Opposition Brief — Nevada v. Hicks

Supreme Court, U.S.

FILED

(7

\o/ JUL 12 2000

No. 99-1994

4 __CLERK

In The

Supreme Court of the United States

+

STATE OF NEVADA; WILLIAM MOLINI;

RICH ELLINGTON; MICHAEL SPENCER;

BILL FITZMORRIS,

Petitioners,

FLOYD HICKS; TRIBAL COURT IN AND

FOR THE FALLON PAIUTE-SHOSHONE TRIBES;

JOSEPH VAN WALRAVEN, HON.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF OF RESPONDENTS THE TRIBAL COURT

IN AND FOR THE FALLON PAIUTE-SHOSHONE

TRIBES AND THE HONORABLE JOSEPH VAN

WALRAVEN IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¢

Metopy L. McCoy

Counsel of Record

Native AMERICAN RIGHTS FUND

1506 Broadway

Boulder, Colorado 80302

(303) 447-8760

July 12, 2000

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

QUESTIONS PRESENTED

1. Does an Indian tribal court have jurisdiction

under federal law over civil actions arising on the

trust allotment land of a tribal member and

brought by the tribal member against state offi-

cials in their individual capacities for alleged vio-

lations of federal civil rights and tribal tort law?

2. Assuming that there is tribal jurisdiction, are the

merits of the officials’ claimed federal law affir-

mative defenses of absolute and qualified immu-

nity subject to exhaustion in tribal court?

ii

TABLE OF CONTENTS

Page

TABLE OF AUER ARIEO «5c vccivecessascsnscuyaas iv

STATEMENT OF THE CAGE, 00. erccssecccdszatus es 1

UES Us 0k cons Shc ube se csWanas ee embewiene 6

REASONS THE WRIT SHOULD BE DENIED....... 6

I. THE COURT OF APPEALS CORRECTLY

APPLIED EXISTING FEDERAL LAW WHICH

MAKES CLEAR THAT THERE IS TRIBAL

JURISDICTION IN THIS CASE................ 6

A. At Least Since Montana v. United States, 450

U.S. 544 (1981), This Court Has Held That

Tribes Generally Have Civil Jurisdiction

Over The Conduct Of Non-Indians On

a. Eee ipl RM L Rw or > 6

B. Congress Has Not Excepted The Tribal Juris-

diction At Issue Here From This Presump-

ies COE: DITOR. kc .nkciavidcaaanadens 12

C. It Is Well-Settled That State Sovereign

Immunity From Suit Does Not Operate To

Bar Actions Such As Those In The Instant

Case Which Are Brought Against Officials

Solely In Their Individual Capacities ...... 17

II. ASSUMING ARGUENDO THAT THERE IS

TRIBAL JURISDICTION, THE PROCEDURAL

RULINGS BY THE COURT OF APPEALS

REGARDING ADJUDICATION OF THE AFFIR-

MATIVE DEFENSES ARE CONSISTENT WITH

THIS COURT’S DECISIONS IN THE AREAS OF

JUDICIAL CIVIL PROCEDURE AND THE

TRIBAL EXHAUSTION RULE ................. 22

iii

TABLE OF CONTENTS - Continued

Page

A. It Is Firmly Established That Affirmative

Defenses Are Non-Jurisdictional Issues .... 23

B. To Ensure Uniformity Of Federal Law, Fed-

eral Court Review After Exhaustion In Tribal

Court Of The Section 1983 Affirmative

Defenses Is Appropriate................... 24

C. The Affirmative Defenses Have Not Been

Exhausted In This Case Because The Tribal

Court Has Not Yet Ruled On The Merits Of

UE I hans eed bk ob aS U8 koe Gic vane cece 25

LESSEE TEED LIE RATES Bee 27

iv

TABLE OF AUTHORITIES

Page

CASES

A-1 Contractors v. Strate, 76 F.3d 930 (8th Cir. 1996)

i snc h dc ROKR Geek Reis de 7, 9, 10

Alden v. Maine, 527 U.S. 706 (1999)..............005. 20

Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th

Cir. 1969), cert. denied, 396 U.S. 1003 (1970) ....... 21

Atkinson Trading Co., Inc. v. Shirley, 210 F.3d 1247

CORT Rae I hic oo c¥acncuns ces taken 8, 10, 11, 12, 13

Brendale v. Confederated Tribes and Bands of the

Yakima Indian Nation, 492 U.S. 408 (1989).......... 14

Cass County v. Leech Lake Band of Chippewa Indioxs,

ee See Be Ge Ss bb teas hv eke havi cack ntecus 14

City of Timberlake v. Cheyenne River Sioux Tribe, 10

F.3d 554 (10th Cir. 1993), cert. denied, 512 U.S.

SE CE oda Kicehe ee ueeewek bat ecaeeeerse cea ons 25

County of Lewis v. Allen, 163 F.3d 509 (9th Cir.

Soe Ge SGD es psu see ekets beds eduaneciees ima

Crawford-El v. Britton, 523 U.S. 574 (1998) ........... 24

Duro v. Reina, 495 U.S. 676 (1990).............-.208- 17

El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473

EE ia aoc ees Cuan e0d pwke ps anaubinn nis celal ber 8, 15

Ford Motor Co. v. Department of Treasury, 323 U.S.

ss Kei R sc cenkc kar ladescoucseehieexihes 18, 21

Gomez v. Toledo, 446 U.S. 635 (1980).............. 16, 23

Hafer v. Melo, 502 U.S. 21 (1991)......... 18, 19, 21, 23

Harlow v. Fitzgerald, 457 U.S. 800 (1982) .. 19, 20, 23, 24

Vv

TABLE OF AUTHORITIES - Continued

Page

Hicks ex rel. Feiock v. Feiock, 485 U.S. 624 C3908). e333 25

Howlett v. Rose, 496 U.S. 356 CROONER oa Ve veers edaus 16

Hunter v. Bryant, 502 U.S. 224 (1991)................ 24

Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9

POONER 5 550th denna nue cauneaeiceeteL. bk 25

Jefferson County v. Acker, 527 U.S. 423 (1999)......... 23

Johnson v. Fankell, 520 U.S. 911 1g SPR rere i 19

Kennerly v. District Court, 400 U.S. 423 2. g | Ser 13

Kentucky v. Graham, 473 U.S. 159 (RPOe + asseccts. 20

Malley v. Briggs, 475 U.S. 335 (1986).............. 20, 23

Martinez v. California, 444 U.S. 277 2. Eipishaiemeptteas: 16

McClanahan v. Arizona Tax Commission, 411 U‘S.

