Evan M.T. Thompson Chad E. Adams BROWNING, KALECZYC, … · 12/16/2015 · Evan M.T. Thompson . Chad E. Adams . BROWNING, KALECZYC, BERRY & HOVEN, P.C. 800 N. Last Chance Gulch Suite

Evan M.T. Thompson Chad E. Adams BROWNING, KALECZYC, BERRY & HOVEN, P.C. 800 N. Last Chance Gulch Suite 101 P.O. Box 1697 Helena, MT 59624 Telephone: (406) 443-6820 Facsimile: (406) 443-6882 [email protected] / [email protected] Attorneys for Chippewa-Cree Housing Authority, Donna S. Hay and Thela Billy

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA

GREAT FALLS GLENN EAGLEMAN, THERESA SMALL, and CELESIA EAGLEMAN,

Plaintiffs, v. ROCKY BOY CHIPPEWA-CREE TRIBAL BUSINESS COMMITTEE or COUNCIL Richard Morsette, Chairman; Chippewa-Cree Tribal Appellate Court, Chief Justice Toriann Donahoe; Chippewa-Cree Housing and Donna S. Hay, in her capacity as Director; Donna S. Hay, individually; Thela Billy, in her capacity as an employee of CCH; Thela Billy, individually; Chippewa-Cree Water Resources Department/Utilities and James Morsette, in his capacity as Director; Chippewa-Cree Public Works Department and Timothy Rosette, Sr., in his capacity as Director; Chippewa-Cree

Case No. 4:14-CV-00073-BMM

DEFENDANTS CHIPPEWA-CREE HOUSING AUTHORITY,

DONNA S. HAY AND THELA BILLY’S

BRIEF IN SUPPORT OF MOTION TO DISMISS

Case 4:14-cv-00073-BMM Document 16 Filed 07/08/15 Page 1 of 39

Health Center and Fawn Tadio, in her capacity as CEO; Una Ford, R.N., in her capacity as an employee of Chippewa-Cree Health Center; Chippewa-Cree Environmental Health Division and Tim Rosette, in his capacity as Division Chief; John Does or entities 1-12, yet to be named,

Defendants.


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TABLE OF CONTENTS Page

TABLE OF CONTENTS …………………………………………………………i TABLE OF AUTHORITIES……………………………………………………..iii INTRODUCTION ………………………………………………………………..1 FACTUAL BACKGROUND …………………………………………………….1 ARGUMENT……………………………………………………………………...4

I. PLAINTIFFS’ ACTION IS TIME BARRED……………………….4

II. PLAINTIFFS’ CLAIMS ARE MOOT ……………………………...5

III. LACHES……………………………………………………………..6

IV. THIS COURT HAS NO BASIS TO ASSUME SUBJECT MATTER JURISDICTION …………………………………………8

a. Tribal Court Has Exclusive Jurisdiction …………………………8

b. Plaintiffs Were Not Denied Due Process ……………………….13

c. Plaintiffs Did Not Exhaust All Available Tribal Remedies …….16

V. CCHA’S SOVEREIGN IMMUNITY DIVESTS THIS COURT OF ANY SUBJECT MATTER JURISDICTION IT ARGUABLY HAS …………………………………………………18

a. Existence of Federal Question Does Not Defeat Sovereign Immunity ………………………………………………………..20


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b. CCHA Enjoys Sovereign Immunity as an Arm of Tribal Government ……………………………………………………..21

c. CCHA Did Not Waive Sovereign Immunity ……………………23

d. “Sue and Be Sued” Clauses Are Insufficient to Waive Tribal Sovereign Immunity ……………………………………24

e. Procuring Insurance or Participating in a Risk Management Pool Cannot Implicitly Waive Sovereign Immunity ……………26

f. Tribal Officials Enjoy Sovereign Immunity …………………….27

CONCLUSION…………………………………………………………………...29 CERTIFICATE OF COMPLIANCE……………………………………………..29 CERTIFICATE OF SERVICE……………………………………………………30 EXHIBITS INDEX ……………………………………………………………….31


