai Tribes, etc. v. Namen,

665 F.2d 951 (9th Cir. 1982) cert. denied, 459 U.S.

977 (1982) . 16

DeCoteau v. District County Court, 420 U.S. 425

(1975) ... | 11

Durfee v. Duke, 375 U.S. 106 (1963) 6

Expert Elec. Inc. v. Levine, 554 F.2d 1227 (2nd Cir.

1977), cert. denied, 434 U.S. 903 (1977) 10

Fisher v. District Court, 424 U.S. 382 (1976) .. ee

Graham v. Brotherhood of L.F.4&E., 338 U.S. 232

(1949) 13

Howlett v. Salish & Kootenai Tribes, 529 F.2d 233

(9th Cir. 1976) i)

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) 6, 8, 9

Janis v. Wilson, 521 F.2d 724 (8th Cir. 1975) —

Juidice v. Vail, 430 U.S. 327 (1972) 8

iil

TABLE OF AUTHORITIES—Continued

Pages

Kennerly v. District Court, 400 U.S. 423 (1971) _...... 7, 13

Knight v. Shoshone & _— Tribes, 670 F.2d 900

a na : a

Knox County v. Harshman, 133 U.S. 152 (1890) 10

McCurdy v. Steele, 506 F.2d 653 (10th Cir. 1975) ......10, 16

Means v. Wilson, 522 F.2d 833 (Sth Cir. 1975), cert.

denied, 424 U.S. 958 (1976) ... Sa es 10, 16

Merrion v. Jicarilla Tribe Pudd Apaches, 455 U.S. 130

(1982) . - eaiieeliii 13, 14

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) 11

Montana v. United States, 450 U.S. 544 (1981) 7, 14, 15

Moses H. Cone Memorial Hosp. v. Mercury Construc-

tion Corp., 460 U.S. 1 (1983) oc ceecnceresnennmemernnmn 13

N.L.R.B. v. Clark, 468 F.2d 459 (5th Cir. 1972) 0. 10

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

Ge aia eters 15

O’Neal v. Cheyenne River Siour Tribe, 482 F.2d 1140

(8th Cir. 1973) tas i BO

Santa Clara Pueblo v. Martins, 4 436 U.S. 49

(1977) ; ae 3, 6, 8, 9, 13

Singleton v. Wulff, 428 U.S. 106 (1976) oo 13

Stateside Machinery Co., Ltd. v. Alperin, 591 F.2d

234 (3d Cir. 1979) 10

Teamsters Pub. Emp. U. Loc. 594 v. City of West

Point, Neb., 338 F.Supp. 927 (D. Neb. 1972) 12

Three Affiliated Tribes v. Wold Engineering, — U.S.

—, 104 S.Ct. 2267 (1984) 14

Trainor v. Hernandez, 431 U.S. 434 (1977) 8

TABLE OF AUTHORITIES—Continued

Pages

United States v. Mazurie, 419 U.S. 544 (1975) 2 .. 13

Washington v. Confederated Tribes of the Colville

Indien Reservation, 447 U.S. 134 (1980) 0. 14, 15

Webb v. Webb, 451 U.S. 493 (1981) ... 8,9

Williams v. Lee, 358 U.S. 217 (1959) 9, 138, 14

Younger v. Harris, 401 U.S. 37 (1971) WW... po

CoNSTITUTION, STATUTES, AND REGULATIONS:

25 U.S.C. $§ 1301 et. seq. ———— ne OS

Rule 7, Crow Rules of Civil Procedure 10

Rule 17(d), Crow Rules of Civil Procedure ...... 10, 11

Rule 2(a), Crow Rules of Appellate Procedure 11

No. 84-320

In The

Supreme Court of the United States

October Term, 1984

NATIONAL FARMERS UNION INSURANCE

COMPANIES, et al.,

Petitioners,

CROW TRIBE OF INDIANS, et al.,

Respondenis.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Ninth Circuit

—~ '

BRIEF FOR RESPONDENTS CROW TRIBE

OF INDIANS AND CROW TRIBAL

OFFICIALS IN OPPOSITION

STATEMENT OF THE CASE

In May of 1982, Leroy Sage, a ten year old enrolled

member of the Crow Tribe, was struck by a motorcycle

on the grounds of the Lodge Grass Elementary School in

Lodge Grass, Montana. The land on which the school is

located is owned in fee by the Lodge Grass School District

and is within the exterior boundaries of the Crow Reser-

vation.

Leroy Sage subsequently filed suit in Crow Tribal

Court through his guardian, Flora Not Afraid, in Sep-

tember, 1982. The complaint alleged that Sage’s injuries

were caused by the negligent and tortious conduct of the

Petitioner Lodge Grass School District No. 27 (“the School

District”), specifically, the unsafe condition of the school

parking lots and inadequate supervision during school

hours.

Eighty-five percent of the students in the School Dis-

trict are Crow tribal members. ‘The Lodge Grass school!

board consists of nine members, of whom four are Crow

Tribal members. See Appendix A, Brief of Appellant

Crow Tribe of Indians, on appeal to the United States

Court of Appeals for the Ninth Cireuit.

The Chairman of the School District was served with

process. However, the School District did not answer or

otherwise appear in Tribal Court. Accordingly, on Oc-

tober 19, 1982, a default judgment was entered in Tribal

Court against the School District. The Tribal Court

mailed a copy of the default judgment to the Chairman

of the School Board on October 25, 1982. Although Crow

Tribal Court procedures permit parties against whom a

default judgment is taken to move to set aside such judg-

ments within 30 days, the School District took no action

in Tribal Court.