FU ERP OES teas Had s Heide eae boweaaceaSe kids cake 7

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982). .14, 16

Mitchell v. Forsyth, 472 U.S. 511 FROWOD 05s susanoas ccs 24

Mitchum v. Foster, 407 U.S. 225 CUPID ie secbath Choe 16

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759

TSPPE so eas sR MOSS SS cok AE bakloteuaas eve 16

Montana v. United States, 450 U.S. 544 (1981) .... passim

National Farmers Union Insurance Cos. v. Crow Tribe,

S73 i. DOP 6a kis SE 45; 17, 16,:3

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324

PIN 46s va cen vaahheeekawiea lies Momitercns vik 8, 10

vi

TABLE OF AUTHORITIES - Continued

Page

Oklahoma Tax Comm'n v. Citizen Band Potawatomi

Badin Tribe, 406 US. SOS CRA: a vein ois co sagan cede 19

Oklahoma Tax Comm'n v. Sac and Fox Nation, 508

EEF: DOR CG x ise Bs vn sc eee Saks COR 7

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

CROP cbc cdudvh chante ava den ntndisontpeenees tee 17, 18

Oneida Indian Nation v. County of Oneida, 414 U.S.

PE REN kak eG ak sonic ecn es ck eee owe tee ekes eae 7

Rice o. Rekmer, GOD US. FED CPG oe vcccivsvssasencen 17

Sanders v. Robinson, 864 F.2d 630 (9th Cir. 1988),

cert. dented, 400 433. THIG-GIGORD 3 <n s4anes Crosbie 25

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ..7, 15

Siegert v. Gilley, 500 U.S. 226 (1991).............005. 24

South Dakota v. Bourland, 508 U.S. 679 (1993)..... 10, 17

Strate v. A-1 Contractors, 520 U.S. 438 (1997)

Re ab cng kx devia ye hee & any eo eae 5, 7, 9, 10, 18

United States v. N.Y. Rayon Importing Co., 329 U.S.

Ee SDs x ch Sencucekpunvaed itavas Some yeexeaaancs 13

United States v. Wheeler, 435 U.S. 313 (1978) ......... 14

Washington v. Confederated Tribes of the Colville

Indian Reservation, 447 U.S. 134 (1980)............. 17

Webster v. Reproductive Health Service, 492 U.S. 490

DE 6b ia sc bs op TR GEAR MERE Fo 44d ea ae thes Kae 18

Will v. Michigan Department of State Police, 491 U.S.

ee re en SE rye rer ee Tr rs 20

Williams v. Lee, 358 U.S. 217 (1959)........... 14, 15, 21

Vii

TABLE OF AUTHORITIES - Continued

Page

Wood v. Strickland, 420 U.S. 308 (1975) .............. 19

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)....... 7

ConsTITUTIONS, STATUTES, AND Court RULES

Sos SOR is Ee OO MW a nian k ce ae ekas ds actieen 7

Act of Apr. 30, 1908, 35 Stat. 70, 85........000c0ccess 1

ag Rg 1, GENER ame aie Sar een ic an ae a th rena 7

Ee SG SE Chin tive css on be Oka week bax bane keke 13

ERIS 5 Ginicnrn: 5 Shines sad Ueehinas fuasde cis eea 13

pg a Pre nrrre Teer bert ee ee 15

Pe Ge Ee ies s xd obaysuucckad see euds x passim

ETS oa oa oan PERN ATT i4 aehidbeeccaae 13

EXECUTIVE MATERIALS

U.S. Department of the Interior, Bureau of Indian

Affairs, Office of Trust Responsibilities, Annual

Report of Indian Lands (Sept. 30, 1985).............. 1

Si

STATEMENT OF THE CASE

Floyd Hicks is an enrolled member of the Fallon

Paiute-Shoshone Tribe. The Tribe is a federally recognized

Indian tribe that exercises its sovereignty according to a

federally approved Constitution. The Tribe has about 918

members. The Tribe’s Reservation, located in western

central Nevada, consists of about 8,000 acres. At least

since the Reservation was established, this land has been

held continually by the federal government in trust for

the Tribe and for individual tribal members. See Act of

Apr. 30, 1908, 35 Stat. 70, 85; see alsc U.S. Department of

the Interior, Bureau of Indian Affairs, Office of Trust

Responsibilities, Annual Report of Indian Lands 23 (Sept.

30, 1985). The Reservation has never been disestablished,

diminished, or opened by act of Congress.

This case arises out of two separate but related inci-

dents which indisputably occurred within the Reserva-

tion on Hicks’ trust allotment. On August 30 1990,

Nevada State officials entered the allotment, conducted a

search, and seized Hicks’ aged, mounted big horn sheep’s

head. Pet. at 3. On June 13, 1991, the Officials again

entered the allotment, searched Hicks’ residence, and

seized another of his aged, mounted big horn sheep’s

heads. Id.

The Officials - Michael Spencer, Rich Ellington, and

Bill Fitzmorris — are or were Game Wardens employed by

the Nevada Department of Wildlife. They were investi-

gating Hicks for an alleged crime under Nevada law

occurring off the Reservation - the unlawfui possession

or killing of a big horn sheep of the California subspecies.

Pet. at 3. Based on information obtained in January 1989

from a “Confidential Informant,” the sheep was allegedly

“freshly killed” in June 1988. Pet. App. at E-1 — E-2.

The first incident began when Spencer executed an

affidavit and applied for a state search warrant. Pet. App.

at E-1 - E-2. A State Court issued the warrant with the

explicit caveat that, “[t]his Court has no jurisdiction on

the Fallon Paiute-Shoshone Indian Reservation and,

before any search is conducted in furtherance hereof, an

approval authorizing same must be obtained from the

Fallon Tribal Court in and for the Fallon Paiute-Shoshone

Tribes.” Pet. App. at G-1.

The Tribal Court approved the warrant with the

express condition that any search be limited “to exterior

premises only and to vehicles thereon.” Pet. App. at G-1.

Accompanied by a tribal police officer, Spencer entered

Hicks’ trust allotment. After a search, Spencer seized

from Hicks’ vehicle a forty year old, mounted sheep’s

head of the Rocky Mountain subspecies. Pet. at 3. The

head was taken off the Reservation and later determined

not to be evidence of any crime. It was eventually

returned to Hicks, but in an allegedly damaged condition.

Id.

Ten months later, the second incident began when

Spencer obtained another state search warrant to investi-

gate Hicks for the same alleged illegal “fresh kill.” Pet.

App. at F-2 -— F-4. With Tribal Court approval of the

warrant and accompanied by tribal police, Spencer,

Ellington, and Fitzmorris entered Hicks’ allotment. Pet.

App. at F-1. A search of Hicks’ residence lead to the

seizure of another of Hicks’ forty year old, mounted

sheep’s head of the Rocky Mountain subspecies. Pet. at 3.

a re

Again, the head was taken off the Reservation and deter-

mined not to be evidence of any crime. This head also

eventually was returned to Hicks, but in an allegedly

damaged condition. Id.

