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

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In The a el Ee

Supreme Court of the United States

October Term, 1984

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NATIONAL FARMERS UNION INSURANCE

COMPANIES, et al.,

Petitioners,

CROW TRIBE OF INDIANS, et al.,

Respondents.

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Vv

On Writ of Certiorari To The United States Court

of Appeals For The Ninth Circuit

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BRIEF FOR CROW RESPONDENTS

— C

O

Ropert 8S. PELCYGER

FREDERICKS & PELCYGER

Canyon Center, Suite 216

1881 9th Street

Boulder, Colorado 80302

(303) 443-1683

Attorneys for Crou Respondents

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

TEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the Crow Tribe’s sovereign immunity

bars this action against the Crow Tribe, the Crow tribal

entities and the Crow tribal officials.

2. Whether the Federal District Court properly en-

tertained a suit challenging the civil jurisdiction of the

Crow Tribal Court over a tort suit brought by a tribal

member against a local School District based on an acci-

dent that took place within the Crow Reservation, when

there was no claim of imminent irreparable injury and

the School District had not appeared before the Tribal

Court or made any attempt to exhaust tribal court rem-

edies.

3. Whether the Crow Tribal Court may, as a matter

of federal law, exercise civil jurisdiction over a tort suit

brought by a tribal member against a School District

when the accident took place on school grounds within the

Crow Reservation, the accident was caused by the negli-

gent maintenance of a dangerous condition and/or the in-

adequate supervision of Crow children during school hours,

and the School District has regular, extensive, and sig-

nificant contacts and connections with the Crow Tribe and

its members.

TABLE OF CONTENTS

Pages

QUESTIONS PRESENTED i

STATEMENT OF THE CASE 1

SUMMARY OF ARGUMENT 5

ARGUMENT 7

I. SOVEREIGN IMMUNITY BARS THIS AC-

TION AGAINST THE CROW TRIBE AND

THE CROW TRIBAL ENTITIES AND OF-

FICIALS. 7

If. THE FEDERAL DISTRICT COURT SHOULD

NOT HAVE ENTERTAINED THE SUIT

CHALLENGING THE CROW TRIBAL

COURT’S JURISDICTION OVER THE TORT

_ , AEC mEN ET onateienaaiiiaae . 13

if. THE CROW TRIBAL COURT HAS JURIS-

DICTION OVER THE TORT SUIT BROUGHT

BY TRIBAL MEMBERS AGAINST THE

SCHOOL DISTRICT WITH RESPECT TO AN

ACCIDENT OCCURRING WITHIN THE

et me 21

A. Indian Tribes Retain the Inherent Sovereign

Power to Adjudicate Civil Causes of Action

Arising Within Reservations and Involving

eo B,D . 21

B. The Crow Tribal Court is Not Deprived of

Its Jurisdiction by the Nature of the School

District or the Title Status of the School

GI, senescence 28

Conclusion cvintitaiiinseshiieaaaeeaen 33

iil

TABLE OF AUTHORITIES

Pages

CasEs:

Alabama v. Pugh, 438 U.S. 781 (1978) co ccccsssmmemenen 8

Atlantic Coast Line R. Co. v. Brotherhood of

Locomotive Engineers, 398 U.S. 281 (1970) .............. 17

Babbit Ford, Inc. v. Navajo Indian Tribe, 710

I'.2d 587 7 (9th ¢ Cir. sath cert. denied, — U.S.

— le a eens A ~

Boddie v. Connecticut, 401 U.S. 371 (1971) on 23, 25

Buster v. Wright, 135 F. 947 (8th Cir. 1905),

appeal dismissed, 203 U.S. 599 (1906) 000000 22

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

1962), cert. dented, 459 U.S. 967 22

Confederated Salish & Kootenai Tribes v. Namen,

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

CL SL 24

Cowan v. Rosebud Sioux Tribe, 404 F. tint

1338 (D.S.D., 1975) ~ TN ics Ie

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

425 (1975) . cas ee 33

Donovan v. Dallas, 377 U. s. 408 ( 1964) . i 11, “15, 16

Eastern Navajo Industries, Inc. v. Bureau of

Revenue, 552 P.2d 805 (N.M. App. 1976), cert.

Teen en een 29

Edelman v. Jordan, 415 U.S. 651 (1974) 20. 8,9

Ex Parte Young, 209 U.S. 123 (1907) WW. 9, 10, 11, 16

Fisher v. District Court, 424 U.S. 382 (1976) .0. 18, 26

Ford Motor Co. v. Department of er 323

EEE 8

General Atomic Co. v. Feller, 434 U. s. 12 (1977) ..... 11

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

233 (9th Cir. 1976) i 18

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ........ 11, 16, 21

iv

TABLE OF AUTHORITIES—Continued

Pages

Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89

(8th Cir. 1956) ..... sasiteatitiaaiee *

Janis v. Wilson, 521 F.2d 724 (8th Cir. 1975) WW. 18

Juidice v. Vail, 480 U.S. 327 (1977) 0... 11, 16, 20, 21

Kennerly v. District Court, 400 U.S. 423 (1971) 18

Knight v. Shoshone & Arapahoe Tribe, 670 F.2d

900 (10th Cir. 1982) vaesie: “Ee

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

CEU eesiastnsneesitenteetaicecinitictetlchascia alah dnt La a sas .

McCurdy v. Steele, 506 F.2d 653 (10th Cir. 1975) . 18

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

Game, GG TT, GED CIID iceccecesessecteccteeceetcinncescionce 18

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

(1982) ... sieinieiditancintnitatanteabecenentel 17, 21, 22, 23, 24, 30, 32

Mesealero Apache Tribe v. Jones, 411 U.S. 145

SEITEN <icishserasiasttensinteineddiuoamannuaiimiatitabiatl eaten 29, 31, 32

Middlesex Ethics Comm. v. Garden State Bar

Pe er 17

Minnesota v. United States, 305 U.S. 382 (1939) 0. = 8

Moe v. Confederated Salish & Kootenai Tribes,

425 U.S. 463 (1976) neces nnsrtnirnn 32, 33

Montana v. United States, 450 U.S. 544 (1981) _...24, 25,

26, 31, 32

Morton v. Mancari, 417 U.S. 535 (1974) 0... 17

Mt. Healthy School District v. rao 429 U.S. 274

' 3) A =e iguiniisma etnies. ae

Nevada v. Hall, 440 U.S. 410 (1979) 2.26, 80, 31

New Mexico v. Mescalero Apache Tribe, 103 S.Ct.

SEE CHIE sccrscninsiescckecitasnsditeenteiuaieanl 17, 21, 22, 24, 25, 29, 31

v

TABLE OF AUTHORITIES—Continued

Pages

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

1140 (8th Cir. 1973) 18

Patsy v. Florida Board of Regents, 457 U.S. 496

RE ciiietedina 8, 12, 31

Peck v. Jenness, 7 How. (48 U.S. ) 612 (1849) __.W... —

Provident Tradesmens Bank & Trust Co. v. Pat-

terson, 390 U.S. 102 (1968) ....... . 12

Puyallup Tribe v. aes aga hdd of Game,

433 U.S. 165 (1977) ... acinik i aeiameameaiia ne

Ramah Navajo School Board v. eee of Rev-

ae rr I diccecticccnessnicenientansnacinteenscidececaniastiee - 2

Santa Clara Pueblo v. Martinez, 436 U. S. 49 (1978) ....3, 7,

10, 18, 19, 23, 25, 26, 27

State ex. rel. Flammond v. Flammond, — Mont.

—, 621 P.2d 471 (1980) . REY ORTT LO,

Steffel v. Thompson, 415 U.S. 462 (1974) . ica

Three Affiliated Tribes v. Wold Resiocorinn, 3 104

Sere aed 24, 27

Trainor v. Hernandez, 431 U.S. 434 (1977) WW... . 16

Turner v. United States, 248 U.S. 354 (1919) .W.. a.

United States v. Mazurie, 419 U.S. 544 (1975) ............. 18, 21

United States v. Mission Golf Course, 548 F.