Instead, on November 2, 1982, the School District and

its insurer, the National Farmers Union Insurance Com-

panies (“National Farmers”), filed suit in the Federal

District Court for Montana. Named as Defendants were

the Crow Tribal Court, Eddie Roundface, Glen Birding-

ground and Ira Left Hand, who are Judges of the Crow

Tribal Court, and Donald Stewart, Sr., Chairman of the

Tribal Council (the “tribal defendants”). The complaint

challenged the validity of the Tribal Court judgment

against the School District and National Farmers, alleg-

ing that the Tribal Court lacked jurisdiction over the con-

troversy and that the constitutional rights of the Sehool

District and National Farmers had been violated by the

Tribal Court action.

On November 3, 1982, the Federal District Court is-

sued a temporary restraining order enjoining Sage from

executing the Tribal Court judgment. On December 29,

1982, the District Court permanently enjoined the de-

fendants from executing the tribal court judgment on the

grounds that the Tribal Court lacked jurisdiction over the

tort claim. Pet. App. 14a-27a.

On July 3, 1984, the Court of Appeals unanimously

reversed. Based on the reasoning of Santa Clara Pueblo

v. Martinez, 486 U.S. 49 (1977), as well as its own previous

decisions, the majority found that the Crow Tribal Court

was the proper forum for determining the extent of its

own jurisdiction. Pet. App. 7a. Consequently, the ma-

jority concluded that the complaint must be dismissed for

failure to state a claim for federal relief.

In a separate opinion, Judge Wright concurred in the

majority’s conclusion that the complaint must be dismissed,

stating that his “difference with the majority does not

stem from any fundamental conflict over the policies at

stake.” Pet. App. lla. Although Judge Wright dissented

from the holding that federal court review of tribal pro-

ceedings was precluded, he found such review to be appro-

priate cnly after exhaustion of tribal court remedies. Ex-

ns mei

haustion was found to be required by the doctrine of ecom-

ity and by “the federal policy of protecting and strength-

ening tribal institutions.” Pet. App. lla. Since the School

District had not even made an appearance in Tribal Court,

the available Tribal Court remedies had not been ex-

hausted and consequently the complaint should have been

dismissed. Neither the majority nor Judge Wright ad-

dressed the merits of the claim made by the Sckool Dis-

trict and National Farmers that the Crow Tribal Court

lacked jurisdiction over Sage’s tort suit.

On August 22, 1984, petitioner school district ap-

peared for the first time in the Crow Tribal Court, seek-

ing to enjoin the sale of certain property which had been

seized on August 1, 1984, pursuant to the default judg-

ment. The Schoo! District also moved to have the default

judgment set aside.

Following a hearing, the Tribal Court postponed the

sale of the seized property and set a hearing date of Sep-

tember 19, 1984 for further consideration of the School

District’s Motion To Set Aside Default. App. to Opp. Br.

la-7a. Further Tribal Court proceedings were contin-

ued following the August 23, 1984 and September 10, 1984

orders issued by Justice Rehnquist staying the Court of

Appeals’ mandate.

SUMMARY OF ARGUMENT

The decision of the Court of Appeals for the Ninth

Circuit is correct, is consistent with decisions of this Court

and does not confiict with any decisions of the other cir-

cuits. Review is unwarranted, especially at this time.

Granting review without requiring exhaustion of avail-

able tribal court remedies would unnecessarily impede the

orderly progress of the Tribal Court proceedings, which

provide ample opportunity for consideration of all of the

petitioners’ claims and contentions.

The Court of Appeals correctly ruled that the Crow

Tribal Court is the proper forum for determining the

scope of its jurisdiction, “at least in the first instance.”

Pet. App. 7a. The Court’s decision is consistent with im-

portant principles of comity and exhaustion and with the

firm federal policies supporting tribal authority over

reservation matters. The Crow Tribal Court provides

procedures for full and fair consideration of petitioners’

claims and for appeal to a higher court. These procedures

are similar to those available in a state court system and

afford comparable protections for petitioners’ rights. Cir-

cumvention of the Tribal Court’s authority by the federal

courts befcre the Tribal Court has had an opportunity

to rule on the questions raised by the parties to the Tribal

Court proceedings violates the same principles which pre-

clude premature federal court intervention in state court

proceedings. These policies and principles require that

Petitioners seek recourse in the Crow Tribal Court in ae-

cordance with the decision of the Ninth Cireuit Court of

Appeals.

ARGUMENT

A grant of certiorari in this case would be contrary to

two separate and fundamental principles of jurisprudence.

It is well establish: ’ -hat courts must have jurisdiction to

determine the scope of their own jurisdiction. Durfee v.

Duke, 375 U.S. 106 (1963). In addition, absent certain ex-

ceptional circumstances, federal courts must exercise re-

straint to avoid interfering with proceedings pending in

other courts. Huffman v. Pursue, Ltd., 420 U.S. 592

(1975). Both of these principles support the opinion of

the Court of Appeals for the Ninth Circuit.

1. The Court of Appeals was correct in ruling that

federal court review of tribal court actions is precluded

by this Court’s opinion in Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1977). Martinez involved the issue of a tribe’s

compliance with the Indian Civil Rights Act of 1968, 25

U.S.C. §§ 1301 et. seg (ICRA), which applies most of the

provisions of the Bill of Rights of the United States Con-

stitution to Indian tribes. Even where the most funda-

mental rights were involved however, this Court found in

Martinez that the Congressional intention to “protect tri-

bal sovereignty from undue interference” would be frus-

trated by federal court review of the action of the tribal

council. 436 U.S. at 63.

Significantly, this Court noted that tribal courts were

available both to Indians and non-Indians to insure pro-

tection of their “important personal and property inter-

ests.” 436 U.S. at 65. Those considerations are at least

equally applicable to this case and compel the same con-

clusion, that federal court review constitutes an undue in-

terference with the sovereignty of the Crow Tribe. In-

deed, considering that complaints alleging deprivations of

fundamental constitutional rights by tribal officials are not

cognizable in Federal Courts, it would be incongruous to

hold that those same Courts can entertain suits challeng-

ing the scope of tribal court jurisdiction.

