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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1985
- **Citation:** 469 U.S. 1104

## Text

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No. 84-320 | AB Se.

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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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On Writ of Certiorari To The United States Court
of Appeals For The Ninth Circuit

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BRIEF FOR CROW RESPONDENTS

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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

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MY

In The

Supreme Court of the United States

October Term, 1984

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NATIONAL FARMERS UNION INSURANCE
COMPANIES, et al.,

Petitioners,
Vv.

CROW TRIBE OF INDIANS, et al.,
Respondents.

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On Writ of Certiorari To The United States Court
of Appeals For The Ninth Circuit

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BRIEF FOR CROW RESPONDENTS

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0137%3A17. Public record. Not legal advice.