Appendix — Maryland Casualty Co. v. Seminole Tribe of Florida, Inc.

APPENDIX A > bee

Constitutional Provisions 7

— Article 1, Section 8, ‘Clause 3. REGULATION OF

COMMERCE. To regulate Commerce with foreign Na-

tions, and among the several States, and with the Indian

Tribes. : ; |

Amendment V. DUE PROCESS OF LAW. * * * nor: -

be deprived of Kite, — or property, without due process

-of law. * * * oe

Statute

95 US. C.A., Section 477. INCORPORATION OF IN-

DIAN TRIBES; CHARTER; RATIFICATION BY ELEC-*

TION. The Secretary of the Interior may, upon petition.

by at least one-third of the adult Indians, issue a charter |

shall not become operative until ratified at a special elec-

tion by a majority vote of the adult Indians living on the ©

reservation. Such charter may convey. to the incorporated -

. tribe the power to purchase, take by gift, or bequest, or

otherwise, own, hold, manage, operate, and dispose of prop-.

erty of every description, real and personal, including the

power: to purchase restricted Indian lands and to issue in

exchange therefor interests in corporate property, and such

. further powers as may be incidental to the conduct of cor- .

- porate business, not inconsistent with law, but.no authority .

shall be granted to sell, mortgage, or lease for a period ex-

“eéeding ten years any of the land included in the limits .

” of the reservation. Any charter so’issued shall not be re- -

voked or. surrendered except by Act of Congress. June 28,

1984, ¢ c.. 576, Section 17, 48 Stat. 988.

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of incorporation to such tribe: provided, That such charter :

wore

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United States Court of Appeals

‘Os tm siPey Cnet

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_ No. 21992

MARYLAND CASUALTY ‘COMPANY,

/ Apreiant,

~ eh, versus

CITIZENS NATIONAL BANK OF WEST HOLLY-

| * WOOD, ET AL, | °~

fee Appellees. — J

A

.

Lar Appeal from: the United States District Court for the

Southern District of Flor

-

Pit (sy (May 13, 1966.)

Before PHILLIPS,* RIVES and COLEMAN, Circuit

J —: a

PHILLIPS, Circuit J udge: "The question here pre

| _ sented is whether the Seminole Tribe of Florida, Inc.,

immune from an ancillary action in garnishment to satisfy

a judgment obtained against it. Seldomridge Construction

Company,? as es i contractor, entered into a written con-.

*Of the Tenth Circuit, sitting by designation. ° ,

« 1. Hereinafter.called the Seminole Tribe. 7 ’

2. Hereinafter ‘called Seldomridge. ; .

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tract with the Seminole. Tribe to construct for the latter —

‘an office building and an arts and crafts center. Pursuant

to the terms of the prime contract, Seldomridge, as prin-

cipa], and Maryland Casualty Company,’ as su entered

into a performance and payment bond with the inole

‘ Tribe, one condition of which was that Seldomridge would

pay for all labor and materials incorporated in the build-

ings. ' a Soe

Article V of the prime “contract, which was incorpo-

rated in the bond, in part provided that “before issuance.

of final certificate, the’ contractor shall submit evidence

satisfactory to the architect that all payrolls, matérial bills

* * * have been paid.” : fa

| ) ;

Unit Structures, Inc.,‘ furnished materials to Seldom-

ridge, which were incorporated in the buildings, of the

” yeasonable value of $14,004.15, for which it had not been |

P

‘tion contract.

paid. The President of Seldomridge represented to’ the

Seminole Tribe that ‘Seldomridge had a damage claim

against Unit Structures that would more than satisfy the |

latter’s claim for materials. Thereafter, on September 22,

1960, Seldomridge/by a written contract, agreed to indem-

nify the Seminole Tribe from any liabilities, loss, damage

or expense which it might suStain ‘by reason of any claim

made by Unit Structures. Thereafter, the Seminole Tribe

paid Seldomridge the final payment due on the ‘construc-

In the original action brought by Unit Structures, it

recovered .a judgment against Maryland for $14,004.15, the

amount due on its claim for materials, plus interest, at-

tarneys’ fees, and.costs, aggregating $19,482.90, and Mary-

% :

3.. Hereinafter called Maryland. “ia

4. Hereinafter called Unit Structures. “" oor ne

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land, as third party plaintiff, recovered’a judgment against

the Seminole Tribe for $17,332.90.°

Prior to the execution of the construction. contract, the

Secretary of the Interior had issued to the Seminole Tribe

_ a charter of incorporation under the provisions of 25 U.S.