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TABLE OF AUTHORITIES

CASES Page

Alkire v Standing Rock Housing Authority, File # COMP 11-087, Memorandum Opinion, Order for Judgment, and Judgment of Dismissal (June 30, 2011) …………………………………………………27 Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006)……………….…..22 Allstate Indem. Co. v. Stump, 191 F.3d 1071 (9th Cir.) ……………………….…11 Alvarez v. Tracy, 773 F.3d 1011 (9th Cir. 2014) >>…………………………16, 17 Amerind Risk Mgt. Corp. v. Malaterre, 633 F.3d 680 (8th Cir. 2011) ………18, 24 Anderson v. Air W., Inc., 542 F.2d 522 (9th Cir. 1976)…………………………....7 Arizona Pub. Serv. Co. v. Aspaas, 77 F.3d 1128 (9th Cir. 1995)…………………12 Atkinson v. Haldane, 569 P.2d 151 (Alaska 1977)……………………………….26 AT & T Corp. v. Coeur d'Alene Tribe, 295 F.3d 899 (9th Cir. 2002)……10, 11, 14 Boozer v. Wilder, 381 F.3d 931 (9th Cir. 2004)………………………………….16 Buchanan v. Sokaogon Chippewa Tribe, 40 F. Supp. 2d 1043 (E.D. Wis. 1999)……………………………………………….………….25 Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006)…………………………9, 10, 12 C & L Enter., Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001) ……………………………………………………….23 Chemehuevi Indian Tribe v. Cal. St. Bd. of Equalization, 757 F.2d 1047 (9th Cir. 1985)……………………………………………………………..18 Couveau v. Am. Airlines, Inc., 218 F.3d 1078 (9th Cir.2000) ……………………..7


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Crow Tribe of Indians v. Racicot, 87 F.3d 1039 (9th Cir. 1996) ……….………..10 Demontiney v. United States, 255 F.3d 801 (9th Cir. 2001) ……………………..19 Dillon v. Yankton Sioux Tribe Housing Authority, 144 F.3d 581 (8th Cir. 1998)…………………………………………………………..22, 24 E.E.O.C. v. Karuk Tribe Hous. Auth., 260 F.3d 1071 (9th Cir. 2001)………..11, 22 In re Eisen, 31 F.3d 1447 (9th Cir. 1994) ………………………………………….7 Enlow v. Moore, 134 F.3d 993 (10th Cir. 1998) ……………………………..…….9 Evergreen Safety Council v. RSA Network Inc., 697 F.3d 1221 (9th Cir. 2012) ………………………………………………………………6 Fisher v. Dist. Court of Sixteenth Judicial Dist. of Montana, in & for Rosebud Cnty., 424 U.S. 382, 96 S. Ct. 943 (1976) ……………...11 Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040 (8th Cir. 2000) …...24, 25 High Country Citizens Alliance v. Clarke, 454 F.3d 1177 (10th Cir.2006) ……...20 Ingrassia v. Chicken Ranch Bingo and Casino, 676 F.Supp.2d 953, (E.D. Cal. 2009) ……………………...18, 19, 22, 23, 27 Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 107 S. Ct. 971 (1987) ……….9, 10, 12 Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894 (9th Cir. 2006)…..4 Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751(1998) ………………………………………………………..23 Koberg v. John Alden Life Ins. Co., No. CV-11-21-BU-RFC, 2011 WL 6122309, at *5 (D. Mont. Dec. 8, 2011) …………………………4 Linneen v. Gila River Indian Comm., 276 F.3d 489 (9th Cir. 2002) ………….22, 27 Makarova v. United States, 201 F.3d 110 (2nd Cir. 2000) ………………………..19