No charges against Hicks were ever brought by the

State of Nevada, and the State has apparently ceased its

investigation of him.

In July 1991, Hicks filed a civil action in Tribal Court

for money damages for injuries allegedly sustained as a

result of the conduct of state and tribal officials on June

12-13, 1991.1 Pet. App. H-1 - H-17. Named as defendants

were, inter alia, William Molini, Director of the Depart-

ment of Wildlife, and Spencer, Ellington, and Fitzmorris.

Id. at H-1. The defendants were named in both their

official and their individual capacities. Id.

In June 1992, Hicks filed a second civil action in

Tribal Court for money damages for injuries allegedly

sustained as a result of the conduct on August 30, 1990 of,

inter alia, Spencer in his official and individual capacity.

See Pet. at 3 n.3.

Both actions alleged causes of action under tribal

common law torts and violations of federal civil rights

remediable pursuant to 42 U.S.C. § 1983. Pet. at 4; Pet.

App. at I-4. On May 5, 1993, the Tribal Court granted the

Officials’ Motion to Quash in these actions on the ground

of ineffective service of process under tribal law. Pet.

App. at L-1 - L-2.

1 All claims by Hicks against the tribal officials ultimately.

were either voluntarily dismissed by Hicks or were resolved by

the Tribal Court in favor of the tribal officials.

a

Cross-appeals followed to the Western Nevada Inter-

Tribal Court of Appeals, of which the Tribe is a member.

On May 13, 1994, a three-judge panel of the Inter-Tribal

Court of Appeals reversed the Tribal Court on the service

of process issue and upheld tribal jurisdiction over the

actions. Pet. App. at C-1 - C-8. The cases were remanded

back to the Tribal Court where they since have been

stayed pending final federal court disposition of the

question of tribal jurisdiction. See Pet. App. at B-4.

The Officials sought declaratory and injunctive relief

in federal district court on the issue of tribal jurisdiction.

Pet. at 4. They did not pursue in federal court their claims

of ineffective service of process. See Pet. App. at A-20 n.3

& B-5 — B-6. In addition to Hicks, the Officials named as

defendants the Tribal Court and the Associate Tribal

Judge. Id. at B-1. Hicks and the Tribe filed answers, with

the Tribe attaching a limited waiver of sovereign immu-

nity from suit. See Pet. App. at A-20 n.2 & B-4. The case

was presented to the district court on cross-motions for

summary judgment.? Id. at B-4. On October 1, 1996, the

Officials’ summary judgment motion was denied and

Hicks’ and the Tribe’s motions were granted. Id. at B-1 -

B-24; Nevada v. Hicks, 944 F.Supp. 1455 (D.Nev. 1996). The

district court upheld tribal jurisdiction both under a pre-

sumption of tribal jurisdiction which, in the court’s view,

had not been defeated in this case, and in the alternative,

2 Before federal district court disposition of the case

occurred, Hicks moved in Tribal Court to drop the State of

Nevada and all state parties in their official capacities as

defendants to his actions there. The Tribal Court granted these

motions also before federal court disposition of the case. See Pet.

App. at A-5 & B-4.

ee

under a presumption against tribal jurisdiction which the

court found had been defeated in this case. Pet. App. at

B-12.

The Officials appealed to the Court of Appeals for

the Ninth Circuit. On May 20, 1997, the three-judge panel

requested supplemental briefing from the parties on the

effect of this Court’s decision in Strate v. A-1 Contractors,

520 U.S. 438 (1997). See Pet. App. at A-6. After oral

argument on October 7, 1997, the three-judge panel with-

drew the case from submission. See id. at A-1. The case

was resubmitted on November 4, 1999, and on November

9, 1999, a majority of the panel affirmed that there is

tribal jurisdiction over Hicks’ claims against the Officials

in their individual capacities. Id. The panel majority

upheld tribal jurisdiction under the presumption of tribal

jurisdiction and the majority’s conclusion that the pre-

sumption had not been defeated in this case. Pet. App. at

A-11 - A-12. Judge Rymer dissented. Id. at A-16 - A-19.

She was of the view that the presumption against tribal

jurisdiction applied to the case, and that the presumption

had not been defeated. Id. at A-17 - A-19. The panel

issued an amended opinion on January 24, 2000, largely

to clarify that the panel majority did not intend to make

any rulings on the merits about the alleged misconduct or

liability of the Officials. Id. at A-1 — A-23; Nevada v. Hicks,

196 F.3d 1020 (9th Cir. 2000). The Officials’ petition for

rehearing was denied and their suggestion for rehearing

en banc was rejected on March 9, 2000. Pet. App. at D-1.

*

INTRODUCTION

Petitioners seek review of the Court of Appeals’ deci-

sion below sustaining the jurisdiction under federal law

of a Tribal Court to hear civil actions arising on the trust

allotment land of a tribal member and brought by the

tribal member against State officials in their individual

capacities for alleged violations of federal civil rights and

tribal tort law. The decision addressed the federal Indian

law jurisdictional issue on the merits. The decision also

held that the Officials’ claimed affirmative defenses of

absolute and qualified immunity were subject to exhaus-

tion in the Tribal Court in the first instance but had not

yet been exhausted in this case. Because the Court of

Appeals fully considered and correctly decided both the

jurisdictional issue and the procedural issue in this case,

there is no need for review by this Court.

S

REASONS THE WRIT SHOULD BE DENIED

I. THE COURT OF APPEALS CORRECTLY APPLIED

EXISTING FEDERAL LAW WHICH MAKES CLEAR

THAT THERE IS TRIBAL JURISDICTION IN THIS

CASE

A. At Least Since Montana v. United States, 450

U.S. 544 (1981), This Court Has Held That

Tribes Generally Have Civil Jurisdiction Over

The Conduct Of Non-Indians On Indian Trust

Land

It is undisputed that in this case the underlying

Tribal Court actions arose within an Indian reservation on

the trust allotment of a tribal member. Such land is Indian

trust land “controlled by a tribe.” Pet. at 24: see also 18

U.S.C. § 1151(c) (defining Indian trust allotments as

Indian country); Oklahoma Tax Comm'n v. Sac and Fox

Nation, 508 U.S. 114 (1993) (holding that trust allotments

are Indian country). Indian trust lands are geographic

territories and sovereign jurisdictions separate from the

States. See, e.g., Oneida Indian Nation v. County of Oneida,

414 U.S. 661, 670-671 (1974), quoting Worcester v. Georgia,

31 U.S. (6 Pet.) 515, 560-561 (1832).3 Thus, “State laws

generally are not applicable to tribal Indians on an Indian

reservation except where Congress has expressly pro-

vided that State laws shall apply.” McClanahan v. Arizona

Tax Comm’‘n, 411 U.S. 164, 170-171 (1973). Along this same

line, unless Congress provides otherwise, “tribes retain

considerable control over nonmember conduct on tribal

land.” Strate v. A-1 Contractors, 520 US. 438, 454 (1997),

citing Montana v. United States, 450 U.S. at 544, 557 (1981).