This Court has earefully and consistently guarded the

erucial role of tribal courts in resolving civil disputes that

arise on Indian Reservations. Fisher v. District Court,

424 U.S. 382 (1976); Kennerly v. District Court, 400 U.S.

423 (1971); Williams v. Lee, 358 U.S. 217 (1959). In this

context, the application of the Martinez rationale in order

to protect tribal courts from collateral attack in the fed-

eral courts is especially warranted.

Petitioners’ references to Moviana v. United States,

450 U.S. 544 (1981), as evidence of a narrow interpreta-

tion of Martinez, are unavailing. Montana arguably may

have some bearing on the permissible scope of tribal court

jurisdiction. See imfra, at 15. It has no relevance to the

question of federal court jurisdiction, however, because

Montana was brought by the United States and the Crow

Tribe against the State of Montana, and was not a suit

challenging the exercise of jurisdiction by tribal courts or

tribal officials.

2. Assuming arguendo, that federal court review of

tribal court proceedings may be authorized under certain

circumstances, there remains the question of whether, as

Judge Wright concluded in his coneurrence, exhaustion of

available tribal court remedies is a necessary prerequisite

to federal court review. At this stage of the proceedings,

denial of certiorari is appropriate under either the Ninth

Cireuit majority opinion or the coneurrence, and would

produce the same result. In either event, the petitioners

would be required to avail themselves of their tribal reme-

does before proceeding in federal court. If petitioners

obtain a favorable ruling in the tribal court, they will not

have any need for federal review. If they are not satis-

fied with the results in the tribal court proceedings, they

could then reinitiate their suit in federal court. At this

point, where petitioners have made no effort even to seek

tribal remedies, it is premature for any federal court to

entertain their claims.

This Court has consistently recognized that federal

courts should, as a matter of comity, avoid interfering in

eases that are pending before the state courts. Webb v.

Webb, 451 U.S. 493 (1981); Trainor v. Hernandez, 431

U.S. 484 (1977); Huffman v. Pursue Ltd., 420 U.S. 592

(1975) ; Juidice v. Vail, 430 U.S. 327 (1972). This policy

applies in both civil and criminal contexts where important

state interests are involved, notwithstanding the existence

of important federal questions and interests. See, e.g.,

Huffman v. Pursue, Ltd, supra; Trainor v. Hernandez,

supra. As noted in Huffman v. Pursue, Ltd., supra, 420

U.S. at 604, federal restaint regarding pending state ad-

judieations is particularly warranted because

. . interference with a state judicial proceeding pre-

vents the State not only from effectuating its substan-

tive policies, but also from continuing to perform the

separate function of providing a forum competent

to vindicate any constitutional objections interposed

against those policies.

These principles and considerations equally require

federal courts to refrain from interfering with pending

procedures in tribal courts, to permit those courts to per-

form their vital function of peacefully resolving disputes

that arise on Indian reservations. In Santa Clara Pueblo

v. Martinez, supra, this Court exercised judicial restraint

in order to avoid interference with tribal proceedings, in

accordance with the policy of preserving the “right of

reservation Indians to govern themselves”. 436 U.S. at 59,

citing, Williams v. Lee, supra, 358 U.S. at 223 (1959). The

interest of Indian tribes in preserving the authority of

their tribal courts is a clear example of a sovereign in-

terest justifying application of the comity doctrine in the

civil context.’

The practical reasons for abstention, noted in Webb v.

Webb, supra, 451 U.S. at 500, and Huffman v. Pursue Ltd.,

supra, 420 U.S. at 604, apply equally to tribal court pro-

ceedings. Judicial efficiency will best be achieved by af-

fording tribal courts the opportunity to resolve the dis-

putes brought before them. Indeed, prior to Martinez,

when federal courts were reviewing complaints brought

against tribal officials under the Indian Civil Rights Act

of 1968, 25 U.S.C. §§ 1301 et. seq., the federal appellate

courts throughout the West imposed the requirement that

tribal remedies be exhausted prior to the filing of the

Federal suit.’

In certain extraordinary circumstances, ‘‘“when absolutely

necessary for protection of constitutional rights,” Younger v.

Harris, supra, 401 U.S. at 45, federal intervention in state pro-

ceedings has been sanctioned. However, such intervention is

permissible only in cases where “great and immediate” irre-

parable injury is imminet, such as where the pending state

action is being adjudicated in bad faith, or the state remedies

are inadequate. No extraordinary circumstances warranting In-

tervention are present in this case.

2See, e.g., Howlett v. Salish and Kootenai Tribes, 529 F.2d

233, 239 (9th Cir. 1976); Means v. Wilson, 522 F.2d 833 (8th

(Continued on next page)

The principles of comity and exhaustion are particu-

larly applicable and appropriate in this case. The Crow

Tribal Court provides a forum for complete and fair reso-

lution of the suit brought against petitioners and affords

ample protections for petitioners’ rights.

Petitioners were given notice of the initial complaint

brought against them in Tribal Court. As is true in any

Court, the validity of the service of process is not negated

by the fact that the individual who was served failed to

inform his colleagues of the suit. Knox County v. Harsh-

man, 133 U.S. 152, 156 (1890); States'de Machinery Co.,

Ltd. v. Alperin, 591 F.2d 234 (3rd Cir. 1979) ; Expert Elec.

Inc. v. Levine, 554 F.2d 1227 (2nd Cir. 1977) cert. denied

434 U.S. 903 (1977); N.L.R.B. v. Clark, 468 F.2d 459 (5th

Cir. 1972). But for their own internal lack of communica-

tion, petitioners could have appeared in the Crow Tribal

Court and raised the issue of subject matter jurisdiction

pursuant to Rule 7, Crow Rules of Civil Procedure

(C.R.C.P.). The Tribal Court would then have had the

opportunity to rule on the jurisdiction issue.