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Miccosukee Tribe of Indians v. Napoleoni, 890 So.2d 1152 (Fla. 1st DCA 2004) ……………………………………………………….26 Miner Elec., Inc. v. Muscogee (Creek) Nation, 505 F.3d 1007 (10th Cir. 2007) ……………………………………………………11, 20, 21 Mitchell v. Forsyth, 472 U.S. 511 (1985) ……………………………………….19 Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245 (1981) ………………….9 Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985)………...10, 12 Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304 (2001) …………………………17 Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21 (1st Cir. 2000) ……………………………………………….24 Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991) …………………………………………………...23, 24 Oregon v. Leg. Services Corp., 552 F.3d 965 (9th Cir. 2009) ……………………19 Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 98 S. Ct. 2396 (1978)…...10 Pearson v. Dennison, 353 F.2d 24 …………………………………………………7 People of State of Cal. ex rel. California Dept. of Fish and Game v. Quechan Tribe of Indians, 595 F.2d 1153 (9th Cir. 1979) ………………...18 Ramey Const. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315, (10th Cir.1982) …………………………………………………………….20 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S. Ct. 1670 (1978)……………………………………………………..8, 9, 11, 12, 18, 24 Seminole Tribe of Florida v. McCor, 903 So.2d 353 (Fla.2d DCA 2005) …….…26 Siegert v. Gilley, 500 U.S. 226 (1991) …………………………………………....19 Smith v. Babbitt, 875 F.Supp. 1353 (D.Minn. 1995) …………………………….18


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Snow v. Quinault Indian Nation, 709 F.2d 1319 (9th Cir.1983) …………………18 St. Marks v. Chippewa–Cree Tribe of Rocky Boy Reservation, Mont., 545 F.2d 1188 (9th Cir.1976) ……………………………………………..16 Stock West Corp. v. Lujan, 982 F.2d 1389 (9th Cir. 1993) ……………………….22 U.S. v. Nordic Village Inc., 503 U.S. 30, 112 S. Ct. 1011 (1992) ………………..24 U.S. Trust Co. of Delaware v. Sun Life Assur. Co. of Canada, No. C12-1283 MJP, 2014 WL 33670, at *2 (W.D. Wash. Jan. 6, 2014) …...4 United States v. Oregon, 657 F.2d 1009 (9th Cir. 1981) …………………………27 Unkeowannulack v. Table Mountain Casino, No. CVF07-1341 AWI DLB, 2007 WL 4210775, at *6 (E.D. Cal. Nov. 28, 2007) ……………………...20 Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980) ……………………………………………………….11 White Mountain Apache Tribe v. Industrial Comm’n of Arix., 696 P.2d 223 (Ariz. Ct. App. (1985) ………………………………………26 OTHER Chippewa-Cree Law and Order Code, Title I, Chapter 2, § 2.1 …………………..9 Chippewa-Cree Law and Order Code, Title I, Chapter 3, § 3.3 …………………21 Chippewa-Cree Law and Order Code, Title I, Chapter 4, § 4.1(1) ……………….5 Tribal Ordinance 3-63 ……………………………………………………21, 23, 25 28 U.S.C. § 1331 …………………………………………………………………20 Fed.R.Civ.P. 12(h)(3)………………………………………………..……………19


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Defendants, Chippewa-Cree Housing Authority, Donna S. Hay and Thela

Billy (collectively hereinafter “CCHA”), submit this Brief in Support of their

Motion to Dismiss.

INTRODUCTION

Plaintiffs improperly request this Court act as general appellate body for the

Chippewa-Cree Appellate Court (“Appellate Court”) and Chippewa-Cree Tribal

Court (“Tribal Court”). Plaintiffs seek a declaration reversing the Appellate

Court’s determination that sovereign immunity bars suit against CCHA and

demand this matter be remanded to Tribal Court for redetermination under various

injunctions they wish this Court to impose. See Second Amended Complaint, Dkt.

No.11, ¶¶ 39-45. This is not a permissible function of the Court.