The Court of Appeals began its analysis of tribal

jurisdiction by noting that “the incidents underlying the

instant case occurred on Indian-owned, Indian-controlled

land, over which the Tribe retained its right to exclude

non-members.” Pet. App. at A-9. Petitioners posit that

this approach is contrary to this Court’s decision in Mon-

tana v. United States. Pet. at 24-26. Petitioners also proffer

a “conflict” between the Court of Appeals’ decision

below on this point and that in A-1 Contractors v. Strate,

> Petitioners’ claim, Pet. at 9, that, to allow the underlying

actions to proceed in Tribal Court would “deeply wound” the

federalism of the Constitution, is incorrect. Tribal sovereignty

pre-dates the Constitution and is recognized in it. Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 56 (1978); U.S. Const. art. I, § 8, cl.

3.

|

76 F.3d 930 (8th Cir. 1996) (en banc), and/or that in Atkin-

son Trading Co., Inc. v. Shirley, 210 F.3d, 1247 (10th Cir.

2000). Both of these arguments are without merit.

In Montana v. United States, this Court upheld tribal

authority to regulate the hunting and fishing activities of

nonmembers on “land belonging to the Tribe or held by

the United States in trust for the Tribe.” 450 U.S. at 557.

The Court simultaneously refused to allow tribal regula-

tion of hunting and fishing by nonmembers on land

owned in fee simple by the nonmembers. Id. at 557-567.

The Court found, in addition to alienation from Indians

by Congress of the land itself, evidence of congressional

intent to divest generally tribal power over nonmembers

on that land. Id. at 557-564; see also Pet. at 24 (conceding

that the ruling against tribal jurisdiction in “Montana .. .

involved reguiation of nonmember activities occurring on

non-tribal land within a reservation.”). In New Mexico v.

Mescalero Apache Tribe, 462 U.S. 324 (1983), the Court held

that tribal hunting and fishing regulatory authority over

nonmembers in that case was exclusive of state authority,

largely because the land there was Indian trust land and

not “non-Indian land.” 462 U.S. at 325-331.

This Court recently has unequivocally affirmed that

land status is a threshold issue for analyzing tribal adju-

dicatory jurisdiction. As with tribal regulatory jurisdic-

tion, a presumption in favor of tribal court jurisdiction

generally applies where actions arise on Indian trust

lana. See, e.g., El Paso Natural Gas Co. v. Neztsosie, 526 U.S.

473, 482 n.4 (1999) (refusing to apply the test for tribal

jurisdiction over nonmember conduct on land alienated

from Indians by Congress to “the events in question here

[which] occurred on tribal lands.”). A presumption

against tribal court jurisdiction generally applies to

actions arising on land that has been alienated from

Indians by Congress. See, e.g., Strate v. A-1 Contractors,

520 U.S. at 456-459. Petitioners try to show “two compet-

ing lines of authority from this Court” on this point, Pet.

at 25, but the Court’s cases are quite consistent with each

other and the decision below fits squarely within them.

Nor is there any conflict within the lower federal

courts on this point. It is true as Petitioners point out, Pet.

at 25, that in A-1 Contractors v. Strate, 76 F.3d 930 (8th Cir.

1996) (en banc), a majority of the Court of Appeals for the

Eighth Circuit was of the view that the presumption

against tribal jurisdiction over nonmembers applied “on

any land within a reservation.” Strate v. A-1 Contractors,

520 U.S. at 448 (emphasis added). When this Court

reviewed that decision however, while it ultimately

affirmed the Court of Appeals’ judgment against tribal

jurisdiction, it also set forth the correct analysis on this point

which reaffirms the importance of land status in analyzing

tribal jurisdiction. Indeed, this Court’s finding against

tribal jurisdiction in Strate v. A-1 Contractors was based

precisely on the Court’s application of the presumption

against tribal jurisdiction which in turn was triggered by

the Court’s conclusion that the land there - a state high-

way maintained pursuant to an easement granted under a

federal right-of-way statute - was “equivalent, for non-

member governance purposes, to alienated, non-Indian

land.” 520 U.S. at 454.

This Court’s decision on this point in Strate replaces

that of the Court of Appeals there. For Petitioners to try

10

to resurrect the Court of Appeals’ decision in Strate in the

name of an inter-circuit conflict is disingenuous.4

Likewise, the decision below does not conflict with

that in Atkinson Trading Co., Inc. v. Shirley, 210 F.3d 1247

(10th Cir. 2000). The issue in Atkinson Trading Co. was

whether a tribe could tax the activities of a nonmember

occurring on land within a reservation but “held in fee

simple” by the nonmember. 210 F.3d at 1249. The Court of

Appeals in Atkinson Trading Co. upheld the tribal tax. Id.

at 1264. In so doing, the Court of Appeals applied the

presumption against tribal jurisdiction, and also found

* As noted by Petitioners, Pet. at 25, a case relied upon by

the majority of the en banc Court of Appeals in A-1 Contractors v.

Strate for its misunderstanding of this Court’s rules regarding

tribal jurisdiction over nonmembers is South Dakota v. Bourland,

508 U.S. 679 (1993). South Dakota v. Bourland involved tribal

regulation of nonmember hunting and fishing on land taken by

the federal government for a flood control project under specific

acts of Congress. 508 U.S. at 683-687. As in Montana v. United

States, this Court in Bourland found that by these acts Congress

had intended to divest the tribe’s power to regulate the

nonmembers on this land. Id. at 688-694.

The Court’s statement in a footnote in Bourland that “after

Montana, tribal sovereignty over nonmembers ‘cannot survive

without express congressional delegation...’ ” is a direct quote

from the portion of Montana dealing with nonmembers on land

owned in fee by the nonmembers. 508 U.S. at 695 n.15. Properly

read, this statement must be limited to those cases where there

has been divestment of tribal powers by Congress such as in the

alienated lands situation. To construe it otherwise would render

the portion of Montana dealing with Indian trust land — where

tribal jurisdiction over nonmembers was upheld

notwithstanding the absence of a congressional delegation of

power - in conflict with Montana itself, as well as with cases

such as New Mexico v. Mesc%:.ro Apache Tribe, 462 U.S. at 330-331.

u

11

that one of the presumption’s exceptions, as set forth in

Montana v. United States, 450 U.S. at 565-566, applied in

that case - the nonmember had entered into a “consen-

sual relationship” with the tribe sufficient to sustain the

tax. 210 F.3d at 1261-1264.