Supp. 1177 (D.S.D. 1982), aff'd 716 F.2d 907

(8th Cir. 1983) cert. demied, — US. oeeeceecccccecccessen eee 29

United States v. United States Fidelity & Guar.

Co., 309 U.S. 506 (1940) 8

Washington v. Confederated Tribes of Colville

Indian Reservation, 447 U.S. 134 (1980) .......... 21, 22, 24, 25

Webb v. Webb, 451 U.S. 493 (1981) ............. mae

Weinberger v. Salfi, 422 U.S. 749 (1975) WW. aaaenaal a

vi

TABLE OF AUTHORITIES—Continued

Pages

White Mountain Apache Tribe v. Bracker, 448

U.S. 136 (1980) 17, 24, 29

Williams v. Lee, 358 U.S. 217 (1959) 17, 18, 23, 24,

25, 26, 27

Younger v. Harris, 401 U.S. 37 (197V) ncccccccsccssssee 16, 17

RULE:

F.R.Civ.P. Rule 19(b) 12

SraTUTEsS AND REGULATIONS:

18 U.S.C. $1151 Pan iota ar NN 33

25 U.S.C. $415 32

25 U.S.C. §1901(3) ... ateisslinedsasdlatiabdai 27

fA a 16, 21

15 Stat. 649 (1868) Sane Bho nero enaT 23

41 Stat. 756 (1920) 31

RS eee = 31

TExtTs:

Cohen’s Handbook of Federal Indian Law 257

(1982) F SOR coer a 32

Collins, “Implied Limitations on the Jurisdiction

of Indian Tribes,” 54 Wash. L. Rev. 470 (1979) ........... 26

No. 84-320

ry

MY

In The

Supreme Court of the United States

October Term, 1984

— =

ww

NATIONAL FARMERS UNION INSURANCE

COMPANIES, et al.,

Petitioners,

Vv.

CROW TRIBE OF INDIANS, et al.,

Respondents.

fy

VY

On Writ of Certiorari To The United States Court

of Appeals For The Ninth Circuit

ray

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BRIEF FOR CROW RESPONDENTS

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Vv

STATEMENT OF THE CASE

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

the Crow Tribe, was struck by a motorcycle on the grounds

of the Lodge Grass Elementary School in Lodge Grass,

Montana while returning from a school sponsored activity.

The school is located within the exterior boundaries of the

1

Crow Reservation and 85 percent of its student body are

Crow Indians. Five of the nine members of the Lodge

Grass School Board also are members of the Crow Tribe.

In September 1982, Leroy Sage filed suit in Crow

Tribal Court through his guardian, Flora Not Afraid. The

complaint alleged that Sage’s injuries were caused by

the negligent conduct of Petitioner Lodge Grass School

District No. 27 (“the School District”), specifically, the

unsafe condition of the school parking !ot and inadequate

supervision during school hours.

The Chairman of the School Board, a member of the

Crow Tribe, was served with process, but the School Dis-

trict did not answer or otherwise appear in Tribal Court.

Accordingly, on October 19, 1982, a default judgment was

entered in Tribal Court against the School District.!. On

October 25, 1982, the Tribal Court mailed a copy of the

default judgment to the Chairman of the School Board.

Both the principal official of the School District and its

insurer, National Fariners Union Insurance Companies,

had actual knowledge of the default judgment by Oc-

tober 29, 1982. Although Crow Tribal Court procedures

permit default judgments to be set aside within 30 days,

the School District took no action in Tribal Court. See

Pet. App. 15a-16a; J.A. 16-17.

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

its insurer filed suit in the Federal District Court for

1 Under the Crow Tribe’s Rules of Civil Procedure, answers

must be filed within fifteen days of service. J.A. 7-8, 16-17.

The Chairman of the School District was served on September

28, 1982 and the default judgment was taken 21 days later,

on October 19, 1982. Pet. App. 16a.

3

Montana. Named as Defendants were the Crow Tribe,

the Crow Tribal Council, the Crow Tribal Court, Eddie

Roundface, Glen Birdinground and Ira Lefthand, judges

of the Crow Tribal Court, and Donald Stewart, Sr., Chair-

man of the Tribal Council (the “tribal defendants”). The

complaint challenged the validity of the Tribal Court

judgment against the School District and National Farm-

ers, alleging that the Tribal Court lacked jurisdiction over

the controversy and that the constitutional rights of the

School District and National Farmers had been violated

by the Tribal Court action. The Tribal Court plaintiffs,

Sage and Not Afraid, later were joined as defendants.

See J.A. xv.

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

sued a temporary restraining order enjoining the Tribe

and the tribal defendants from executing the Tribal Court

judgment’ On December 29, 1982, the District Court

permanently enjoined execution of the tribal court judg-

ment by any of the individual federal court defendants

on the ground that the Tribal Court lacked jurisdiction

over the tort that was the basis of the default judgment.

Pet. App. 14a-27a.

The Court of Appeals reversed. Based on the rea-

soning of Santa Clara Pueblo v. Martinez, 436 U.S. 49

(1978), and its own previous decisions, the majority held

that the Crow Tribal Court was the proper forum for

determining the extent of its own jurisdiction. Pet. App.

2 The District Court’s subsequent January 26, 1983 Memo-

randum Opinion, Pet. App. 14a, incorrectly states (at 16a-17a)

that the temporary restraining order was directed to Sage.

Actually, at the time that order was issued, Sage and Not Afraid

had not yet been joined as defendants. See J.A. xiii, xiv, xv.

4

7a. Consequently, the majority concluded that the com-

plaint 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. Alii ough Judge Wright dissented

from the holding that federal court review of tribal pro-

ceedings was precluded, he stated that such review would

be appropriate only after exhaustion of tribal court reme-

dies. Exhaustion was found to be required by the doc-

trine of comity and by “the federal policy of protecting

and strengthening tribal institutions.” Pet. App. lla.

Since the School District had uot even made an appear-

ance in Tribal Court, the available Tribal Court remedies

obviously had not been exhausted and the complaint there-

fore should have been dismissed.

On August 1, 1984, shortly after the Court of Appeals’

mandate was issued, the Crow Tribal Court issued a writ

of execution pursuant to which some Schocl District prop-

erty was seized. Sale of the property was scheduled for

August 23. On August 22, the School District appeared

in the Tribal Court for the first time, seeking to enjoin

the sale and to set aside the default judgment. That

Court, in Orders dated August 22 and August 23, post-

poned the sale, and set a hearing to consider the School

District’s motion to set aside the default judgment. Br.

in Opp. App. la-9a.

The School District also applied to Justice Rehnquist

for a stay of the Ninth Cireuit’s mandate. Justice Rehn-

quist issued a temporary stay on August 21, 1984 and con-

tinued the stay on September 10. Reply Br. App. la-8a.

On September 19, the Tribal Court entered an Order post-

poning a ruling upon the motion to set aside the default

judgment until after final review of the federal court pro-

ceedings by this Court. Br. in Opp. App. 10a-15a.

SUMMARY OF ARGUMENT

1. This action cannot be maintained against the

Crow Tribe, the Crow Tribal Council, the Crow Tribal

Court, the Chairman of the Crow Tribe, and the judges

of the Crow Tribal Court owing to their sovereign im-

munity. While sovereign immunity does not preclude

suits against officials who are alleged to have acted be-

yond the scope of their authority or unconstitutionally,

that rule is not applicable here. Only one of the individ-

ually named Crow respondents participated in or had any-

thing to do with the actions challenged by the petitioners.

That official, Tribal Court Judge Roundface, is not sub-

ject to the doctrine permitting injunctions against ultra

vires actions because courts cannot be enjoined from pro-

ceeding in their own way to exercise jurisdiction.