FACTUAL BACKGROUND

Plaintiffs filed suit in Tribal Court in 2009 alleging damages resulting from

an explosion occurring in April of 2007. See Tribal Court Complaint, ¶ 19

(attached as Exhibit A). Plaintiffs Glenn and Celesia Eagleman are members of

the Chippewa-Cree Tribe (“Tribe”) and Theresa Small, Mr. Eagleman’s niece, is a

Fort Belknap Reservation tribal member, and all Plaintiffs resided on the

Chippewa-Cree Reservation on trust property at the time of the explosion. Ex. A,

¶¶ 2, 67-70. With the Tribal Court Complaint, Plaintiffs voluntarily and expressly

availed themselves of the jurisdiction of the Tribal Court. Ex. A, ¶¶ 66 & 70.


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CCHA moved to dismiss Plaintiffs’ action in Tribal Court because Plaintiffs

failed to file their claim within the applicable one year statute of limitation and

because CCHA enjoyed sovereign immunity. See Motion to Dismiss (May 12,

2009) (attached as Exhibit B). Plaintiffs responded but did not expressly request

discovery to support their erroneous belief sovereign immunity was waived.

Plaintiffs’ Response to CCHA’s Motion to Dismiss (June 4, 2009) (attached as

Exhibit C). While Plaintiffs alluded to discovery they anticipated might establish

waiver of sovereign immunity by the Tribe itself, they did not request discovery or

make similar allusions regarding CCHA’s sovereign immunity. Id., p. 9. Rather,

Plaintiffs’ focus was on the “sue and be sued” clause in the charter documents

establishing CCHA and the erroneous belief CCHA’s procuring insurance was an

implicit waiver of sovereign immunity. Id., pp. 6-11. Plaintiffs did not submit any

discovery requests to CCHA.

The Tribal Court ultimately dismissed Plaintiffs’ claims, holding they were

barred by the applicable one year statute of limitation and CCHA’s sovereign

immunity. See Order Dismissing Case (attached as Exhibit D). Plaintiffs appealed

the Order to the Appellate Court.

For the first time, on appeal, Plaintiffs suggested discovery was needed.

However, Plaintiffs limited the scope of the suggested discovery to establishment


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ordinances of unidentified corporate defendants and proof of insurance. See

Appellant’s Brief in Support of Appeal, (attached as Exhibit E).

On October 7, 2011, the Appellate Court affirmed the Tribal Court’s

dismissal of Plaintiffs’ claims against CCHA. See Opinion (attached as Exhibit F).

However, the Appellate Court reversed the dismissal of Plaintiffs’ claims against

Mike Morsette and remanded to Tribal Court for further proceedings. Id.; see also

Order (Oct. 14, 2011) (attached as Exhibit G). Thus, Plaintiffs were left with a

potential remedy against Mr. Morsette, who did not enjoy sovereign immunity.

Plaintiffs then attempted to seek review of the Appellate Court’s Opinion

from the Chippewa-Cree Business Committee (“Business Committee”). See Letter

from Business Committee to Mark Mackin (Nov. 28, 2011) (attached as Exhibit

H). However, the Business Committee advised Plaintiffs it is a separate branch of

tribal government and could not provide judicial review. Id.

Plaintiffs took no further action until they filed their Complaint in this Court,

approximately three years after the Appellate Court’s Opinion was issued. See

Complaint, Dkt. No. 1. Plaintiffs twice amended their Complaint and did not

complete service until June 2015. See Second Amended Complaint, Dkt. No. 11.1

1 CCHA reserves the right to pursue dismissal, if necessary, on the basis of insufficient service of process as it is unclear whether Plaintiffs timely or adequately served CCHA.

While Plaintiffs allege settlement discussions took place among the parties in

February 2013, CCHA was not involved in those discussions. Id., at ¶ 31.


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On these facts, this Court should dismiss this action because among other

grounds, (1) Plaintiffs’ claims are time barred; (2) the issue of sovereign immunity

is moot; (3) this Court does not have jurisdiction to provide appellate review; and

(4) CCHA enjoys sovereign immunity.

ARGUMENT

I. PLAINTIFFS’ ACTION IS TIME BARRED.

Plaintiffs’ action is barred by the applicable statute of limitation. The

purpose of statutes of limitation is to encourage promptness in the prosecution of

actions; to avoid injustice which results from prosecution of stale claims; and to

protect against prejudice caused by lost evidence, faded memories and

disappearing witnesses. Johnson v. Columbia Properties Anchorage, LP, 437 F.3d

894, 901 (9th Cir. 2006) (citation omitted).