C.A: § 477, and at all times here material it was a vieaaed

~ corporate.

“Maryland, after ein jiiigment against the

Seminole Tribe, caused a writ of garnishment to issue and

to be served against the Citizens National Bank of West

' Hollywood,* seeking to recover tribal funds on deposit in

- such bank to satisfy its judgment. )

' At the time the writ was served, all of the funds de-

posited-in the Bank to the credit of the Seminole Tribe

had been deposited by the United States as a part of a re-

volving credit fund for thé Seminole Tribe, under a deposit

agreement that provided:

“The. Seminole Tribe of Florida, Inc. hereby as-

signs, transfers. and pledges the aforesaid deposit or

_ deposits, hereby or hereafter made, to the ‘United

States of America’ as security for the repayment of

any and .all indebtedness for which it may obligate

itself to the United States of America and for the per-

formance of the Corporation’s obligations in connec-

tion with such indebtedness until such time as ion

or deposits are released, as hereafter provid

It further provided that “upon written demand of the

Superintendent of the Seminole Indian Agency the bank”

should “pay over the balance” of the deposit, “or any part

thereot ‘demanded, in accordance wim the demands. %

5. Judgments were cee awarded ierylend against Seldom-

ridge and in favor of the Seminole Tribe against nee

6. Hereinafter called the Bank.

om

2

AS

The United States was not a party to, the action, but on

June 5, 1964, it filed in the action a document entitled, .

“Representation of: Interest of the United States,” in behalf

of itself and the Seminole Tribe, in which it set up that .

the Seminole Tribe received a loan of, $100,000 from,the

United States from the revolving credit fund maintained

.by -the Bureau of Indian Affairs; that the.amount of the’.

loan was deposited in the Bank, pursuant to the terms of the’

deposit agreement, and an assignment | of the deposit to

the United States as-security for the ile ie of the

loan; that ‘the agreement also provided for withdrawal of

the deposit: upon the written demand of the Super-

‘intendent of the Seminole Indian Agency; that on’ May 28,

1964, the Superintendent made a written demand on the.

Bank for the withdrawal of the balance of such deposit;

that the Bank refused to deliver to the Superintendent

the entire balance and withheld a sum from ‘such balance °

to cover the amount of Maryland’s judgment against tad

Seminole Tribe. . .

a The United States asserted in ‘bie document in behalf

of the Seminole Tribe and itself that the funds on ‘deposit

“were not subject to garnishment. -The Seminole Tribe

‘Med a motion to dismiss the garnishment proceeding;”,

“The court held that under Article VI, Sec. 9 of ‘the

Charter, set out infra, the funds were immune from gar-

- nishment and that the United States’ had a lien on the .

deposit, which was prior to the judgment‘ of Maryland, and

dismissed the ancillary” garnishment proceeding with

prejudice. Maryland has appealed. ,

The paramount authority of the federal government

over Indian tribes and Indians is derived from the Con-

stitution, and Congress has the power and the duty to

©

A6

enact eabdetton for their protection as wards of the United

States.” . . .

| From the beginning of 0 our government, Indian nations ¥

or tribes have been regarded as dependent political com-

munities or. nations; and as’ possessing the attributes of

_ sovereignty, except where they have been taken away by

. Congressional action.’ They are quasi-sovereign nations.°

Indian nations, as an “attribute of ‘their quasi-sover-

eignty, are immiune from suit, either in the federal or state

courts, without Congressional authorization.”