But nothing in Atkinson Trading Co. conflicts with the

Court of Appeals’ application in the instant case of the

presumption in favor of tribal jurisdiction to nonmember

conduct occurring on Indian trust land. Firstly, there was

no issue of tribal jurisdiction over nonmember conduct

on Indian trust land involved in Atkinson Trading Co. The

sole issue there was whether a tribe could tax nonmem-

ber activity on non-Indian fee land. Any statements by

the Court of Appeals in Atkinson Trading Co. about tribal

jurisdiction over nonmembers on trust land are thus not

relevant to the court’s decision there; they are dicta and

do not give rise to a conflict worthy of granting certiorari.

Secondly, the Court of Appeals in Atkinson Trading

Co. expressly stated that “[o]ur position is not that fee

Status is irrelevant.” 210 F.3d at 1258 n.11.

Fee status is largely inconsequential in this case

simply because the Navajo Hotel Occupancy tax

is not a severe imposition upon Appellant's

guests and because the subject matter of the tax

was more a commercial transaction than one

affecting the actual use of Appellant’s land. In

sum, fee status is plainly relevant in applying

the Montana standard and its =xceptions, but it

is not determinative to the extent tha* the anal-

ysis of the Supreme Court turns on that point

alone.

12

Id. This clarifies that the Court of Appeals in Atkinson

Trading Co. was actually indicating that there might be

instances in which a presumption in favor of tribal juris-

diction applies to cases arising on fee land. But that

indication does not cast @>ubt on, let alone conflict with,

the Court of Appeals’ dec,sion in the instant case to apply

that presumption to a case arising on Indian trust land.

| B. Congress Has Not Excepted The Tribal Jurisdic-

tion At Issue Here From This Presumption Of

Jurisdiction

As stated above, actions arising on Indian trust-land

such as the present one trigger a presumption in favor of

tribal court civil jurisdiction. Although Petitioners dis-

agree, see Pet. at 16-17, the Court of Appeals in this case

conducted a thorough examination for action by or intent

of Congress to except the tribal jurisdiction at issue here

from this presumption. Pet. App. at A-8 - A-12. The

Court of Appeals searched carefully for federal statutes,

agreements,° or other evidence of divestiture of or

5 In County of Lewis v. Allen, 163 F.3d 509 (9th Cir. 1998) (en

banc), the Court of Appeals held that the law enforcement

agreement between the tribe and a county in that case was the

equivalent of a congressional diminishment of tribal power

such that the presumption against tribal jurisdiction over

nonmembers set forth in Montana ». United States, 450 U.S. at

554-567, applied to determine tribal jurisdiction in that case. 163

F.3d at 514. Petitioners here question why the Tribal Court's

approval cf State Court search warrants in the instant case does

not likewise trigger the application of the presumption against

tribal jurisdiction. Pet. at 16. To the extent that the decision _

below is in conflict with County of Lewis v. Allen, such an intra-

-—

13

limitations on tribal sovereignty, exclusionary powers,

or landownership control.® Id. Finding no such

circuit conflict generally is not grounds for a grant of certiorari

by this Court. See Sup. Ct. R. 10.

In any event, there is no conflict and Petitioners’ analogy of

the cases is flawed. The agreement in County of Lewis v. Allen

was executed pursuant to a specific act of Congress, known as

Public Law 280. Among other things, Public Law 280 provides

for certain state criminal jurisdiction over Indians within

reservations. See 25 U.S.C. § 1321. As required by Public law 280,

the tribe in County of Lewis v. Allen took legislative action - an

act of the tribal council — to enter into the agreement. This Court

has held that the grant of state authority under Public Law 280

can only be effectuated by following its provisions. Kennerly v.

District Court, 400 U.S. 423 (1971) (actions by tribe and state

inconsistent with Public Law 280 provisions do not vest state

with jurisdiction over Indians in Indian country).

Public Law 280 is not involved in the instant case. Nor has

the Tribe here otherwise taken legislative action regarding the

state’s authority on the Reservation. It has long been established

in Anglo-American law that oniy the legislative branch can

waive a sovereign’s immunity from suit. See, e.g., United States v.

N.Y. Rayon Importing Co., 329 U.S. 654, 660 (1947) (officers

cannot waive sovereign immunity). Similarly, a judicial officer

cannot generally diminish sovereign authority vis-a-vis a

foreign sovereign. That is the prerogative of the legislature, as

Congress recognized in Public Law 280. See 25 U.S.C. § 1326.

© Petitioners allege that the Court of Appeals erroneously

made land status the sole factor in analyzing tribal jurisdiction

over nonmembers. Pet. at 16-17. That allegation is incorrect. The

Court of Appeals properly recognized that the analysis must

include a search for divestment or limitation by Congress,

regardless of whether the land on which the nonmember conduct

occurs is under tribal control or not. Pet. App. at A-8 - A-12; accord

Atkinson Trading Co. v. Shirley, 210 F.3d at 1261.

In fact, where land has been alienated from Indians by

Congress, this Court often concludes that Congress generally

14

congressional action or intent, the Court of Appeals cor-

rectly concluded that “the tribal court has subject matter

jurisdiction over the... [underlying actions.]” Id. at A-12.

See United States v. Wheeler, 435 U.S. 313, 323 (1978) (“until

Congress acts, the tribes retain their existing sovereign

powers.”); Williams v. Lee, 358 U.S. 217, 233 (1959) (“The

cases in this Court have consistently guarded the author-

ity of Indian governments over their reservations. If this

power is to be taken away from them, it is for Congress to

do it.”).7

The underlying actions in this case arise both under

tribal law and under federal law. Petitioners have not

intended to divest or limit tribal jurisdiction over nonmember

conduct on that land. See, e.g., Montana v. United States, 450 U.S.

at 557-564. Correspondingly, where the land remains

unalienated by Congress, the Court recognizes that tribal

sovereignty remains particularly strong. See, e.g., Brendale v.

Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S.

408, 438-444 (1989) (opinion of Stevens, J.) (announcing

judgment of Court upholding tribal authority over “closed”

Indian lands, as distinct from “open,” largely alienated lands). It

is thus significant that Congress has never disestablished,

diminished, or opened this Tribe’s Reservation. Compare Cass

County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998)

(describing the allotment, cession, and public sale of an Indian

reservation’s lands).