Z. The Federal District Court should not have enter-

tained the suit challenging the jurisdiction of the Crow

Tribal Court under the circumstances presented in this

ease. The Crow Tribal Court is the natural and logical

forum for the resolution of reservation-based disputes in-

volving tribal members. All defenses to the Tribal Court’s

jurisdiction should be raised and considered, at least in

6

the first instance, in that Court. The peti!’»ners’ failure

even to pursue, let alone exhaust, any tribal court rem-

edies, precludes any consideration of their claims by the

fedéral courts. This result is supported not only by the

policies underlying the exhaustion doctrine, but also by

fundamental principles governing the relationship be-

tween the courts of two different sovereigns within a

federal system and by this Court’s decisions giving effect

to Congress’ policy of furthering tribal self-gevernment

and protecting the role of tribal courts in resolving civil

disputes affecting important personal and property in-

terests of both Indians and non-Indians. This is not an

appropriate case in which to speculate about the excep-

tional circumstances under which it might be appropriate

for federal courts to intervene by enjoining parties to

tribal court proceedings.

3. The Crow Tribal Court has jurisdiction to adju-

dicate reservation-based tort claims involving tribal mem-

bers. The authority to establish a system for resolving

disputes arising within its territory and affecting its

members is a fundamental characteristic of any organized

and cohesive society. That authority is included in the

Crow Tribe’s retained, inherent sovereignty and it has

not been divested by any federal law or by necessary im-

plication of the Tribe’s independent status.

The Crow Tribe has an essential interest in provid-

ing a forum for the resolution of reservation-based dis-

putes involving its members. That is especially true in

this case which also implicates the Tribe’s interest in the

health, safety and welfare of its children and in the stand-

ard of care exercised by those entrusted with their educa-

tion. Denying the Crow Tribe’s jurisdiction in this case

would subject a suit arising on the reservation involving

7

reservation Iudians to a forum other than the one they

have established for themselves. That would undermine

the authority of the tribal court and therefore would in-

fringe on the right of the Crow Indians to govern them-

selves.

The Crow Tribal Court is not deprived of its juris-

diction by virtue of the nature of the School District or

the title status of the school grounds. Although in form

the School District is a political subdivision of the State,

its substance is predominantly Indian. It takes full ad-

vantage of the governmental services, police, fire and

judicial, provided by the Crow Tribe and the Bureau of

Indian Affairs and does not enjoy the State’s immunity

from suit. States and their agents should not be treated

any differently than Indian tribes which generally be-

come subject to state jurisdiction when they venture off

their reservations.

Although the status of land title has an important

bearing on some Indian jurisdictional issues, it should

not be relevant in this case where nothing would have

been any different if the accident had happened on trust

land. Moreover, congressional policy strongly disfavors

the kind of impractical patterns of checkerboard juris-

diction which would make jurisdiction over tort claims

turn on the title status of the land where accidents occur.

ty.

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ARGUMENT

I. Sovereign Immunity Bars This Action Against

The Crow Tribe And The Crow Tribal Entities

And Officials.

This Court repeatedly has held that Indian tribes

are immune from suit without express authority in a

federal statute or lawful consent. Santa Clara Pueblo v.

8

Martinez, 436 U.S. 49, 58 (1978); Puyallup Tribe v. Wash-

ington Dept. of Game, 433 U.S. 165, 172-73 (1977) ; United

States v. United States Fidelity & Guar. Co., 309 U.S. 506,

D912 (1940); Turner v. United States, 248 U.S. 354, 358

(1919). The sovereign immunity defense is jurisdictional

in nature. It can be raised at any stage of the litigation

and, under most circumstances, will be considered by this

Court even if it was not addressed by the lower courts.

Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam) ; Edel-

man v. Jordan, 415 U.S. 651, 678 (1974); Ford Motor Co.

v. Department of Treasury, 323 U.S. 459, 466-467 (1945) ;

Minnesota v. United States, 305 U.S. 382, 388-389 (1939).

Cf. Patsy v. Florida Board of Regents, 457 U.S. 496, 515

n.19 (1982) (Supreme Court did not address sovereign

immunity issue raised sua sponte during oral argument

where it was not briefed by the parties and the state

agency expressly requested that the Court resolve the

case on the basis of another issue).

Plaintiff brought this action against the Crow Tribe,

the Crow Tribal Council,’ the Crow Tribal Court, the

Chairman of the Crow Tribe and the three judges of the

Crow Tribal Court. The Crow respondents specifically

alleged that the Federal District Court “is without juris-

diction over the Crow Tribal Council or Court and their

respective members,” Tribe’s 9th Cir. Excerpt of Record

28, and argued to the Court of Appeals that this suit is

barred by the sovereign immunity of the Crow Tribe, Crow

$ The Crow Tribe’s Constitution (See Appendix B to the

Crow Tribe’s Ninth Circuit Brief) establishes the Crow Tribal

Council ‘to represent, act and speak for the Crow Tribe in any

and all tribal matters .. .”” The Council consists of all duly en-

rolled, adult members of the Crow Tribe.

Tribe’s Ninth Cireuit Brief at 5-9. See Pet. App. 7a n.44

No federal law authorizes this action against the Crow

Tribe or its entities or officials, nor is there lawful con-

sent. Hence, the action against the Tribe, the Tribal Coun-

cil, the Tribal Court, and the tribal officials must be dis-

missed.

Under the rule of Ex Parte Young, 209 U.S. 123

(1907), sovereign immunity does not preclude suits against

officials who are alleged to have acted beyond the scope

of their authority or unconstitutionally.6 This Court has

‘ The sequence of events in the District Court did not

provide an opportunity to address the sovereign immunity is-

sue. The case was filed on November 3, 1982 and a temporary

restraining order was issued on the same day. A hearing on

the plaintiff's motion for a preliminary injunction originally

was scheduled for November 15, 1982, but later was postponed

until December 14. The Court issued a permanent injunction

on December 29, 1982, followed by its Memorandum Opinion

on January 26, 1983. Plaintiffs Sage and Not Afraid filed their

notice of appeal on January 28, 1983. See J.A. xiii-xvii; Pet.

App. 16a-17a.

On January 14, 1983, the Crow Tribe and the tribal defend-

ants filed a motion to reconsider the Court’s December 29,

1982 Order in which they alleged that the District Court lacked

jurisdiction over the Crow Tribal Council, the Crow Tribal

Court and their respective members. In that same document,

the Crow defendants asked leave to file a Memorandum ad-

dressing these issues after the issuance of the forthcoming

Opinion of the Court to which reference was made in the

December 29, 1982 Injunction. Tribe’s Ex. Record 28. But the

opportunity to consider those matters was lost once Sage’s

notice of appeal was filed two days after the issuance of the

District Court’s January 26, 1983 Memorandum Opinion.

s Of course, under Ex Parte Young, such suits are generally

limited only to prospective judicial remedies. Edelman v. Jor-

dan, 415 U.S. 651 (1974).

10

applied the same rule to suits against tribal officials. Santa

Clara Pueblo v. Martinez, supra, 436 U.S. at 59. See also,

Puyallup Tribe v. Washington Dept. of Game, supra, 433

U.S. at 171-172. In the circumstances presented here,

however, that rule does not permit this case to proceed

against any of the tribal respondents officials or entities.

There is no basis to allow suit against the Crow

Tribal Chairman, Donald A. Stewart, Sr., or against two

of the three Judges of the Crow Tribal Court, Glen Bird-

inground and Ira Lefthand, because these three officials

did not participate in any of the actions challenged by

the petitioners. As stated in Ex Parte Young, supra, 209

U.S. at 157:

In making an officer of the state a party defendant

in a lawsuit to enjoin the enforcement of an act al-

leged to be unconstitutional, it 1s plain that such of-

ficer must have some connection with the enforcement

of the act, or else it is merely making him a party

as representative of the state, and thereby attempt-

ing to make the state a party.