Even after the default judgment was entered against

them, adequate remedies were available to petitioners in

tribal court. Rule 17(d) of the Crow Rules of Civil Pro-

cedure (C.R.C.P.) provides that within 30 days of a default

judgment, the party in default may move to set aside the

(Continued from previous page)

Cir. 1975), cert. denied, 424 U.S. 958 (1976); Janis v. Wilson,

521 F.2d 724, 727 (8th Cir. 1975); McCurdy v. Steele, 506 F.2d

653, 656 (10th Cir. 1975); O’Neal v. Cheyenne River Sioux Tribe,

482 F.2d 1140 (8th Cir. 1973).

judgment for good cause shown. Rather than ignoring

and circumventing the authority of the Crow Tribal Court

by bringing suit in federal court in violation of the comity

principles, petitioners could have filed a motion pursuant

to Rule 17(d) C.R.C.P. and obtained a hearing on the merits

of the case. Under the Orders of the Tribal Court issued on

August 22, 1984, and September 19, 1984, App. to Opp. Br.

la-7a, 13a-15a this remedy is still available to petitioners,

in spite of their prior disregard for the Tribal Court.

In the event that petitioners were disatisfied with the

tribal court ruling on the jurisdiction issue, or on the

merits, further recourse is available within the Crow Tri-

bal Court system. The Crow Tribal Court system, like most

state court systems, is two-tiered. According to Rule 2(a),

Crow Rules of Appellate Procedure, a judgment or order

of the tribal court in a civil case may be appealed as a

matter of right to the Crow Court of Appeals, thereby

affording litigants as full and fair a resolution of their

disputes as is available in state courts.

Furthermore, the requirement that petitioners assert

their defenses in tribal court is consistent with and paral-

lel to the rule that an Indian who commits a tort outside

the reservation is subject to suit in state court. See,

DeCoteau v. District County Court, 420 U.S. 425 (1975) ;

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49

(1973). Correspondingly, where a tribal court assumes

jurisdiction over non-Indian defendants with respect to

an occurrence that took place on the reservation and pro-

vides a forum in which the defendants’ rights can be adju-

dicated, there is no justification for circumventing the

Tribal Court’s authority to rule on the scope of its own

jurisdiction, at least in the first instance.

The sole justification presented by petitioners for

avoiding exhaustion of available tribal court remedies is

their assertion that imposition of that requirement would

be ‘‘inappropriate considering the time and resources that

have been invested in resolving this federal court action.”

Pet.6. The only authority cited in support of this novel

proposition is a district court decision issued in 1972,

before this Court had applied the comity principles of

Younger v. Harris, 401 U.S. 37 (1971), to civil suits’ This

Court has never recognized a “time and resources” ex-

ception permitting federal courts to interfere with pending

state court proceedings.

There is no justification for allowing wealthy litigants

to circumvent state or tribal court jurisdiction simply by

expending large sums in attempting to have their claims

heard in the federal courts. The principle of comity would

be totally undermined if the exhaustion of available tribal

court remedies could be avoided in this manner. Failure

to respond to a summons issued by a judicial tribunal

should not be rewarded.

3. The merits of this case, not reached by the Ninth

Cireuit, involve the scope of the jurisdiction of the Crow

Tribal Court. If this Court decides to grant certiorari, its

review should be limited to the first two threshold issues

listed swpra at (i) involving the propriety of federal court

jurisdiction. If the Court grants certiorari and reverses

the Ninth Circuit’s holding that the federal court suit

should be dismissed, the case should then be remanded

back to that Court for consideration of the merits of the

3Teamsters Pub. Emp. U. Loc. No. 594 v. City of West

Point, Neb., 338 F. Supp. 927 (D.Neb. 1972).

petitioners’ claim that the Tribal Court lacks jurisdiction

over the Sage’s tort suit. This disposition is consistent

with the rule that this Court will not consider an issue

which was not ruled on by the court below, in the absence

of exceptional circumstances. Moses H. Cone Memorial

Hosp. v. Mercury Construction Corp. 460 U.S. 1 (1983);

Singleton v. Wulff, 428 U.S. 106, 120 (1976); Graham v.

Brotherhood of LF. & EF. 338 U.S. 232, 237 (1949).

In addition, the interests of efficiency will be served

by limiting the scope of review at the certiorari stage of

this case. Briefing on the merits of the Tribal Court juris-

dictional issue can be avoided if any grant of certiorari

is limited to the questions addressed by the Court of Ap-

peals’ majority and concurring opinions. Moreover, as

demonstrated in Sec. 4, infra, the issue of whether the Crow

Tribal Court has jurisdiction over a tort suit brought by

a tribal member regarding an accident that occurred with-

in the Reservation does not warrant review by this Court.

4. The principle of tribal jurisdiction over reservation

matters, including those involving non-Indians, has been

firmly established. Merr’on v. Jicarilla Tribe of Apaches,

455 U.S. 130 (1982); U'nited States v. Mazurie, 419 U.S.

544(1975); Ke mnerly v. District Court, 400 U.S. 423 (1971) ;

Williams v. Lee, 358 U.S. 217 (1959). This principle ap-

plies with special force to the resolution of reservation

disputes through tribal courts. As stated in Santa Clara

Pueblo v. Martinez, supra, 436 U.S. at 65:

Tribal Courts have repeatedly been recognized as ap-

propriate forums for the exclusive adjudication of

disputes affecting important personal and property

interests of both Indians and non-Indians.

The District Court’s opinion in this case was predi-

cated on the premise that the well-established principles

stated in Woalltams v. Lee, supra, were overruled by the

more recent decision of Montana v. United States, 450

U.S. 544 (1981). Pet. App. 23a-24a. This premise is con-

clusively shown to be false by this Court’s subsequent re-

liance on the continuing vitality of Wil’ ams v. Lee, supra,

as recently as July of this year. Ser Three Affiliated

Tribes v. Wold Engineering. —U.S. —, 104 S.Ct. 2267

(1984).