? The requirement of congressional divestment also

responds to Petitioners’ point that tribes did not historically

exercise adjudicatory jurisdiction over state officers in their

individual capacities. Pet. at 9-10. As this Court has held, tribes

do not lose their sovereign powers through non-use. See Merrion

v. Jicarilla Apache Tribe, 455 U.S. 130, 148 (1982) (“Without regard

to its source, sovereign power, even when unexercised, is an -

enduring presence that. . . will remain intact unless surrendered

in unmistakable terms.”).

a

15

argued and cannot argue in this case that Congress has

divested tribal court jurisdiction over claims arising

under tribal law. Tribes “have power to make their own

substantive law . . . and to enforce that law in their own

forums.” Santa Clara Pueblo v. Martinez, 436 US. 49, 55-56

(1978), citing, inter alia, Williams v. Lee, 358 US. 217; see

also the Indian Tribal Justice Act of 1993, 25 U.S.C.

§ 3601(5) (“tribal justice systems are an essential part of

tribal governments and serve as important forums for

ensuring public health and safety and the political integ-

rity of tribal governments.”).

Petitioners do argue to this Court that 42 U.S.C.

§ 1983 divests tribal court jurisdiction to adjudicate

claims arising under federal law and remediable by Sec-

tion 1983. Pet. at 11-12. This argument is contrary to this

Court’s very recent pronouncement that, unless Congress

provides otherwise, “tribal courts, like state courts, can

and do decide questions of federal law.” El Paso Natural

Gas Co. v. "Jeztsosie, 526 U.S. at 486 n.7, citing Santa Clara

Pueblo v. Martinez, 436 U.S. at 65 (“tribal courts available

to vindicate federal rights”); see also National Farmers

Union Ins. Cos. v. Crow Tribe, 471 US. 847, 852 (1985)

(tribal courts can address issues such as limitations on

their jurisdiction that arise under and ultimately “must

be answered by reference to federal law.”).

Petitioners show no evidence in 42 U.S.C. § 1983 of

the requisite congressional intent. Compare El Paso Natural

Gas Co. v. Neztsosie, 526 U.S. at 482-487 (construing an

express statutory provision preempting state court juris-

diction over nuclear tort claims as evidence of congres-

sional intent also to preempt tribal court jurisdiction over

such claims). Rather, Petitioners’ theory is simply that

16

“[s]ilence in the congressional debates about tribal court's

[sic] authority . . . can only signify absence of such intent”

to allow tribal jurisdiction. Pet. at 11. This theory cannot

withstand a fundamental principle of federal Indian law:

“Because the Tribe retains all inherent attributes of sover-

eignty that have not been divested by the Federal Gov-

ernment, the proper inference from silence . . . is that the

sovereign power . . . remains intact.” Merrion v. Jicarilla

Apache Tribe, 455 U.S. 130, 148 n.14 (1982); see also Montana

v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985) (“stat-

utes are to be construed liberally in favor of the Indians,

with ambiguous provisions interpreted to their bene-

fit.”).8

§ Furthermore, 42 U.S.C. § 1983 addresses significant

federal policies by 6pening “the federal courts to private

citizens, [and] offering a uniquely federal remedy against

incursions under the claimed authority of state law upon rights

secured by the Constitution and laws of the Nation.” Mitchum v.

Foster, 407 U.S. 225, 239 (1972). This Court has noted the strong

congressional policy of having this federal remedy be enforced

and enforceable in courts of general jurisdiction. See, e.g.,

Martinez v. California, 444 U.S. 277, 283 n.7 (1980) (finding

concurrent state court jurisdiction over Section 1983 suits); see

also Howlett v. Rose, 496 U.S. 356 (1990) (the Supremacy Clause

and Section 1983 preempt state law sovereign immunity

defenses inconsistent with Section 1983). Given its strength and

importance, the pursuit of federal remedies under 42 U.S.C.

§ 1983 in tribal courts is consistent with Congress’ intent in

enacting the law. It thus makes little sense to treat the operation

or construction of 42 U.S.C. § 1983 in tribal courts differently

than those in federal or state courts, as Petitioners suggest. Pet.

at 12. “As remedial legislation, § 1983 is to be construed liberally .

to further its primary purpose.” Gomez v. Toledo, 446 U.S. 635,

638 (1980).

17

C. It Is Well-Settled That State Sovereign Immu-

nity From Suit Does Not Operate To Bar

Actions Such As Those In The Instant Case

Which Are Brought Against Officials a In

Their Individual Capacities

Unable to prove divestment of tribal jurisdiction by

Congress, Petitioners resort to arguing that tribal jurisdic-

tion in this case is “necessarily implicitly divested” by

virtue of the status of the Officials as employees of the

State. Pet. at 4 & 17; see Washington v. Confederated Tribes of

the Colville Indian Reservation, 447 U.S. 134, 152-154 (1980)

(discussing the necessarily implicitly divested theory).

This settled point of law needs no revisiting.

This Court has found implicit divestiture of inher-

ent sovereignty necessary only “where the exercise

of tribal sovereignty would be inconsistent with

the overriding interests of the National Govern-

ment, as when [1] the tribes seek to engage in

foreign relations, [2] alienate their lands to non-

Indians without federal consent, or [3] prosecute

non-Indians in tribal courts which do not accord

the full protections of the Bill of Rights.”

South Dakota v. Bourland, 508 U.S. 679, 699 (1993) (Souter,

J., dissenting); see also Duro v. Reina, 495 U.S. 676 (1990)

(criminal jurisdiction over Indians who are members of

another tribe); Rice v. Rehner, 463 U.S. 713, 726 (1983)

(liquor regulation).

In contrast, with respect to the present case’s area of

tribal court civil jurisdiction, the Court expressly has

rejected the necessarily implicitly divested theory. In

National Farmers Union Ins. Cos. v. Crow Tribe, the Court

was urged to extend to civil cases the rule of Oliphant v.

18

Suquamish Indian Tribe, 435 U.S. 191 (1978), that tribal

criminal powers over non-Indians have necessarily

implicitly divested. The Court refused to do so.

In Oliphant we . . . concluded that federal legis-

lation conferring jurisdiction on the federal

courts to try non-Indians for offenses committed

in Indian Country had implicitly preempted

tribal jurisdiction.

.... For several reasons, however, the reasoning

of Oliphant does not apply to this case.

. . . . [W]e conclude that the answer to the

question whether a tribal court has the power to

exercise civil subject-matter jurisdiction over

non-Indians in a case of this kind is not auto-

matically foreclosed, as an extension of Oliphant

would require.

471 U.S. at 853-855; accord Strate v. A-1 Contractors, 520

U.S. at 449 (tribal court civil jurisdiction over nonmem-

bers is not “categorically restricted.”).

As the Court of Appeals correctly recognized, this

result is not altered where officials are sued, as in this

case, solely in their individual capacities. Pet. App. at

A-12 - A-14.9 The law is clear that “officers sued in their

personal capacity come to court as individuals.” Hafer v.