“Declaratory judgment actions borrow their statute of limitations from the

underlying controversy.” U.S. Trust Co. of Delaware v. Sun Life Assur. Co. of

Canada, No. C12-1283 MJP, 2014 WL 33670, at *2 (W.D. Wash. Jan. 6, 2014);

Koberg v. John Alden Life Ins. Co., No. CV-11-21-BU-RFC, 2011 WL 6122309, at

*5 (D. Mont. Dec. 8, 2011) (Statute of limitation for declaratory judgment action is

the same as associated civil claims).

Here, the applicable statute of limitation is one year. Under the Tribe’s

laws, any action against the Tribe or its officers or employees arising from the


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performance of their official duties must be commenced within one year of the date

the cause of action arose.2

The Tribal Court confirmed, and the Appellate Court affirmed, the one year

statute of limitation applied to the underlying action. See Ex. D. The Appellate

Court’s final action in this matter was October 14, 2011. See Exs. F & G.

Plaintiffs did not file their Complaint in this Court until three years later. See

Complaint, Dkt. No. 1. Plaintiffs now, more than eight years after the events

complained of in Tribal Court, improperly seek this Court’s appellate review.

Applying the applicable one year statute of limitation, Plaintiffs’ claims are time

barred.

See Chippewa-Cree Law and Order Code, Title I,

Chapter 4, § 4.1(1) (attached as Exhibit I).

Authorizing Plaintiffs to disregard the applicable statute of limitation would

prejudice CCHA, be a miscarriage of justice, and would frustrate the very policy

statutes of limitation are meant to promote. As Plaintiffs failed to timely file their

Complaint, their action should be dismissed. Failing to comply with statutes of

limitation is the modus operandi of Plaintiffs and they should not be permitted to

pursue excessively stale claims.

II. PLAINTIFFS’ CLAIMS ARE MOOT.

Plaintiffs improperly request this Court act as an appellate body for the

sovereign Tribal Court system. While this is not an authorized procedure, or 2 CCHA does not concede waiver of sovereign immunity by reference to the statute.


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function of this Court, Plaintiffs’ requests are moot because they fail to accept their

claims were dismissed on alternate grounds, for which they do not seek review.

The Tribal Court’s Order Dismissing Case references two grounds for dismissal:

(1) failure to comply with the applicable one year statute of limitation, and (2)

sovereign immunity. See Exs. D & I. The Tribal Court’s decision was upheld on

appeal. See Ex. F.

Plaintiffs do not seek review of the determination their claims were time

barred; but rather, limit their focus to sovereign immunity. Even if this Court were

empowered to entertain Plaintiffs’ request for relief, reversing the Appellate

Court’s decision regarding sovereign immunity and remanding this matter to Tribal

Court for further proceedings would be futile, as Plaintiffs’ claims remain barred

by the applicable statute of limitation. The issue pending before the Court is moot,

as it will not change the result Plaintiffs seek to avoid.

III. LACHES.

Even if Plaintiffs’ claims were not barred by the statute of limitation, the

doctrine of laches should be applied to bar their claims. Laches is an equitable

defense that prevents plaintiffs, who with full knowledge of the facts, acquiesce in

transactions and sleep upon their rights. Evergreen Safety Council v. RSA Network

Inc., 697 F.3d 1221, 1226 (9th Cir. 2012) (citations omitted)). To prove laches, the

defendant must demonstrate both unreasonable delay and prejudice to itself.


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Couveau v. Am. Airlines, Inc., 218 F.3d 1078, 1083 (9th Cir.2000). Prejudice

results from lost, stale, or degraded evidence, where witnesses’ memories have

faded or when witnesses die. Id. Prejudice also occurs when a defendant takes

action or suffers consequences it would not have, had the plaintiff brought suit

promptly. Id. Here, both requirements exist for the application of laches.