Tribal jurisdiction over disputes such as this one is an

essential aspeet of the retained sovereign power of the

Crow Tribe. ‘‘Ineluded in this tribal power is a broad

measure of civil jurisdiction over the activities of non-

Indians on Indian Reservation lands in which the tribes

have a significant interest.” Washington v. Confederated

Tribes of the Co'ville Indian Reservation, 447 U.S. 134,

152-153 (1980). Sve also, Merrion v. Jicarilla Tribe of

Apaches, supra, 455 U.S. at 137, 147 n.15 (1982).

The interest of the Tribe in this particular matter is

‘especially significant. Eighty-five percent of the students

in the Lodge Grass School Distriet are Crow Tribal mem-

bers. The Lodge Grass school board consists of nine mem-

bers of whom four are Crow Tribal members. See supra

at 2. The Tribe also has a significant and legitimate in-

terest in the health and safety of its children and in the

standard of care exercised by those entrusted with the case

and education of those children.

In Washington v. Confederated Tribes of the Colville

Indian Reservation, supra, this Court determined that

Indian Tribes are implicitly divested of certain sovereign

powers only where ‘‘the exercise of tribal sovereignty

would be inconsistent with the overriding interests of the

National Government.” 447 U.S. at 153. No overriding

national interest conflicts with the exercise of tribal court

Jurisdiction in this case. The dispute is local in nature and

should be resolved according to the doctrine of lex loci

deliciti, which requires that the conduct of a tort feasor

be judged in the local forum, according to local law and

custom. See e.g., Clark v. Cireus-Circus, 525 F.2d 1328,

1329 (9th Cir. 1975).

Moreover, the exercise of tribal court jurisdiction in

this case is perfectly consistent with this Court’s decision

in Montana v. Unted States, supra. Under the Montana

test, tribal jurisdicton over non-Indians is limited to situa-

tions in which non-Indians have entered into a consensual

relationship with the tribe or the conduet of the non-

Indians “threatens or has some direct effect on the poltical

or economie security, or the health or welfare of the Tribe.”

Montana v. United States, supra, 450 U.S. at 65-66.4

Sage’s tort suit directly affects three vital interests of the

Tribe: the health and welfare of its children; the quality

of care and education provided to those children; and the

maintenance of a forum for resolving disputes which arise

on the reservation.

Thus, the underlying merits of petitioners’ complaint

do not warrant review. This Court has repeatedly recog-

4The other case cited by Petitioners which limits tribal jur-

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

(1978), was based on concern for the Constitutional rights of

the criminal defendant, and is inapplicable to the issue of civil

jurisdiction. See Washington v. Confederated Tribes of the

Colville Reservation, supra, 447 U.S. at 153.

nized and affirmed the authority of tribes over reservation

matters, particularly those matters in which the Tribe has

a significant interest. In this case, the interest of the

Tribe is especially vital, involving as it does the welfare

of the Crow children. The exercise of such jurisdiction

is also consistent with other lower court decisions, e.g.,

Cardm v. De La Cruz, 671 F.2d 363 (9th Cir. 1982), cert.

denied, 459 U.S. 967 (1982); Confederat:d Salish and

Kootenai Tribes, etc. v. Namen, 665 F.2d 951 (9th Cir.

1982); cert. denied, 459 U.S. 977 (1982); Knight v. Sho-

shone and Arapahoe Tribes, 670 F.2d 900 (10th Cir. 1982) ;

Means v. Wilson, 522 F.2d 833 (8th Cir. 1975), cert. denied

424 U.S. 958 (1976) ; McCurdy v. Steele, 506 F.2d 653 (10th

Cir. 1975). The petitioners have not pointed to any lower

court decisions which support their position on the merits

of their claim that the Crow Tribal Court lacks jurisdic-

tion over Sage’s suit.

——

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Rosert 8S. PELcYGER*

BarBara LAVENDER

Tuomas R. ACEVEDO

FreperiIcKs & PELCYGER

1007 Pearl St., Suite 240

Boulder, CO 80302

(303) 443-1683

Attorneys for the Crow Tribe

& Crow Tribal Officials

October 29, 1984

*Counsel of Record

APPENDIX

IN THE CROW TRIBAL COURT

IN AND FOR THE CROW RESERVATION

CROW AGENCY, MONTANA

Civ. Case No. 82-287

LEROY SAGE, a minor by

FLORA NOT AFRAID, his guardian,

Plaintiff,

vs.

LODGE GRASS SCHOOL DISTRICT NO. 27,

Defendant.

MEMORANDUM and

ORDER

The Defendants, through their counsel, Jack Ramirez,

appeared before this Court on August 22, 1984, and by

special arrangements, filed a document entitled “SPE-

CIAL APPEARANCE, PREEMPTORY MOTIONS,

ANSWER, MOTION TO SET ASIDE DEFAULT, AND

MOTION FOR TEMPORARY RESTRAINING OR-

DER”. A hearing was scheduled to review these motions

on less than one day’s notice. Said motions were filed

minutes before the hearing on August 22, 1984. The

Plaintiff’s attorney, Clarence Belue, was notified of these

motions, and was present at the hearing. After review-

ing the evidence presented and the arguments of the

parties, the following is hereby entered.

MEMORANDUM AND ORDER

This case has a long history which is a matter of pub-

lie record, and will not be set forth in this order, in the

interests of getting this order out in a timely manner. A

default judgment exists against the Defendants, and cer-

tain property has been seized to satisfy this judgment

against them. Pursuant the applicable Rules of Civil

Procedure of the Crow Tribal Code, this property was

seized under a Writ of Execution issued by this Court on

August 1, 1984. A sale of this property has been properly

noticed and scheduled for August 23, 1984. Said Defen-

dants’ only filing in this ease to date, filed August 22,

1984, is aimed at preventing the sale of this property.