Melo, 502 U.S. 21, 27 (1991) (suits in federal court under

42 U.S.C. § 1983 for violations of federal rights); Ford

9 While Hicks originally named the State as a party to his

actions in Tribal Court, the Tribal Court has since granted Hicks’

motions to dismiss any and all claims against the State and state

officials in their official capacities. A party’s decision to .

withdraw a claim renders it moot. Webster v. Reproductive Health

Serv., 492 U.S. 490, 512 (1989).

19

Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 462-464 (1945)

(suits in federal court under common law claims); Johnson

v. Fankell, 520 U.S. 911, 914-915 (1997) (suits in state

courts under 42 U.S.C. § 1983); Wood v. Strickland, 420 U.S.

308, 320-321 (1975) (discussing state court development of

qualified and absolute immunity doctrines in suits under

common law); see also Oklahoma Tax Comm'n v. Citizen

Band Potawatomi Indian Tribe, 498 U.S. 505, 514 (1991)

(while sovereign immunity of tribe bars suit against it,

“Iw]e have never held that individual agents or officers

of a tribe are not liable for damages in actions.”). The

Court of Appeals carefully limited its decision below to

applying this universal rule.'®

Petitioners concede “that individual-capacity suits

against state officials . . . [are] not suit(s] against a state.”

Pet. at 10. Despite Petitioners’ vehement argument to the

10 Petitioners erroneously cast the decision as covering

officials sued in their official capacities. Pet. at 7, 12, 16, & 27.

Petitioners’ error stems from their misunderstanding of 42

U.S.C. § 1983 - which provides remedies for suits against

officials in their individual capacities for actions taken under

color of state law. In essence, Petitioners ask this Court to re-

examine its decision in Hafer v. Melo, that “state officers may be

held personally liable for damages under § 1983 based upon

actions taken in their official capacities.” 502 U.S. at 24. As the

Court explained there, “the phrase ‘acting in their official

capacities’ is best understood as a reference to the capacity in

which the state officer is sued, not the capacity in which the

officer inflicts the alleged injury.” Id. at 26. This logic applies to

suits brought under common law, statutes whose rights are

protected by Section 1983, and constitutional provisions. See,

e.g., Harlow v. Fitzgerald, 457 U.S. 800, 802 (1982) (involving non-

Section 1983 actions against officials in their individual

capacities “for damages based upon their official acts.”).

20

contrary, Pet. at 6-10, there is thus no issue on the merits

of state sovereign immunity from suit in this case. The

Eleventh Amendment does not bar “a suit for money

damages . . . against a state officer in his individual

capacity for unconstitutional or wrongful conduct fairly

attributable to the officer himself, so long as the relief is

sought not from the state treasury but from the officer

personally.” Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240,

2267-2268 (1999); see also Will v. Michigan Dep’t of State

Police, 491 U.S. 58, 62-71 (1989) (distinguishing suits

_under 42 U.S.C. § 1983 against states or officers in their

official capacities, which cannot be brought, from suits

against officers in their individual capacities, which can); —

Kentucky v. Graham, 473 U.S. 159, 167-168 (1985) (“unless a

distinct cause of action is asserted against the [govern-

mental] entity itself, the entity is not even a party to a

personal-capacity lawsuit.”).

State sovereign immunity from suit is relevant here

only to the extent that, because the Officials are officers of

the State, they are entitled to assert affirmative defenses

such as absolute and qualified immunity. See Malley v.

Briggs, 475 U.S. 335, 339-340 (1986) (officers sued in indi-

vidual capacities under 42 U.S.C. § 1983 generally enti-

tled to assert qualified immunity and absolute immunity);

Harlow v. Fitzgerald, 457 U.S. 800, 807-808 (1982) (same for

non-Section 1983 individual capacity suits). If they were

merely private parties (or, “run-of-the-mill tort feasors,”

see Pet. at 6), these defenses would not be available to

them. The Court of Appeals’ unequivocal recognition of

their availability eliminates the need for review by this —

Court on the matter.

21

Finally, Petitioners misleadingly assert that the deci-

sion below “diminish{es] state sovereignty.” Pet. at 5; 6-9.

Regarding the claims remediable by 42 U.S.C. § 1983, this

Court already has expressly rejected the argument that

state sovereignty is restricted by 42 U.S.C. § 1983, not-

withstanding the fact that “imposing personal liability on

state officers may hamper their performance of public

duties” Hafer v. Melo, 502 U.S. at 29-31. To the same effect

are the Court’s cases involving individual capacity suits

under common law. E.g., Ford Motor Co. v. Dep’t of Treas-

ury, 323 U.S. at 449-450 (“Where relief is sought under

general law from wrongful acts of state officials, . . . the

citizen is allowed a remedy against the wrongdoer per-

sonally.”).

Moreover, it is fundamental that unless Congress

provides otherwise, which in this case it has not, States

have no authority over Indians on an Indian reservation,

even to enforce state criminal laws against Indians for

alleged crimes occurring off a reservation.

Arizona’s exercise of [its arrest and extradition

laws] would clearly interfere with rights essen-

tial to the Navajo’s self-government . . . This

conclusion does not frustrate the State of Ari-

zona in carrying out [state law]. It simply recog-

nizes that Arizona has no authority, and hence

no duty, to exercise extradition jurisdiction over

Indian residents of the Navajo Reservation.

Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir. 1969),

cert. denied, 396 U.S. 1003 (1970), citing Williams v. Lee, 358

U.S. at 220. The State’s own courts have admitted in this

case that the State has no independent jurisdiction on the

Reservation. Pet. App. at G-1. It thus follows that tribal

22

jurisdiction over the Officials in their individual capaci-

ties is consistent with State sovereignty.

Regarding the federal Indian law jurisdictional ques-

tion in this case, Petitioners have failed to show that the

decision below “expands” or “redefines” tribal jurisdic-

tion in conflict with this Court’s cases. They have also

failed to cite to any on point cases which are good law in

support of their alleged inter-circuit conflict on this issue.

There is thus no justification for review by this Court on

the issue.

II. ASSUMING ARGUENDO THAT THERE IS

TRIBAL JURISDICTION, THE PROCEDURAL

RULINGS BY THE COURT OF APPEALS

REGARDING ADJUDICATION OF THE AFFIR-

MATIVE DEFENSES ARE CONSISTENT WITH

THIS COURT’S DECISIONS IN THE AREAS OF

JUDICIAL CIVIL PROCEDURE AND THE TRIBAL

EXHAUSTION RULE

Petitioners assert that the Court of Appeals erred

when it held that: 1) the merits of the claims of affirma-

tive defenses such as absolute and qualified immunity are

non-jurisdictional issues; 2) affirmative defenses are sub-

ject to exhaustion in Tribal Court in the first instance;

and, 3) these defenses have not yet been exhausted in

Tribal Court in this case. Pet. at 12-14 & 18-24. The Court

of Appeals, however, correctly understood the nature of

the defenses and followed this Court’s precedent in

deciding these procedural matters in this case.