Plaintiffs’ claims were dismissed three years before filing their Complaint.

It cannot be said Plaintiffs’ failure to diligently pursue this action for such an

extreme period of time is reasonable, especially since the underlying facts of their

Tribal Court Complaint occurred more than eight years ago. Moreover, CCHA

was free to expect the matter was final given the lapse of time following the

Appellate Court’s Opinion and there being no valid basis for further action in any

jurisdiction.

CCHA will be prejudiced if Plaintiffs are able to resurrect their claims more

than eight years after the underlying events upon which their claims are based.

Where there is unreasonable delay, injury to the defendant is presumed. Anderson

v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976); Pearson v. Dennison, 353 F.2d

24, 28. “[C]ourts presume injury based on ‘the fact that witnesses move away and

their memories fade.’” In re Eisen, 31 F.3d 1447, 1453-54 (9th Cir. 1994) (citation

omitted). Plaintiffs’ claims in the Tribal Court action were based on events which

occurred in April and May of 2007. See Ex. A, ¶ 19. In the greater-than eight year


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period that passed, (1) CCHA employees have moved on, (2) it is doubtful all

witnesses can be located, (3) evidence surrounding the explosion has undoubtedly

been lost and/or degraded as the explosion site has been completely

demolished/cleaned up, and (4) memories of all witnesses have faded. Simply,

Plaintiffs now wish to litigate quintessential stale claims nearly a decade after the

underlying occurrence, to the detriment of CCHA. Moreover, the Tribal Court

determined Plaintiffs’ claims were stale as of the date they filed the Tribal Court

Complaint. See Ex. D. If this Court entertains review, which it is not authorized to

do, CCHA will be exposed to extreme prejudice and will potentially be required to

defend against stale claims with incomplete evidence and/or testimony. Because

there has been unreasonable delay and actual prejudice to CCHA will result, this

Court should dismiss Plaintiffs’ claims.

IV. THIS COURT HAS NO BASIS TO ASSUME SUBJECT MATTER JURISDICTION.

a. Tribal Court Has Exclusive Jurisdiction.

Indian tribes are “distinct, independent political communities, retaining their

original natural rights” in matters of local self-government. Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 55, 98 S. Ct. 1670, 1675 (1978). Tribes have power to

make their own substantive law in internal matters, and to enforce that law in their

own forums. Id. (internal citations omitted). “Tribal courts have repeatedly been

recognized as appropriate forums for the exclusive adjudication of disputes


9

affecting important personal and property interests of both Indians and non-

Indians.” Burrell v. Armijo, 456 F.3d 1159, 1167 (10th Cir. 2006) (citing Santa

Clara Pueblo, 436 U.S. at 65–66) (emphasis added); see also Montana v. United

States, 450 U.S. 544, 566, 101 S.Ct. 1245 (1981) (Determining Indian tribes

possess inherent authority to exercise civil jurisdiction, even over nonmembers);

Enlow v. Moore, 134 F.3d 993, 996 (10th Cir. 1998) (“[C]ivil jurisdiction over

non-Indians on reservation lands ‘presumptively lies in the tribal courts unless

affirmatively limited by a specific treaty provision or federal statute.’”) (citation

omitted). Additionally, the Tribe expressly retained exclusive civil jurisdiction

over actions arising in whole or in part within the exterior boundaries of the

Reservation. See Chippewa-Cree Law and Order Code, Title I, Chapter 2, § 2.1

(attached as Exhibit J).

No general federal statute limits tribal jurisdiction over tribal members, and

federal law acknowledges tribal jurisdiction. See Iowa Mut. Ins. Co. v. LaPlante,

480 U.S. 9, 14, 107 S. Ct. 971, 975 (1987) (“Indian tribes retain ‘attributes of

sovereignty over both their members and their territory…’”) (internal citations

omitted). This Court, as a court of limited jurisdiction, must have some basis to

entertain subject matter jurisdiction over the claims raised by Plaintiffs in the form

of a grant of authority by both constitutional requirements and federal statute. See


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Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S. Ct. 2396, 2403

(1978).