Initially, this Court must review the documents which

the Defendants have chosen to file. While this Court is

willing and ready to review everything pertinent to this

case, certain filings are simply inappropriate at this time,

and will not be accepted or reviewed at this time. Spe-

cifically, an answer to the Piaintiff’s original complaint

is not reviewable, and is not valid until such time as the

Defendant's have set aside the default judgment.

A motion for a Rule 22 Temporary Restraining Order

would also appear to be improper at this time, as there is

no action pending here for a permanent injunction. (See

Genera'ly, Rule 22(a)). It should be noted, that if such

an action were brought, serious questions would arise

about the issue of this case being res judicata. Attacking

one ease by bringing a completely separate proceeding

would noramally be inappropriate.

The Defendants do have a basis for requesting in-

junctive relief under Rule 20(c). Injunctive relief may

be granted for any of the following purposes:

1. To reduce an excessive seizure, if it can be shown

that the value of the property seized exceeds the

value of the seizing creditor’s interest and the proper-

ty is subject to division;

2. To prevent the seizure of exempt property;

3. To prevent the seizure if it be shown that some

illegality has occurred in the proceedings prejudicial

to the judgment creditor;

4. To prevent the seizure if it be shown that the

judgment has been satisfied.

(See Rule 20(c), Crow Tribal Rules of Civil Proce-

dure)

The Defendants, through testimony presented at the

August 22, 1984 hearing, proved, to the satisfaction of this

Court, that certain property seized did not belong to them.

Specifically, it is this Court’s finding that two sets of 16

inch tire chains and one eight (8) ton jack do not belong

to the School District. These items were in the Blue Ford

Club Cab pickup seized, and should be immediately re-

turned to School District officials.

Additionally, it is this Court’s finding that one (1)

Epson FX-100 Printer, Serial No. 481667, and one (1)

monitor, Serial No. 0057735, do not belong to the School

District, and should be immediately returned to School

District officials. These items to be returned shall be

immediately identified and delivered to the School District

so that they may deliver them into the possession of the

rightful owners.

The School District also presented some testimony

that two (2) Epson FX-100 printers, with the Serial Nos.

481710 and 481709, might well belong to the Federal gov-

ernment at this time, although eventually they will belong

to the School District. Further clarification on the own-

ership of these printers is needed, and the Defendants

shall have one week from the date of this order to submit

further evidence of the ownership of these printers. Said

printers shall be held out of the scheduled August 23, 1984

sale, but if further satisfactory evidence of ownership is

not received in one week, a sale of these items will be

scheduled.

Testimony indicated that all other items currently

scheduled to be sold on August 23, 1984, are the property

of Lodge Grass School District No. 27. Superintendent

Larry LaCounte affirmed that only the above-noted items

belonged to someone other than the School District. He

did note that the Blue Ford Club Cab pickup seized was

used by the High School District, but acknowledged that

official registered ownership was in Lodge Grass School

District No. 27.

Essentially, the above-noted property which is to be

returned can be classified as “exempt” property, and the

Defendants have been granted relief as to that property—

it will be returned. For the remaining property, except as

noted, this Court finds that it is not exempt from seizure

and sale at this time.

The Defendants have set forth reasons they feel war-

rant the setting aside of the default judgment in this case.

Unfortunately, the Defendants have been lax in present-

ing their motion and arguments on this issue, and only

now have come before this Court, the day before the sched-

uled sale of the seized property. They have raised sub-

stantial legal issues which this Court wil! not address with-

out a full hearing, research, and briefs by counsel.

This Court will not issue an injunction to prevent this

sale on the basis of Rule 20(c). When the above-mentioned

property is returned, there appears to be no basis, after

review of the evidence now before this Court, to issue a

Rule 20(¢c) injunction. This Court has been presented with

a difficult factual determination less than 24 hours before

a scheduled sale of property which the parties were aware

of for at least 2-3 weeks. Very little evidence was pre-

sented by the Defendants in support of their lengthy ar-

guments. The Plaintiff had very little time to prepare

to respond to the Defendants allegations. Nearly all of

the factual allegations the Defendants cite in support of

their Motion for a Temporary Restraining Order were

provable in October or November of 1982. There appears

to be no reasonable explanation as to why such evidence

and arguments were not presented at an earlier time when

they could have been further developed and considered.

The Defendants have placed themselves in this diffi-

cult situation, and have drawn the Plaintiff through pro-

tracted litigation with very little end in sight. After care-

ful consideration, this Court holds that it will consider

the Defendants Motion to Set Aside the Default Judge-

ment, but will not enter a Temporary Restraining Order

preventing the sale on August 23, 1984. Nevertheless, be-

cause of the importance of the allegations the Defendants

are raising, this Court will stay the sale on August 23,

1984, until the Motion to Set Aside the Default Judgement

has been decided, if the Defendants post a satisfactory

surety bond in the amount of the appraised value of the

items being held for sale. Said appraised value shall be

reduced by the appraised value of the items herein ordered

to be returned or held from this sale.

If the Defendants wish to stay any further execution

processes in this Court on the basis of the Default judge-

ment, they shall be required to post a satisfactory surety

bond in the amount of the judgement remaining after the

value of the sale items has been subtracted. Such a stay

would be effective until the Motion to Set Aside the De-

fault Judgement has been ruled upon.

The above-noted stays, while not specifically author-

ized by the Rules of Civil Procedure, are well within this

Court’s equitable powers to insure that justice is received

in this ease. They also fall within the guidelines of Rules

17 and 18 of the Crow Tribal Rules of Civil Procedure on

Default Judgements and Stays of Proceedings to Enforce

Judgements. While the Plaintiff certainly has the right

to expect enforcement of the default judgement, the De-

fendants should have an opportunity to fully present their

significant reasons for setting aside this default judgement.