(25 US.C.A., §-477, in part here pertinent, provides

“The Secretary of the Interior-may, upon petition

by at least’ one-third of the adult Indians, issue a

charter of incorporation to such tribe: * * *. ‘Such

. Charter may convey .to the incorporated tribe the power .

to purchase, * * * own, hold, manage, operate, and dis-’

pose of property of every “description, real and per-

sonal, * * * and to issue in exchange therefor interests

in corporate property,:and ‘such further powers as may

be incidental to the conduct of corporate business, not

inconsistent with law, laa

7. Williams. v. Lee, 358 U.S. 217, 219, n. 4; Perrin v. United

States, 232 U.S. 478, 482; United States v. Kagama, 118 U.S. 375;

Taylor v. Tayrien, 10 Cir., 51 F.2d 884; 887; Bryan County Okl.

v. United States, 10 Cir., 123 F.2d 782, 785.

8. Choctaw and Chickasaw Nations v. Seitz, 10 Cir., 193 F.2d

456, 458; Cherokee Nation v. Kansas Railway Co., 135 U.S. 641,

653; Native American Church v. Navajo Tribal Council, 10 Cir.,

272 F.2d 13), 133; Iron Crow v. Oglala Gioux Tribe of Pine Ridge

Res., 8 Cir., 231 F.2d 89, 92.

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

309 U.S. 506, 512, 513; Ex parte Reynolds, C.C. Ark., Fed. Cas.

No. 11, 719; Cf. Cherokee Nation v. State of Georgia, 5 Pet. I, 7.

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

supra; Iron Crow v. Oglala Sioux Tribe of Pine Ridge Res.,

supra, p. 94; Cf. Williams v. Lee, supra; Haile v. Saunooke, 4

Cir., 246-F. 2d 293, 297; Colliflower v. Garland, 9 Cir., 342 F.2d

369, 376.

we, Vaid Stee | :

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The Seminole Tribe was incorporated pursuant to that

section. The statute gave no powers to the corporation.

_ It provided that the Secretary of the Interior “may” con-

vey powers to the corporation by the charter; and it is

clear that the powers granted to the corporation were only.

- those which the Secretary of the Interior, by the terms of

the charter, conveyed to them.

The charter, by Article VI thereof, defined the powers

of the corporation. In part here. material, it reads:

“Section 1. This tribal corporation, subject to any

restrictions contained in the Constitution and the laws

of the United States or in the Constitution and Bylaws

of ‘the said tribe,. shall have the following corporate

powers. 7

: — = A

“Sec. 9: To sue or be sued: but the grant or exer-

cise of such power to sue and to be sued shall not be

-- deemed a consent by the said corporation or the United

States to the levy of any: judgment, lien or attachment

upon the property of the Seminole Tribe of Florida,

Inc., other than income or chattels especially pledged

or assigned.”

The waiver of the immunity to being sued was -ex-

| pressly qualified, and excluded from the waiver was the

levy of any judgment, lien or attachment upon the prop-

erty of the Seminole Tribe of Florida.

Counsel for the appellant urges that gpiniitunenk is not

specifically named in the exclusionary clause and, there-

- fore, is not excluded. We think there are two answers to

c that: contention.

‘

First, garnishment is closely akin to attachment... It

_“is directly founded upon the writ.of attachment as by cus-

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tom of London.” Iti is frequently defined as an attachment

of goods, credits or effects belonging to thedefendant or.

judgment debtor-in the hands of a third person.” The ©

courts have characterized it as a species of attachment; -18

and in the nature of.an attachment" or execution. ”

~ But even more persuasive is ‘the fact that the qualify-

.ing clause was written into Section 9 by. the Secretary of

the Interior to protect the property of the Seminole Tribe,

other than income or chattels-especially pledged or as-.