The Crow Tribal Council, which, as previously noted

(supra at 8 n.3), consists of all adult members of the Crow

Tribe and represents, acts and speaks for the Crow Tribe,

enacted the ordinance which established the Crow Tribal

Court. J.A. 1-4. The Council’s stated intent was to es-

tablish tribal courts to exercise the jurisdictional author-

ity over the Crow Reservation that has not been fore-

closed by acts of the United States Congress. J.A.2. The

Council has not had anything to do with the lawsuit be-

tween Sage and the School District and has not taken,

or threatened, or been directed to take, any actions which

could appropriately be enjoined. Consequently, the Crow

11

Tribal Council is not a proper party to the suit initiated

by National Farmers and the School District.

The only individually named tribal official who had

anything to do with the actions challenged by the pe-

titioners is the Tribal Court Judge who signed the de-

fault judgment and other orders of the Crow Tribal

Court, Judge Eddie Roundface. See Br. in Opp. App. 1a-

15a. But the doctrine of Ex Parte Young, supra, does not

‘‘inelude the power to restrain a court from acting in any

case brought before it.” Ea Parte Young, supra, 209 U.S.

at 163. As further stated in that landmark decision:

The difference between the power to enjoin an in-

dividual from doing certain things, and the power to

enjoin courts from proceeding in their own way to

exercise jurisdiction, is plain, und no power to do

the latter exists because of a power to do the former.

Ibid. Accord, Donovan v. Dallas, 377 U.S. 408, 412-413

(1964), quoted infra at 15-16. See also, General Atomic Co.

v. Feller, 434 U.S. 12 (1977) (per curiam); Juidice v.

Vail, 430 U.S. 327, 335-336 (1977); Huffman v. Pursue,

Ltd., 420 U.S. 592, 599-604 (1975). Accordingly, sovereign

immunity precludes maintenance of this suit against Judge

Roundface or the Crow Tribal Court.

The Crow Tribe and all of the Crow tribal officials

and entities therefore must be dismissed as parties to this

suit. However, dismissal of the Crow respondents does not

automatically require dismissal of the action because the

Tribal Court plaintiffs, Sage and Not Afraid, were joined

as defendants in the Federal Court suit and are respond-

ents before this Court. The additional questions that

12

must be addressed in this setting are whether the action

challenging the Tribal Court’s jurisdiction against the

two private plaintiffs in the Tribal Court suit states a

claim for relief that can be brought before the Federal

Court and, if so, whether it is appropriate for the Federal

Court to consider that claim under the circumstances of

this case.

The position of the Crow Tribe is that the Federal

District Court clearly erred in entertaining this suit for

the reasons expressed by Judge Wright in his concurring

opinion (Pet. App. lla-13a), as amplified in Part II of

this Brief. This case, with or without the Crow tribal of-

ficials and entities, is not an appropriate vehicle for

addressing the abstract question of whether federal courts

ever can enjoin ongoing tribal court proceedings on the

grounds that the tribal court exceeded the bounds of its

jurisdiction as defined by federal law. If, however, these

federal court jurisdictional issues are decided in favor of

the petitioners, this case should be remanded for con-

sideration of an issue arising from the Tribe’s immunity

from suit which was not addressed by either the District

Court or the Court of Appeals: “whether in equity and

good conscience the [federal] action should proceed among

the [remaining] parties, or should be dismissed” because

the Crow Tribe and the tribal entities and officials are

regarded as indispensible. See F.R.Civ. P. Rule 19(b);

Provident Tradesmens Bank & Trust Co. v. Patterson,

390 U.S. 102 (1968). Cf. Patsy v. Florida Board of

Regents, 457 U.S. 496, 415 n.19 (1982) (leaving the im-

munity issue for consideration on remand).

13

II. The Federal District Court Should Not Have En-

tertained The Suit Challenging The Crow Tribal

Court’s Jurisdiction Over The Tort Suit.°

This case, which has turned into a procedural and

jurisdictional nightmare, began simply enough. A minor

member of the Crow Tribe who lives on the Crow Reser-

vation was hit by a motorcycle on school grounds within

the Crow Indian Reservation. His guardian, who is also

a tribal member living on the Reservation, consulted with

a local lawyer and then did the natural and logical thing:

she filed suit in the local court of general civil jurisdic-

tion, the Crow Tribal Court, see J.A.1, alleging that the

accident was the result of the maintenance of unsafe con-

ditions at the school and inadequate supervision by school

authorities. After that, there was some confusion owing

to the failure of the School Board Chairman to notify

anyone else that he had been served with process or that

the suit had been brought.’ That kind of occurrence is

not infrequent. In due course, the failure to respond to

the Court’s summons resulted in a predictable action, the

entry of a default judgment. The School District and its

insurer received actual notice of the default judgment in

6 In the event that this Court agrees with the argument in

Part | of this Brief and dismisses the Crow Tribe and the tribal

entities and officials owing to their immunity from suit, Parts II

and lil should be deemed to be a Brief by the Crow Tribe as

amicus curiae. The Crow Tribe obviously has a significant in-

terest in the outcome of the issues addressed in Parts II and III

even if it is not a party to the case. Since the Crow Tribal Court

and its judges have not been afforded the opportunity to address

or rule on the issues briefed in Parts II and Ill, the arguments

presented in those sections do not necessarily state the posi-

tion of the tribal court or its judges.

? There is no claim that the School District was not properly

served. ;

14

ample time to avail themselves of the opportunity to set

it aside under the applicable Tribal Court rule. J.A. 17;

Pet. App. 16a. Up to this point, nothing unusual or ex-

traordinary had occurred.

Then, instead of pursuing its readily available Tribal

Court remedies, the defendant in the Tribal Court suit in-

voked the jurisdiction of the Federal District Court claim-

ing, inter alia, that the Crow Tribal Court lacked authority

to resolve the tort claim that arose on the Crow Reserva-

tion and involved a tribal member. That is where the

confusion and the trouble began. Under well-established

principles governing the relationship between courts, the

federal court should not have entertained the suit. Rather,

as all three Ninth Circuit judges agreed, the “proper

forum for [determining the scope of tribal court juris-

tion], at least in the first instance, is not a federal court

but a tribal court.” Pet. App. 7a, lla-12a. Where, as

here, a tribal court has simply asserted jurisdiction over

a suit brought by a tribal member with respect to an acci-

dent that took place within the confines of the Reserva-

tion and the tribal court defendants never even pursued,

no less exhausted, any tribal court remedies, federal court

intervention clearly is inappropriate. Pet. App. lla-l3a

(Wright, J. concurring).

Judge Wright’s concurring opinion properly relies on

the well-established doctrine requiring the pursuit and

exhaustion of remedies available in one forum before in-

voking the jurisdiction of another forum in connection

with the same controversy.

Exhaustion is generally required as a matter of

preventing premature interference with agency pro-

cesses, so that the agency may function efficiently

15

and so that it may have an opportunity to correct its

own errors, to afford the parties and the courts the

benefit of its experience and expertise, and to com-

pile a record which is adequate for judicial review.

Weinberger v. Salfi, 422 U.S. 749, 765 (1975). All of these

considerations counsel strongly against federal courts en-

tertaining suits challenging the jurisdiction of tribal courts

before those issues even have been presented to the tribal

courts. Judge Wright’s conclusion is also bolstered by

fundamental principles governing the relationship between

the courts of different sovereigns operative within the

federal system as well as by the decisions of this Court

giving effect to Congress’ policy of furthering tribal self-

government and protecting the role of tribal courts in re-

solving civil disputes affecting important personal and

property interests of both Indians and non-Indians.

“Karly in the history of our country, a general rule

was established that state and federal courts would not

interfere with or try to restrain each other’s proceedings.