The parties are hereby given notice that a hearing

will be held on September 19, 1984, at 10:00 A.M., at the

Crow Tribal Courthouse in Crow Ageney, Montana, to re-

view all pertinent evidence and arguments on the Defend-

ant’s Motion to Set Aside the Default Judgement. The

attorneys of record are hereby directed to submit briefs

on this matter prior to the above-noted hearing date. They

shall file a stipulated briefing schedule for this issue with-

in four working days of this order. After the hearing on

this Motion, the parties will be given an opportunity to

submit proposed orders.

WHEREFORE, IS IS HEREBY ORDERED that an

order be entered consistent with the above. The sale of

seized property scheduled in this case for August 23, 1984,

shall be held unless action is taken consistent with the

above order.

ORDERED AND SIGNED THIS 22 DAY OF AU-

GUST, 1984.

/s/ Tommy E. Round Face

Judge, Crow Tribal Court

/s/ Melody K. Harris

Clerk, Crow Tribal Court

(SEAL)

CERTIFICATE

State of Montana )

Crow Tribal Court ) ss.

Big Horn County _)

I hereby certify that this sheet and all

attached sheets identified by impression

of my Official Seal, are each and all true

and correct copies of originals filed in my

a in Crow Tribal Ct. Case. No. CIV 82-

Witness my hand and official seal this

23rd day of August, 1984.

/s/ Melody K. Harris

Clerk of Crow Tribal Court

Big Horn County, Montana

Deputy Clerk

| IN THE CROW TRIBAL COURT

IN AND FOR THE CROW RESERVATION

CROW AGENCY, MONTANA

Civ. Case No. 82-287

LEROY SAGE, a minor, by

FLORA NOT AFRAID, his guardian,

Plaintiff

vs.

LODGE GRASS SCHOOL DISTRICT NO. 27,

Defendant.

SUPPLEMENTAL ORDER

This Court hereby supplements its order of August

22, 1984, as several significant events have taken place.

The Defendants apparently have applied to the United

States Supreme Court for an emergency recall of the Ninth

Cireuit mandate which directed the Montana Federal Dis-

trict Court to dissolve its injunction against enforcement

of this Court’s judgement.

Early this morning, this Court learned that Associate

Justice William Rehnquist of the United States Supreme

Court had, at least temporarily, granted the Defendant’s

application to withdraw the Ninth Cireuit’s mandate. This

would apparently reinstate the Federal District Court’s

injunction against enforcement of the existing Judgement

in this case.

The effect of this action is not immediately apparent,

as it would appear that the United States Supreme Court,

in Santa Clara Pueblo vs. Martinez, 436 U.S. 39 (1978),

has previously stated that federal courts lack the authority

to review the actions of Tribes, and hence Tribal Courts.

It is also most difficult to determine the full intent and

effect of this order without reviewing it.

Nevertheless, this Court wants the Defendants to avail

themselves of every possible opportunity to protect their

interests, if they feel they have been wronged in some way.

The Supreme Court, through Justice Rehnquist, appar-

ently intends to somehow summarily review the processes

of the Ninth Cireuit Court of Appeals and the claims of

the Defendants. This Court will postpone the sale of the

seized property in this case, pending the review the Su-

preme Court is now undertaking. It is this Court’s under-

standing that this review will take at least until Septem-

ber 4, 1984.

THEREFORE, IT IS HEREBY ORDERED that the

sale of property seized pursuant this Court’s Writ of Exe-

cution dated August |, 1984, is hereby postponed until fur-

ther orders of this Court. The Plaintiff is hereby ordered

to continue his measures insuring that this property is

kept in a safe, secure place, pending further orders of this

Court. The parties are hereby put on notice that the re-

quirements of the order of August 22, 1984, remain in ef-

feet, except that the scheduled sale will not be held, and

further execution processes will not be ordered until fur-

ther orders of this Court, as noted above.

ORDERED AND SIGNED THIS 23rd DAY OF AU-

GUST, 1984.

/s/ Tommy E. Round Face

Judg., Crow Tribal Court

/s/ Brenda Yarlott

Clerk, Crow Tribal Court

(SEAL)

CERTIFICATE

State of Montana )

Crow Tribal Court ) ss.

Pig Horn County )

I hereby certify that this sheet and all

attached sheets identified by impression

of my Official Seal, are each and all true

and correct copies of originals filed in my

office in Crow Agency Case No. Civ 82-287.

10a

Witness my hand and official seal this

23rd day of August, 1984.

Clerk of Crow Tribal Court

Big Horn County, Montana

By Brenda Yarlott

Deputy Clerk

IN THE CROW TRIBAL COURT

IN AND FOR THE CROW RESERVATION

CROW AGENCY, MONTANA

Civ. Case No. 82-287

LEROY SAGE, a minor, by

FLORA NOT AFRAID, his guardian,

Plaintiff,

vs.

LODGE GRASS SCHOOL DISTRICT NO. 27,

Defendant.

SUPPLEMENTAL ORDER

This Court hereby supplements it’s orders of August

22, 1984, and August 23, 1984, to further clarify the

action needed by the Defendants to protect their inter-

ests in this ease. This order is being issued in recogni-

tion of the important issues in this case, potentially af-

fecting the school children of Lodge Grass School Dis-

trict No. 27, so that said School District has a clear un-

derstanding of this Court’s orders.

lla

The judgement in this cause was for $153,010.00. As

the Defendants noted at the hearing on August 22, 1984,

it is reasonable to assume that interest will accrue on this

amount from the date of judgement, until satisfaction.