‘signed; and hence it must be liberally construed in favor

*»

of the Seminole Tribe and all doubtful expressions therein

resolved in favor of the Seminole Tribe. a

11. Bouvier’s Law Dictionary, Rawle’ s 3rd Rev., Vol. 1, pp.

1334, 1335.

12. Kénnedy v. Brent, 6 Cra. 187, 10 bs. 106; Beamer Vv.

Winter, 41 Kan. 596, 21 P. 1078; Blaisdell v. Ladd, 14 NUH. 129;.

Berry-Beall Dry Goods Co. v. Adams, 87 Okl. 291, 211 P. 79;

National Bank of Wilmington & Brandywine v. Furtick, 2 Marv.

(Del.) 35, 42 A. 479; 481; Posselius v. First National Bank. 264

Mich. 687, 251 N.W. 429, "430; J. T. Sinclair Co. v. I. T. Becker

‘Coal Co:, 263 Mich. 617, 249 N.W. 13,14.

13. Ex parte Cincinnati, S.&M. Ry. Co., 78 Ala. 258, 259;

Citizens’ National. Bank. of Godley v. Pollard, Tex.Civ.App., 31

S.W.2d 508, 510; Farmers’ National Bank v. Tennison, 90. Okl.

216, -217 P. 182, 183; Public Finance Co. v. Jump, 192 Okl. 368,

136 P.2¢ 706, 710; Allen v. Stracener, 214 Ark. 688,.217 S.W.2d

620, 621; First National Bank of Duncan v. ‘Wallace, 191 Okl. 105,

127 P.2d 156, 158; Posselius v. First National Bank, supra; . See

also, - National Bank of Ab iaccanace & Brandywine v. Furtick,

supra.

14. Newport v. “Semones, 39 wae App. 647, -286 S.W.2d 876,

880; J. T. Sinclair Co. v. I. T. Becker Coal. Co., supra; Coller v.

Sheffield Farms Co., 129 Misc. 600, 223° N.Y.S. 305; 310; Davis

Brothers v. Choctaw O. & G.R. Co., 73 Ark. 120, 8&3 S.w. 318, 319;

Central Trust Co. v. Chattanooga’ ‘R.C.R. Co., 6 Cir., 68 F. 685,

687; See also, Dean v. Opdycke, 151 “Wash. 504, 276 P. 545, 546.

15. Davis Brothers vy. Choctaw O. & G.R: Co., supra; Coller

_v. Sheffield Farms Co., supra.

16. Squiré v. Capoeman, 351 U.S. 1,-6; 7; Haley v. Seaton,

C.A.D.C., 281 F.2d 620, 623; Arenas v. Preston, 9 Cir. 181 F.2d * |

62; United. States v. Oregon Short Line R. Co., 9 Cir., 113 F.2d

212, .214; Big Eagle v. United States, Ct. Cl., 300 F.2d. 765; United

States v. Gilbertson, 7 Cir.,.111 F.2d 978, 980.

» .

AS

‘The fact that the Seminole Tribe was engaged in, an

enterprise private or commercial in character, rather than

i ». governmental, is not material. It is in such enterprises 7

, and transactions that the Indian tribes and the Indians |

- need protection. The history of intercourse between the -

_ Indian tribes. and Indians with whites demonstrates such

need. It is obvious that the President of Seldomridge im-

posed on the Seminole Tribe when he induced it to pay:

Seldomridge the unpaid balance on the construction con-

tract, with Unit Structures’ claim outstanding. To con-

Strue the immunity to suit as not applying to suits on

liabilities arising out of private transactions ‘would defeat

_ the very purpoSe of Congress in not relaxing the immu-

nity, namely, the protection of the interests and property of

the tribes and the individual Indians. The Supreme Court

has not hesitated to hold the immunity applicable-in ac- -

| tions for liabilities arising out of private- transactions.’

_o We conclude the Seminole Tribe was immune from the

garnishment proceeding. It becomes unnecessary to pass

on the claim of the United States to a- prior lien on the

+ deposit. pie

' AFFIRMED.

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

_ Supra; Williams v. Lee, supra. AAs