That rule has continued substantially unchanged to this

time.” Donovan v. Dallas, 377 U.S. 408, 412 (1964). The

rationale for that rule was stated in Peck v. Jenness, 7

How. (48 U.S.) 612, 625 (1849), and partially repeated in

Donovan v. Dallas, supra:

. . Where the jurisdiction of a court, and the right

of a plaintiff to prosecute his suit in it, have once

attached, that right cannot be arrested or taken away

by proceedings in another court. These rules have

their foundation, not merely in comity, but in neces-

sity. For if we may enjoin, the other may retort by

injunction, and thus the parties be without remedy;

being liable to a process for contempt in one if they

dare to proceed in the other . . . The fact, therefore,

that an injunction issues only to the parties before

16

the court, and not to the court, is no evasion of the

difficulties that are the necessary result of an at-

tempt to exercise that power over a party who is a

litigant in another and independent forum. See also,

Ex Parte Young, quoted supre at 11.°

Courts are more reluctant to interfere with judicial

proceedings than they are to enjoin the actions of execu-

tive officials. Huffman v. Pursue, Ltd., 420 U.S. 592, 603-

604 (1975). This common sense principle is embodied in

statutory form in 28 U.S.C. 4 2283. See n.8 supra. It has

been applied in a variety of settings to prevent disrup-

tion of civil or criminal justice systems and to avoid the

waste attendant upon duplicative legal proceedings. It

manifests a policy of comity and mutual respect between

the courts of different sovereigns within an overall fed-

eral system. See Webb v. Webb, 451 U.S. 493 (1981) ;

Trainor v. Hernandez, 431 U.S. 434 (1977) ; Juidice v. Vail,

430 U.S. 327 (1972); Huffman v. Pursue Ltd., 420 U.S.

592, 603, 604 (1975); Steffel v. Thompson, 415 U.S. 492,

462 (1974); Younger v. Harris, 401 U.S. 37 (1971). As

stated in Huffman v. Pursue, Ltd., supra, 420 U.S. at 604:

. . interference with a state judicial proceeding pre-

vents the state not only from effectuating its sub-

stantive policies, but also from continuing to perform

the separate function of providing a forum competent

s The one exception to the general rule noted in Donovan

v. Dallas, supra, is for cases in which one court has obtained

custody over property through in rem or quasi in rem proceed-

ings. In that situation, the court with such custody has exclu-

sive jurisdiction to proceed. 377 U.S. at 412. Congress has

also permitted federal courts to enjoin proceedings in state

courts where it is found to be necessary to aid the federal court's

jurisdiction, to protect or effectuate its judgments, or as ex-

pressly authorized by statute. 28 U.S.C. § 2283. None of those

circumstances is present here.

17

to vindicate any constitutional objections interposed

against those policies.

The Court of Appeals therefore was clearly correct

(Pet. App. 5a-7a) in drawing a distinction between fed-

eral court review of challenges to adjudicatory, as opposed

to regulatory, jurisdiction and in applying more restric-

tive standards to suits seeking to enjoin judicial proceed-

ings. See, e.g., Middlesex Ethics Comm. v. Garden State

Bar Ass’n., 457 U.S. 423, 431 (1982) (“Younger v. Harris,

[401 U.S. 37 (1971)], and its progeny espouse a strong

federal policy against federal court interference with pend-

ing state judicial proceedings absent extraordinary circum-

stances”); Atlantic Coast Line R. Co. v. Brotherhood of

Locomotive Engineers, 398 U.S. 281, 297 (1970) (“Any

doubts as to the propriety of a federal injunction against

state court proceedings should be resolved in favor of

permitting the state courts to proceed in an orderly fash-

ion to finally determine the controversy.”)

The institutions of tribal governments, especially tri-

bal courts, are entitled to no less respect. Putting aside

for a moment the limitations on their powers, there is no

doubt that “[t]he cases in this Court have consistently

guarded the authority of Indian governments over their

reservations.” Williams v. Lee, 358 U.S. 217, 223 (1959).

The Court has repeatedly emphasized and given effect to

“Congress’ objective of furthering tribal self-government

. .” New Mexico v. Mescalero Apache Tribe, 103 S.Ct.

2378 (1983). See also, Merrion v. Jicarilla Apache Tribe,

455 U.S. 130, 138 n.5 (1982); White Mountain Apache

Tribe v. Bracker, 448 U.S. 136, 143-144 and n.10 (1980);

Morton v. Mancari, 417 U.S. 535, 551 (1974). In particu-

lar, “[t]ribal courts have repeatedly been recognized as

18

appropriate forums for the exclusive adjudication of dis-

putes affecting important personal and property inter-

ests of both Indians and non-Indians.” Santa Clara Pueblo

v. Martinez, 436 U.S. 49, 65 (1978). The ecucial role of

tribal courts as well as other tribal institutions in resolv-

ing civil disputes arising on Indian reservations has care-

fully and consistently been recognized and protected.

Santa Clara Pueblo v. Martinez, supra, 436 U.S. at 59-60;

Fisher v. District Court, 424 U.S. 382 (1976) (per curiam) ;

United States v. Mazurie, 419 U.S. 544, 548 (1975); Ken-

nerly v. District Court, 400 U.S. 423 (1971) (per curiam)

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

The decision in Santa Clara Pueblo v. Martinez, supra,

epitomizes these principles. There, despite the existence

of a federal statute, the Indian Civil Rights Act of 1968

(ICRA), which was intended in part to strengthen the po-

sition of individuals against tribes, this Court held that the

ICRA does not authorize implied federal court actions

against tribes or tribal officials for alleged violations of

the Act. In reaching that conclusion, this Court relied on

‘‘the congressional goal of protecting tribal self-govern-

ment,” the serious financial burden that defending federal

court suits would impose on “already ‘financially disad-

vantaged’ tribes,” and ‘‘the intrusive effect of federal ju-

9 Prior to the Santa Clara decision, lower federal courts

were reviewing complaints brought against tribal institutions.

To minimize interference with those institutions, those courts

had imposed the requirement that tribal remedies must be

exhausted prior to the filing of the federal suit. See Howlett

v. Salish and Kootenai Tribes, 529 F.2d 233, 239 (9th Cir. 1976);

Means v. Wilson, 522 F.2d 833 (8th 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’Neai v. Cheyenne River Sioux Tribe, 482 F.2d 1140 (8th Cir.

1973). See also, Pet. App. 12a-13a (Wright, J., concurring).

19

dicia! review upon tribal self-government.” 436 U.S. at

59-60, 65, 70. Of particular importance to this case, Santa

Clara bespeaks a policy explicitly recognizing that vital

claims predicated on federal law are properly raised and

finally decided in tribal courts and other tribal institu-

tions. 436 U.S. at 65-66. Cf. Webb v. Webb, 451 US.

493, 499-501 (1981) (Supreme Court will not consider

claim arising under federal law that has not prop-

erly been presented to the state courts.)'® All of these

considerations apply with special force to preclude the

kind of direct interference with an ongoing tribal court

proceeding that is exemplified by the injunction issued

by the Federal District Court against the Crow Tribal

Court and its judges.

This consistent line of decisions in the Court’s Indian

eases leaves no doubt that potential interference by fed-

eral courts in ongoing tribal court proceedings should be

governed by principles no less restrictive than those that

this Court has applied to the relationship between state

and federal courts. Absent extraordinary circumstances,

federal courts should not entertain suits seeking to inter-

fere with or restrain suits pending before tribal courts.

For the reasons so well stated by Judge Wright in his con-

curring opinion, Pet. App. 1la-13a, such interference is

especially unwarranted where the authority of the tribal

courts has been ignored and circumvented, and available

tribal court remedies have not ever been pursued, no less

exhausted.

10 This case, in its current posture, does not present the is-

sue of whether, or to what extent, federal questions decided

by tribal courts may be reviewed by this Court or other federal

courts following the issuance of final tribal court judgments and

the’ exhaustion of tribal court remedies. See Santa Clara, supra,

436 U.S. at 65 n.21.

20

In this case, there are no extraordinary circumstances.

The Crow Tribal Court is the natural and logical forum

for the resolution of claims by members of the Crow Tribe

predicated on events taking place within the Reservation.

This is not an instance, for example, in which a tribal

court assumed jurisdiction over a suit between two non-

members or involving off-reservation conduct. See Pet.

App. 12a (Wright, J. concurring). Nor is there any indi-

cation that the Tribal Court proceeding was motivated by

a desire to harass or was conducted in bad faith or pur-

suant to a facially and obviously invalid tribal law. Cf.