Furthermore, as a general rule, federal courts must recognize and enforce

tribal court judgments under principles of comity. AT & T Corp. v. Coeur d'Alene

Tribe, 295 F.3d 899, 903 (9th Cir. 2002). “Unless the district court finds the tribal

court lacked jurisdiction or withholds comity for some other valid reason, it must

enforce the tribal court judgment without reconsidering issues decided by the tribal

court.” Burrell, 456 F.3d at 1168 (citing AT & T Corp., 295 F.3d at 905); see also

Crow Tribe of Indians v. Racicot, 87 F.3d 1039, 1043-44 (9th Cir. 1996)

(“Unless…the Tribal Court lacked jurisdiction…proper deference to the tribal

court system precludes relitigation of issues raised...and resolved in the Tribal

Courts.”); Iowa Mutual Insurance Company, 480 U.S. at 19 (Federal court’s

exercise of jurisdiction over reservation affairs may impair the authority of tribal

courts). As the Burrell Court stated:

[W]e emphasize that federal courts are not the general appellate body for tribal courts. As the Supreme Court has instructed, the federal policies promoting tribal self-government and self-determination instruct us to provide great deference to tribal court systems, their practices, and procedures. This heed we do not take lightly.

Burrell, 456 F.3d at 1173 (citing Nat’l Farmers Union Ins. Cos. v. Crow Tribe, 471

U.S. 845, 856 (1985)).


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Typically, federal court review is limited to instances where a tribe’s

assumption of subject matter jurisdiction is challenged. Allstate Indem. Co. v.

Stump, 191 F.3d 1071, 1073 (9th Cir.), as amended (Sept. 13, 1999), amended, 197

F.3d 1031 (9th Cir. 1999). Additionally, two circumstances preclude recognition

of Tribal Court judgments: when the tribal court either lacked jurisdiction or

denied the losing party due process of law. AT & T Corp., 295 F.3d at 903.

Tribal court subject matter jurisdiction over tribal members is first and

foremost a matter of internal tribal law. See Fisher v. Dist. Court of Sixteenth

Judicial Dist. of Montana, in & for Rosebud Cnty., 424 U.S. 382, 386, 96 S. Ct.

943, 946 (1976) (Where litigation involves only Indians, courts may not infringe

on right of reservation Indians to make their own laws and be ruled by them);

Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S.

134, 153-54 (1980). Tribal members involved in intratribal disputes are directed to

the remedies available to them in their own tribal courts and from the officials they

have elected. Santa Clara Pueblo, 436 U.S. at 98 S. Ct. 1670; see also E.E.O.C. v.

Karuk Tribe Hous. Auth., 260 F.3d 1071, 1081 (9th Cir. 2001) (Intratribal disputes

should be resolved internally within the tribe); Miner Elec., Inc. v. Muscogee

(Creek) Nation, 505 F.3d 1007, 1012 (10th Cir. 2007) (Review of Tribe’s

determination sovereign immunity barred suit against non-Indians, was only


12

available where non-Indians had been denied any remedy in tribal forum). As the

Santa Clara Pueblo Court stated:

[S]ubject[ing] a dispute arising on the reservation 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.” A fortiori, resolution in a foreign forum of intratribal disputes of a more “public” character…cannot help but unsettle a tribal government's ability to maintain authority.

Santa Clara Pueblo, 436 U.S. at 59-60, 98 S. Ct. at 1677-78 (internal citations

omitted).

Challenge of a tribe’s jurisdiction must be made initially in tribal court,

pursuant to the doctrine requiring exhaustion of tribal court remedies. Iowa Mut.

Ins. Co, 480 U.S. at 16; Nat’l Farmers, 471 U.S. 845. CCHA is unaware of any

authority which would authorize Plaintiffs’ pursuit to have this Court provide

appellate review of the Tribal or Appellate Court and/or provide the injunctive

relief they seek in the form of this Court’s oversight on remand. Additionally,

federal court jurisdiction does not appear to be appropriate unless a tribal court

erroneously determines it has jurisdiction over a matter involving non-Indians.