23

A. It Is Firmly Established That Affirmative

Defenses Are Non-Jurisdictional Issues

Officers sued in their individual capacities may

assert absolute or qualified immunity. Hafer v. Melo, 502

U.S. at 28-29; Malley v. Briggs, 475 U.S. at 339-340; Harlow

v. Fitzgerald, 457 U.S. at 807-808. But those assertions are

not jurisdictional, they are personal affirmative defenses.

Hafer v. Melo, 502 U.S. at 28; Harlow v. Fitzgerald, 457 U.S.

at 815 (“Qualified immunity . . . is an affirmative defense

that must be pleaded by a defendant official.”); see also

Jefferson County v. Acker, 527 U.S. 423, 119 S.Ct. 2069, 2083

(1999) (Scalia, J., dissenting) (suggesting that it would be

“an odd result” to subsume the merits of the defense of

qualified immunity within the “threshold jurisdictional

question”); Gomez v. Toledo, 446 U.S. 635, 640 (1980) (while

qualified immunity is an available defense, it is not rele-

vant to the existence of a cause of action).

Petitioners offer no pertinent authority for overturn-

ing this settled law. The cases on which they rely, Pet. at

12-13 & 19-24, were suits against sovereigns or officials in

their official capacities and thus involved issues of sover-

eign immunity from suit. That is not this case. Petitioners’

mere desire, Pet. at 12, that “qualified immunity could

and should be given a jurisdictional import. ...” is not

worthy of this Court’s review.

24

B. To Ensure Uniformity Of Federal Law, Federal

Court Review After Exhaustion In Tribal Court

Of The Section 1983 Affirmative Defenses Is

Appropriate

“(W]e repeatedly have stressed the importance of

resolving immunity questions at the earliest possible

stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227

(1991). Generally, this means before trial and even before

certain pre-trial stages. Mitchell v. Forsyth, 472 U.S. 511,

527-529 (1985) (immunity defenses should be resolved

before trial); Harlow v. Fitzgerald, 457 U.S. at 818 (before

discovery). In any event, “the trial court . . . must exercise |

its discretion so that officials are not subjected to unnec-

essary and burdensome discovery o: trial proceedings.”

Crawford-El v. Britton, 523 U.S. 574, 597-598 (1998).

The decision below is entirely consistent with this

precedent. The Court of Appeals aptly recognized that in

this case, the earliest possible adjudication of the merits

of the affirmative defenses will occur after final disposi-

tion of the jurisdictional issue, assuming that jurisdiction

is upheld. While the Tribal Appellate Court instructed the

Tribal Court to “set a trial date,” Pet. at 18 n.4; Pet. App.

at C-5, the Court of Appeals, Pet. App. at A-12 - A-15,

undoubtedly meant for the Tribal Court to follow this

Court’s cases and engage in the affirmative defense adju-

dication before trial or discovery, to ensure that the Offi-

cials are not subjected to “unwarranted demands

customarily imposed upon those defending a long drawn

out lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232 (1991).

To ensure uniformity, the right to federal court .

review of Tribal Court interpretations of the federal law

25

affirmative defenses is appropriate once tribal remedies

have been exhausted. See National Farmers Union Ins. Cos.

v. Crow Tribe, 471 U.S. at 856 (indicating that, in addition

to federal court review of tribal jurisdictional determina-

tions, federal courts may review the merits of claims in

tribal court); see also Iowa Mut. Ins. Co. v. LaPlante, 480

U.S. 9, 19 (1987) (such review should be deferential, not a

“relitigation” of non-jurisdictional issues “raised . . . and

resolved in the Tribal Courts.”).”?

C. The Affirmative Defenses Have Not Been

Exhausted In This Case Because The Tribal

Court Has Not Yet Ruled on The Merits Of The

Defenses

The Court of Appeals properly ruled that the Tribal

Court should address the merits of the affirmative

11 To the extent that the affirmative defenses to the non-

federal claims are also non-federal in nature, the federal courts

should not disturb Tribal Court interpretations of purely tribal

law. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. at 16 (1987)

(“Adjudication of such matters by any nontribal court also

infringes upon tribal lawmaking authority, because tribal courts

are best qualified to interpret and apply tribal law.”); see also

City of Timberlake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 559

(10th Cir. 1993), cert. denied, 512 U.S. 1236 (1994) (“we defer to

the tribal courts’ interpretation [of tribal law} even though non-

Indians are involved”); Sanders v. Robinson, 864 F.2d 630, 633

(9th Cir. 1988), cert. denied, 490 U.S. 1110 (1989) (where the

highest tribal court has adjudicated an issue of purely tribal law,

“(t]hat court’s interpretation of tribal law is binding on this

court”); accord Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 630 n.3

(1988) (federal courts should defer to decisions on purely state

law made by the highest state court).

26

defenses in the first instance because it correctly recog-

nized that there has been no such ruling yet. Pet. App. at

A-12 - A-15. Petitioners, however, argue that the Tribal

Court reached the merits of the issue, and thus the issue

has been exhausted and is ripe for federal court review.

Pet. at 13 & 18-23. Petitioners’ view is incorrect and the

Court of Appeals’ is correct.12 The Court of Appeals

affirmed the holding of the district court in this case that

the Tribal Court has not ruled on the merits of the affir-

mative defenses. Pet. App. at A-12 - A-13. The district

court in this case was especially unswayed by Petitioners’

argument on this point that they “raised, argued and

briefed [the point] in the tribal court proceedings, [but]

the tribal court failed to adequately address these argu-

ments when they were presented, and [thus] erred as a

matter of law by denying them immunity.” Pet. App. at

B-16. “The tribal court did not hold an evidentiary hear-

ing or make definitive findings of fact or conclusions of

law on the application of the qualified immunity defense

to the facts of this case.” Id. Thus, the Court of Appeals

correctly held that, assuming tribal jurisdiction is upheld,

the affirmative defenses remain to be “considered on the

merits by the tribal court” in the first instance. Pet. App.

at A-13.

«

12 Petitioners also contest the Court of Appeals’ upholding

of the district court’s ruling that the issue of whether Hicks has

properly stated a claim against William Molini, the Director of

the Nevada Department of Wildlife, in his individual capacity,

has not yet been exhausted in Tribal Court. Pet. at 13; Pet. App.

at B-17. However, the Court of Appeals was correct on this issue .

and thus properly affirmed the remand of this issue to the Tribal

Courts. Pet. App. at A-15.

27

CONCLUSION

For the reasons stated above, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

‘Metopy L. McCoy

Counsel of Record

Native AMERICAN RIGHTs FUND

1506 Broadway

Boulder, Colorado 80302

(303) 447-8760

Counsel for Respondents