Juidice v. Vail, supra, 430 U.S. at 338. At the time that

the federal court’s jurisdiction was invoked, there was

no emergency or immediate threat of irreparable harm.

No writs of execution had been issued; no property had

been seized; no public sale had been scheduled. The de-

fendant in the Tribal Court suit had not even attempted

to exhaust any of the tribal court remedies that were avail-

able to it and had exhibited complete disregard for a func-

tioning cocrt of a recognized sovereign. Pet. App. 13a

(Wright, J. coneurring). Cf. Cowan v. Rosebud Sioux

Tribe, 404 F. Supp. 1338, 1340, 1341 (D.S.D., 1975). There

was ample opportunity for the tribal court defendant to

move to set aside the default judgment and to present any

federal claims that it might have to the tribal court inelud-

ing contentions that the tribal court lacked jurisdiction or

that its procedures did not satisfy due process require-

ments. Pet. App. 13a (Wright, J. concurring). Cf. Juidice

v. Vail, supra, 430 U.S. at 337 and n.14. Under these con-

ditions, all of which were known to the District Court at

the time its permanent injunction was issued, the federal

court suit should have been dismissed.

This ease does not present an appropriate occasion

for speculating on the precise circumstances under which

21

federal court intervention in tribal court proceedings

might be appropriate. For purposes of this case, it can

be assumed arguendo that federal courts can enjoin parties

to tribal court actions (not tribal courts or tribal judges)

when tribal court remedies have been exhausted and the

requirements of 28 U.S.C. § 2283 are satisfied or

in those cases where the District Court properly finds

that the [tribal] proceeding is motivated by a desire

to harass or is conducted in bad faith, or where the

challenged statute is “flagrantly and patently viola-

tive of express constitutional [or federal statutory]

prohibitions in every clause, sentence and paragraph,

and in whatever manner and against whomever an

effort might be made to apply it.”

Juidice v. Vail, supra, 430 U.S. at 338, quoting Huffman

v. Pursue, Ltd., supra, 420 U.S. at 611. Plainly, this is not

such a case.

III. The Crow Tribal Court Has Jurisdiction Over

The Tort Suit Brought By Tribal Members

Against The School District With Respect To An

Accident Occurring Within The Crow Reserva-

tion.

A. Indian Tribes Retain the Inherent Sovereign

Power To Adjudicate Civil Causes of Action

Arising Within Reservations and Involving

Tribal Members.

Indian tribes are ‘‘unique aggregations possessing

attributes of sovereignty over both their members and

their territory.” New Mexico v. Mescalero Apache Tribe,

103 S.Ct. 2378, 2385 (1983) (Mescalero Apache); United

States v. Mazurie, 419 U.S. 544, 557 (1975). Tribes retain

their inherent tribal powers except to the extent that such

powers have been divested by federal law or by necessary

implication of their dependent status. Mescalero Apache,

supra, 103 8.Ct. at 2385; Merrion v. Jicarilla Apache Tribe,

455 U.S. 130, 137 (1982) (Merrion); Washington v. Con-

federated Tribes of Colville Indian Reservation, 447 U.S.

22

134, 152 (1980) (Colville). These powers include the er-

ercise of civil jurisdiction over the conduct and activities

of non-Indians occurring within bonndaries of Indian

reservations. Mescalero Apache, supra, 103 S.Ct. at 2384-

2387; Merrion, supra, 455 U.S. at 137, 144 and 145 nn.11

and 12 (approving Buster v. Wright, 135 F. 947 (8th Cir.

1905), appeal dismissed, 203 U.S. 599 (1906)); Colville,

supra, 447 U.S. at 152-153. See also, Babbit Ford, Inc. v.

Navajo Indian Tribe, 710 F.2d 587 (9th Cir. 1983), cert.

denied, — U.S. —; Cardin v. De La Cruz, 671 F.2d 363 (9th

Cir. 1982), cert. denied, 459 U.S. 967; Knight v. Shoshone

¢ Arapahoe Tribe, 670 F.2d 900 (10th Cir. 1982); Iron

Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th Cir. 1956).

For tribal powers to be abrogated or diminished by

federal statutes, there must be ‘‘clear indications of legis-

lative intent.’’ Merrion, supra, 455 U.S. at 149, 152. Di-

vestiture of tribal powers by virtue of the tribes’ de-

pendent status occurs

in cases where the exercise of tribal sovereignty would

be inconsistent with the overriding interests of the

National Government, as when the tribes seek to en-

gage in foreign relations, alienate their lands to non-

Indians without federal consent, or prosecute non-

Indians in tribal courts which do not accord the full

protections of the Bil! of Rights. . . [I]t must be

remembered that tribal sovereignty is dependent on,

and subordinated to, only the Federal Government,

not the States.

Colville, supra, 447 U.S. at 153-154. Accord, Mescalero

Apache, supra, 103 S.Ct. at 2385; Merrion, supra, 455 US.

at 147 n.13.

One of the hallmarks of any organized and cohesive

society is a system for resolving disputes in an orderly

and predictable manner. ‘‘ Without such a ‘legal system,’

—_----

23

social organization and cohesion are virtually impos-

sible...” Boddie v. Connecticut, 401 U.S. 371, 374 (1971).

The power to establish a mechanism or system for the

resolution of civil disputes arising within the territory of

a sovereign and affecting its members unquestionably is

an essential and inherent attribute of Indian sovereignty

‘‘because it is a necessary instrument of self-government

and territorial management.” Merrion, supra, 455 U.S.

at 137. See Santa Clara Pueblo v. Martinez, supra, 436

U.S. at 59-60, 65; Williams v. Lee, 358 U.S. 217 (1959)"

There is no serious claim by the petitioners that the

power of the Crow Tribe to establish such a judicial sys-

tem has been abrogated or limited by any Act of Con-

gress." Nor could that power be divested by virtue of

the Tribe’s dependent status. The exercise of judicial

authority by Crow courts over civil causes of action aris-

ing within the Reservation and affecting tribal members

is not in any way inconsistent with the overriding interests

of the federal government. Most such disputes, including

the present one, would not even be cognizable in the fed-

eral courts and there is no federal interest that is the

least bit threatened by the exercise of tribal court juris-

diction in such matters. See Santa Clara Pueblo v. Mar-

tinez, supra, 436 U.S. at 59-60, 65; Williams v. Lee, supra.

u This aspect of tribal sovereignty has been recognized by

all three branches of the federal government. See Brief of Amici

Assiniboine and Sioux Tribes, et al. at 5-14; Brief of United

States at 14-18.

2. The argument of the State of Washington as amicus

curiae (Br. at 8-10) based on Article 1 of the Second Treaty of

Fort Laramie, 15 Stat. 649 (1868), is foreclosed by this Court's

decisions in Kennerly v. District Court, 400 U.S. 423 (1971);

and Williams v. Lee, 358 U.S. 217 (1959). See Brief of United

— at 14 n.5; Brief of Amici Assiniboine and Sioux Tribes,

et al. at 12-13.

24

So even if it is assumed arguendo that the interests of

the State of Montana are implicated by the assumption

of such jurisdiction, that would not make any difference

because “tribal sovereignty is dependent on, and subor-

dinate to, only the Federal Government, not the States.”

Colville, supra, 447 U.S. at 154.

The petitioners’ entire case and the District Court’s

holding are predicated on their reading of Montana v.

United States, 450 U.S. 544 (1981). They have not made

any effort to integrate Montana with prior or subsequent

decisions or with the analytic framework the Court has

employed in other cases addressing tribal sovereignty is-

sues such as Mescalero Apache, Merrion and Colville.”