Indeed, this Court ordered that interest accrue against

this judgement at the rate of ten (10) per cent per an-

num, until this judgement is satisfied. The Defendants

have indicated that they intend to pursue remedies in

the United States Supreme Court, and, in fact, the United

States Supreme Court has taken tentative action in this

case upon the application of the Defendants. Such re-

view by the United States Supreme Court could delay

final action in this ease for yet another year.

In computing the interest on this judgement from

October, 1982, through October, 1985, assuming this

case will be settled by October, 1985, it appears that

about $45,000 in interest will accrue. Additionally, it is

reasonable to assume that the Defendants have incurred

about $1000-420000 in expenses in setting up the post-

poned sale, and in storing the seized items to date, as

well as in maintaining them in storage. Therefore this

Court fixes $200,000.00 as the total amount of the surety

bond the Defendants must post to completely forestall

further actions to execute upon this Court’s judgement of

October 25, 1982.

THEREFORE, IT IS HEREBY ORDERED that

the Defendants, in order to gain the relief outlined by

this Court in it’s August 22, 1984 order, shall post a

surety bond in the total amount of $200,000.00. This

amount shall be posted in cash, in a form agreed to by

stipulation of the Plaintiff, or in a form acceptable to

12a

this Court after a hearing in which all parties have a

right to appear and present their positions on this mat-

ter. Further clarification on this matter shall be in-

itiated by the written motions of the inquiring party.

ORDERED AND SIGNED THIS 27th DAY OF

AUGUST, 1984.

Tommy E. Rounp Face

Judge, Crow Tribal Court

Mevopy K. Harris

(SEAL) Clerk, Crow Tribal Court

CERTIFICATE OF SERVICE

This is to certify that the above order

was duly served on the attorneys of

record at their addresses or address of

record by first class postage prepaid on

this 27th day of August, 1984, by:

Melody K. Harris

ec. Jack Ramirez

P.O. Box 2529

Billings, Mt. 59103

personally Clarence Belue

served on: 215 W. Third

Hardin, Mt. 59034

File No. CV82-287

13a

IN THE CROW TRIBAL COURT

IN AND FOR THE CROW RESERVATION

CROW AGENCY, MONTANA

Civ. Case No. 82-287

LEROY SAGE, a minor, by

FLORA NOT AFRAID, his guardian,

Plaintiff,

vs.

LODGE GRASS SCHOOL DISTRICT No. 27,

Defendant.

ORDER

In this Court’s order of August 22, 1984, the parties

in this case were directed to submit a stipulated briefing

schedule outlining the time each would have to submit

briefs on the Defendant’s Motion to Set Aside the Default

Judgement. At that time, a hearing was scheduled on

September 19, 1984, so that the parties could have an op-

portunity to present evidence on this matter. This Court

received nothing further from the parties relating to a

briefing schedule, and therefore on September 6, 1984, this

Court issued a supplemental order outlining a briefing

schedule for the parties, and reaffirming the September

19, 1984 hearing date for 10:00 A.M., at the Crow Tribal

Courthouse in Crow Agency, Montana. This hearing was

held as scheduled. At the time of hearing, the Defendants

had not filed a brief in support of their motion. The

Plaintiff did file a brief in opposition of the motion prior

to the hearing. The Plaintif, through his counsel, Clarence

Belue, did appear, and present his arguments against the

l4a

motion. The Defendants did not appear, although they

did call and note that they would not be appearing.

The Defendants were apparently under the mistaken

impression that Judge James Battin’s Order, reinstating

his injunction against execution on the default judgment,

somehow barred this Court from hearing a motion brought

by the Defendants. Clearly, Judge Battin intended the

Plaintiff in this action be enjoined from pursuing exccu-

tion on the default judgment issued by this Court. In his

Order of September 10, 1984, Judge Battin stated:

eee eS and that the individual defendants

Leroy Sage, a minor, his guardian, Flora Not Afraid,

their counsel, the individual defendants named above,

and anyone attempting to act on the basis of Crow

Tribal Court civil case 82-287, are enjoined from exe-

cuting on any judgment or selling any property by

execution or pressing any claim against the plaintiffs

in the above-captioned case arising from the May 27,

1982, injury to Leroy Sage.” (Emphasis added)

(NOTE: Our Defendants were the Plaintiffs in

federal court)

The hearing on this date, September 19, 1984, was to

consider the motion filed by the Defendants. It was not

for the purpose of “ .... execution of pressing any claim

against the plaintiffs... .. ” The Defendants’ motion was

still before this Court on September 19, 1984. If they did

not wish it to be consideerd, they could have withdrawn

their motion, or asked that it’s consideration be stayed for

a later date. At the time of the hearing on September 19,

this Court had received nothing from the Defendants on

this motion, except for the original filing of the motion

itself.

15a

This hearing was scheduled for over a month. The

Plaintiff prepared for this hearing, and was present. The

Court received the Plaintiff’s presentation, as it seemed

grossly unfair to postpone the hearing and refuse the

Plaintiff’s arguments when the Defendants had filed noth-

ing to request such action.

This Court stands ready now to rule on the merits of

the Defendant’s Motion to Set Aside the Default Judge-

ment, based on the information received to date. Never-

theless, this Court wishes to give the Defendants every

possible opportunity in this case, and therefore, a final

ruling will not be entered on this motion until after this

ease has received it’s final review before the United States

Supreme Court.

THEREFORE, IT [IS HEREBY ORDERED that the

above findings be entered in this case. This Court will

not enter judgement on the Defendants’ Motion to Set

Aside the Default Judgement until final review of this

case by the United States Supreme Court. If the De-

fendants wish to file anything further in support of their

motion, it shall be their responsibility to initiate such

considerations.

ORDERED AND SIGNED THIS 19th DAY OF

SEPTEMBER, 1984.

Lone E. Rounp Face

Judge, Crow Tribal Court

Me vopy K. Harris

(SEAL) Clerk, Crow Tribal Court

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.