While there may be some tension between Montana on the

one hand and Mescalero Apache, Merrion and Colville on

the other, see, e.g. Confederated Salish & Kootenai Tribes

v. Namen, 665 F.2d 951, 963 (9th Cir. 1982), cert. denied,

459 U.S. 977, a careful analysis of Montana reveals that

it is predicated on the absence of a nexus between the

conduct of non-Indians hunting or fishing on non-Indian

owned lands within the reservation and any significant In-

dian interest. This point is stressed several times through-

out the opinion. See 450 U.S. at 558 n.6, 564 and n.13, 566

and n.16. Montana also expressly stated that tribes have

13 Their approach is exemplified by the District Court’s de-

cision stating that Williams v. Lee, 358 U.S. 217 (1959), is re-

garded as “old law,” presumably because it was thought to be

rendered obsolete by Montana. Pet. App. 23a-24a. But Williams

was cited three times in Montana itself, 450 U.S. at 564, 565,

566, without any hint that it was being overruled sub silentio.

It has been cited and followed repeatedly in this Court’s deci-

sion, most recently in Three Affiliated Tribes v. Wold Engineer-

ing, 104 S.Ct. 2267 (1984). See also, e.g., White Mountain

Apache Tribe v. Bracker, 448 U.S. 136, 141 n.9, 142 (1980).

25

inherent power “to exercise civil authority over the con-

duct of non-Indians on fee lands within its reservation

when that conduct threatens or has some direct effect

on the political integrity, the economic security, or the

health and welfare of the tribe.” 450 U.S. at 566.

Properly understood, Montana stands for the propo-

sition that there must be some relationship, connection, or

nexus between the reservation-based activities of non-In-

dians and a significant Indian interest in order for those

non-Indian activities to be subject to tribal jurisdiction.

In the vernacular of Williams v. Lee, supra, 358 U.S. at

219-220, Montana fits into the category of cases “where es-

sential tribal relations were not involved and . . . where

the rights of Indians would not be jeopardized, [and there-

fore] the state action did not infringe on the right of res-

ervation Indians to make their own laws and be ruled by

them.” See also, Colville, supra, 447 U.S. at 152-53 (‘‘In-

cluded in this [retained] tribal [sovereign] 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.”) Indeed, that is pre-

cisely how Montana was construed and limited by a unani-

mous Court in Mescalero Apache, supra, 103 S.Ct. at 2384

and n.12. Mescalero Apache also expressly reaffirmed

the Colvil’e holding that ‘‘‘tribes retain any aspect of

their sovereignty not inconsistent with the overriding in-

terests of the National Government.’” 103 S.Ct. at 2385.

Viewed in the light shed by the Court’s other Indian

opinions, there is no doubt that Montana fully sup-

ports the jurisdiction of the Crow Tribal Court over res-

ervation-based claims asserted by tribal members. Sage’s

suit most assuredly involves essential tribal interests. Un-

fortunately, accidents occur and a society must devise a

system of resolving the disputes to which they give rise.

26

Such a system is close to, if not at, the core of a society’s

‘‘nolitical integrity.” Montana, supra, 450 U.S. at 566.

See, Santa Clara Pueblo v. Martinez, supra, 436 U.S. at

59-60, 65; Williams v. Lee, supra. As stated in Boddie v.

Connecticut, supra, 401 U.S. at 374:

Perhaps no characteristic of an organized and co-

hesive society is more fundamental than its erection

and enforcement of a system of rules defining the

various rights and duties of its members, enabling

them to govern their affairs and definitely settle their

differences in an orderly predictable manner. . .

[W]ith the ability to seek regularized resolution of

conflicts individuals are capable of independent ac-

tion that enables them to strive for achievement with-

out the anxieties that would beset them in a disorgan-

ized society.

Accord, Nevada v. Ha'l, 440 U.S. 410, 424 (1979) (em-

phasizing a state’s substantial interest in providing full

protection to those who are injured on its highways

through the negligence of both residents and nonresi-

dents); Co'lins, ‘‘Implied Limitations on the Jurisdiction

of Indian Tribes,” 54 Wash. L. Rev. 470, 518 (1979).

In this ease, there are vital ties between essen-

tial tribal interests and the Crow Tribal Court’s jur-

isdiction over Sage’s tort claim. Most importantly, Sage

and his guardian, Not Afraid, are tribal members and the

accident took place within the Crow Tribe’s political

boundaries. Denying the Crow Tribal Court jurisdiction

over matters arising within the Reservation and affecting

its members indisputably “undermine[s] the authority of

the tribal courts ... and hence. . . infringe[s] on the

right of the Indians to govern themselves.” Santa Clara

Pueblo v. Martinez, supra, 436 U.S. at 59, citing and quot-

ing Fisher v. District Court, 424 U.S. 382, 387-388 (1976) ;

and Williams v. Lee, supra, 358 U.S. at 223. See also,

27

McClanahan v. Arizona Tax Comm’n., 411 U.S. 164, 179

(1973)."*

Moreover, the Crow Tribe has an especially signifi-

cant interest in the dispute between Sage and the School

District. Eighty-five percent of the students attending

the Lodge Grass School are Crow. The Lodge Grass

School Board consists of nine members of whom five are

Crow Tribal members. See supra at 1-2. The Tribal

Court complaint alleges that the accident was caused by

the School District’s negligence in maintaining the school

parking lot in an unsafe condition and in not providing

adequate supervision for its students during school hours.

The Tribe surely has an essential interest in the health,

welfare and safety of its children and in the standard of

care exercised by those entrusted with their education.

See 25 U.S.C. §1901(3). See also, infra at 29-30.

To summarize, the Crow Tribal Court has jurisdiction

over Sage’s tort claim because the exercise of such juris-

14 This case would be more difficult if the issue were wheth-

er the exercise of concurrent state court jurisdiction over res-

ervation-based tort claims involving tribal members infringes

on essential tribal interests. See Williams v. Lee, supra (up-

holding exclusive jurisdiction of tribal courts over a reserva-

tion-based contract action brought by a non-indian against

an Indian). See also, Santa Clara Pueblo v. Martinez, supra, 436

U.S. at 59 and n.9 (“subjecting a dispute arising on the reserva-

tion among reservation Indians to a forum other than the one

they have established for themselves . . . may undermine the

authority of the tribal court .. . and hence . . . infringe on the

right of the Indians to govern themselves.”); State ex. rel.

Flammond v. Flammond, — Mont. —, 621 P.2d 471 (1980). The

answer to the question posed by concurrent state court jurisdic-

tion may depend upon whether the Indian party appears volun-

tarily or involuntarily in state court. See Three Affiliated Tribes

v. Wold Engineering, 104 S.Ct. 2267 (1984). That issue is not

presented here where the only question is whether the tribal

court properly can exercise any jurisdiction, be it concurrent

or exclusive, over such suits.

28

diction implicates essential tribal interests and because

authority to adjudicate reservation-based civil disputes

involving tribal members is part of the Crow Tribe’s re-

tained, inherent sovereignty which has not been divested

by any federal law or lost by virtue of the Tribe’s depend-

ent status. We next consider petitioner’s claims that the

Tribal Court lacks jurisdiction over Sage’s suit because

of the nature of the School District and/or the title status

of the school grounds.

B. The Crow Tribal Court is Not Deprived of Its

Jurisdiction by the Nature of the School Dis-

trict or the Title Status of the School Grounds.

There are two predicates underlying the petitioners’

argument, the alleged “non-Indian” nature of the

School District and the fee status of the lands on which

the Lodge Grass School is located. Neither of these fac-

tors should have any bearing on the Tribal Court’s juris-

diction over Sage’s suit. To the extent that it has any

relevance at all, the nature of the School District sup-

ports the Tribal Court’s jurisdiction.

Although the School District is organized pursuant to

State law, it is, in reality, predominantly Crow. As pre-

viously noted, five of the nine members of the elected

school board are members of the Crow Tribe as are 85

percent of the children attending the school. Many of the

teachers and other school employees also are Crow mem-

bers. The extensive links between the School District and

the Crow Tribe differentiate the School District from the

private, individual, non-Indian hunters and fishers in-

volved in the Montana litigation. On a spectrum with In-

dians on one end and non-Indians on the other, the School

District is somewhere in between, a hybrid, but closer to

29 CS

the Indian side. Cf. United States v. Mission Golf Course,

048 F. Supp. 1177, 1181, 1182 (D.S.D. 1982), aff’d 716 F.2d

907 (8th Cir. 1983) cert. denied, — U.S. —.

In similar situations, this Court has looked to the

substance of an organization or entity, not its form, in de-

ciding jurisdictional questions. In Mescalero Apache

Tribe v. Jones, 411 U.S. 145, 157 n.13 (1973), the Court

stated that “the question of tax immunity cannot be made

to turn on the particular form in which the Tribe chooses

to conduct its business.” Illustrating that point, in Ramah

Navajo School Board v. Bureau of Revenue, 458 U.S. 832

_ (1982), the Court as well as the parties treated the Indian

school as a tribal entity even though it was incorporated

under state law. See a’so, Eastern Navajo Industries,

Inc. v. Bureau of Revenue, 552 P.2d 805 (N.M. App. 1976),

cert. denied, 430 U.S. 959 (corporation formed under state

law in which Indians own 51 percent of its stock held to be

an Indian entity for purposes of determining the validity

of a state tax). Similarly, in this case, the most signifi-

cant aspects of the School District for jurisdictional pur-

poses are that it is controlled by Crow Indians, that Crow

Indians constitute the vast majority of the children it edu-

cates, and that the education of Crow children is an ex-

tremely important governmental matter both to the Crow

Tribe and to the federal government. See Ramah Navajo

School Board v. Bureau of Revenue, supra. In these cir-

cumstances, the nominal form of the organization and its

formal designation as ‘‘Indian” or “non-Indian” are im-

material.’

1s This point is underscored in another way by Mescalero

Apache, supra, Ramah Navajo, supra, and White Mountain

(Continued on next page)

30

Moreover, the School District avails itself of signifi-

cant Crow governmental services. When there are dis-

turbances or law enforcement problems at the Lodge Grass

School, the Crow police are called upon to respond. Tire

protection is provided by the Crow Fire Department.

Truancy and delinquency matters are handled by the

Crow Juvenile Court. The School District should not be

allowed to take full advantage of Crow governmental serv-

ices provided by the Tribe or the federal government

while at the same time maintaining an immunity from

Crow jurisdiction. See Merrion, supra, 455 U.S. at 137-

138. (Oil companies held subject to tribal severance tax

because, inter alia, they benefit from ‘“‘the provision of

police protection and other [tribal] governmental serv-

ices, as well as from ‘the advantages of a civilized society’

that are assured by the existence of tribal government.”)

Nor is there any merit to the suggestion that the

School District’s status as an agency of the State deprives

the Crow Tribal Court of jurisdiction over Sage’s suit.

To begin with, any such defense must be raised in the first

instance in the Crow Tribal Court. Sovereign immunity

has never been employed in a way that would permit an

entity claiming that defense to avoid appearing and filing

an answer in the forum in which it is sued. See e.g.,

Nevada v. Hall, 440 U.S. 410 (1979). Second, though the

(Continued from previous page)

Apache Tribe v. Bracker, 448 U.S. 136 (1980). In all three of

those cases, totally non-Indian corporations and individuals

were held to be immune from some forms of state jurisdiction

owing to their relationships with Indians. Similarly, in this

case, the School District’s significant contacts with Crow In-

dians renders it subject to the jurisdiction of the Crow Tribal

Court.

31

School District is a political subdivision of Montana, it is

not entitled to sovereign immunity under the Eleventh

Amendment. Mt. Healthy City School District v. Doyle,

429 U.S. 274, 280 (1977). See also, Mont. Const. Art. Il,

§18; Patsy v. Florida Bd. of Regents, 457 U.S. 496, 519

n.* (1982) (White, J. concurring). Third, even if the

School District wer an arm of the State, it would become

subject to the jurisdiction of another sovereign by conduct-

ing business within the other sovereign’s territory. Nevada

v. Hall, 440 U.S. 410 (1979). States and their agents

should not be treated any differently than Indian tribes

which generally become subject to state jurisdiction when

they venture off their reservations. Mescalero Apache,

supra, 103 8.Ct. at 2387 n.18; Mescalero Apache Tribe v.

Jones, 411 U.S. 145, 148-149 (1973). Reason and logic

dictate that this principle should be reciprocal.

With regard to petitioners’ reliance on its alleged fee

title to the school land,"® it is difficult to understand why

that should be at all relevant in the context of this case.

6 When this case was before the District Court at the pre-

liminary injunction hearing, see supra at 9 n.4, all parties ap-

wey assumed that the Lodge Grass School was located on

ands that were conveyed to the State pursuant to Section 16

of the 1920 Crow Allotment Act, 41 Stat. 756. See, Pet. App.

15a, 19a. It now appears, however, that a fee patent for the

land was originally issued in 1911 and that it was sold to the

School District in 1918. See Brief for Respondent Not Afraid

at — n.1 and Part IIG. That is odd because there may not

have been a legal mechanism for Crow lands to be taken out

of trust and conveyed to non-indians prior to the enactment

of the Crow Allotment Act in 1920.

If, contrary to the Tribe’s position, the title status of the

school grounds is deemed at all relevant to the propriety of

the Crow Tribal Court's jurisdiction over Sage’s tort claim, this

case should be remanded back to the District Court for fur-

ther consideration of the title issue.

32

which does not directly involve property or property

rights. The trust or fee status of property undoubtedly is

significant for jurisdictional purposes when the Indian

title to the land supplies the required nexus between the

Indian interest and the activity that is subject to tribal

jurisdiction. See, e.g., Mescalero Apuche, supra, 103 S.Ct.

at 2384; Merrion, supra, 455 U.S. at 138, 144-148; Cohen’s

Handbook of Federal Indian Law 257 (1982). But why

would it, or should it, make any difference if the Lodge

Grass School were located, for example, on trust land

leased from the Crow Tribe or a Crow tribal member?

See 25 U.S.C. § 415. Unlike the situation in Montana,

where non-Indian hunters and fishers would not have

been able to enter the Reservation to hunt or fish without

the landowners’ permission, nothing in this case would

have been any different if the accident had taken place on

land that happened to be held in trust. Here, the far more

important jurisdictional factors are that the accident oc-

curred on school grounds located within the Crow Tribe’s

political jurisdiction, see Mescalero Apache Tribe v. Jones,

411 U.S. 145 (1973), and that the State of Montana volun-

tarily agreed to permit Crow Indian children ‘‘to attend

the publie schools of [the] state on the same conditions as

the children of white citizens of said state” in return for

which the State received the school land sections within

the Crow Reservation that previously had been owned

by the Crow Tribe. See Section 16 of the 1920 Crow

Allotment Act, 41 Stat. 756. Cf. Montana. supra, 450 U.S.

at 565 (tribes may regulate the activities of nonmembers

who enter into consensual relationships with the tribe or

its members).

Moreover, as this Court noted in Moe v. Confederated

Salish & Kootenai Tribes, 425 U.S. 463, 478 (1976), “Con-

33

gress by its more modern legislation has evinced a clear

intent to eschew any such ‘checkerboard’ approach within

an existing Indian reservation, and our cases have in turn

followed Congress’ lead in this area.” See particularly, 18

U.S.C. §1151 (specifically defining “Indian country as,

inter alia, “all land within the limits of any Indian reser-

vation under the jurisdiction of the United States Gov-

ernment, notwithstanding the issuance of any patent, and,

including rights-of-way running through the reserva-

tion”); DeCoteau v. District County Court, 420 U.S. 425,

427 n.2 (1975). Here, as in Moe, supra, 425 U.S. at 478,

the Court should reject the “impractical pattern of check-

erboard jurisdiction” within Indian reservations that

would be the inevitable consequence of upholding the peti-

tioners’ position.

Ly.

a

CONCLUSION

Th: judgment of the Court of Appeals should be af-

firmed.

Respectfully submitted,

Rosert S. PELcyGcer

Frepericks & PELCYER

Canyon Center, Suite 216

1881 9th Street

Boulder, Colorado 80302

March 1985