Arizona Pub. Serv. Co. v. Aspaas, 77 F.3d 1128, 1132 (9th Cir. 1995); Burrell, 456

F.3d at 1168.

Plaintiffs wish this Court to assume subject matter jurisdiction, at least in

part, over their underlying cause(s) action. See Dkt. No. 11. However, Plaintiffs

never challenged Tribal Court jurisdiction. Id. In fact, even now the opposite is


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true in that Plaintiffs seek remand to Tribal Court. Id. Moreover, Plaintiffs

acknowledged Tribal Court is the appropriate jurisdiction and expressly and

voluntarily availed themselves of Tribal jurisdiction. See Ex. A, ¶¶ 66 & 70. For

this Court to assume jurisdiction over their underlying intratribal action would be

wholly inappropriate.

The law supports exclusive tribal court jurisdiction over this intratribal

matter. Plaintiffs chose the tribal forum. This is not a case where they were

dragged into tribal court as unwilling defendants. All Plaintiffs vehemently sought

to avoid dismissal in Tribal Court after CCHA’s sovereign immunity was raised.

See Ex. C. Accordingly, the Tribal Court properly assumed jurisdiction, but later

correctly determined Plaintiffs’ claims were barred by CCHA’s sovereign

immunity and the statute of limitations. It is readily apparent this Court lacks

subject matter jurisdiction and may not reach issues involving the underlying

claims raised in the Tribal Court Complaint.

b. Plaintiffs Were Not Denied Due Process.

Plaintiffs wish this Court to declare their case was erroneously dismissed on

principals of sovereign immunity and enjoin the tribal courts from applying

sovereign immunity on remand. Second Amended Complaint, Dkt. No. 11, ¶¶ 39-

45. It is a ridiculous proposition that tribal sovereigns can be enjoined from

applying sovereign immunity. Moreover, Plaintiffs do not challenge Tribal Court


14

jurisdiction. Rather, they simply take issue with the result obtained in their chosen

and exclusive forum.

Plaintiffs allege denial of due process which they will likely argue provides

basis for review; however, Plaintiffs’ claims on this basis are equally unavailing.

Plaintiffs claim they were denied due process because “request” for discovery to

establish a waiver of sovereign immunity was denied. Even if AT & T Corp., 295

F.3d at 903 (holding denial due process to losing party precludes recognition of

Tribal Court judgments), supra, could be interpreted to provide this Court with

authority to review and remand to Tribal Court, the pleadings from the Tribal and

Appellate Court demonstrate no denial of due process occurred.

While the Tribal Court action was pending, Plaintiffs did not serve discovery

requests to CCHA or expressly request discovery regarding an alleged waiver of

CCHA’s tribal sovereign immunity. See Ex. C. While Plaintiffs’ suggested

discovery may establish a waiver of sovereign immunity by the Tribe itself, they at

no time expressly requested discovery or made similar suggestions regarding

CCHA’s sovereign immunity. Id., p. 9. Rather, Plaintiffs’ focus was on the “sue

and be sued” clause found in the charter documents establishing CCHA and their

misplaced belief procuring insurance implicitly waives sovereign immunity. Id.,

pp. 6-11.


15

For the first time, on appeal, Plaintiffs suggested discovery was needed.

However, Plaintiffs limited the scope of their suggestion to include discovery of

establishment ordinances of unidentified corporate defendants and proof of

insurance. See Ex. E. Of course, formal discovery was unnecessary to obtain

ordinances, which are public documents and as supported below, obtaining

insurance cannot implicitly waive sovereign immunity. After completion of

briefing, and in the face of Plaintiffs’ poorly articulated “request” for discovery,

the Appellate Court properly affirmed dismissal of Plaintiffs’ claims.3

Under these circumstances, it simply cannot be said Plaintiffs were denied

due process. Courts are neither required to entertain novel requests, nor are they

tasked with directing parties towards the efforts necessary to protect their interests

or provide parties with legal advice. Rather, the parties themselves are tasked with

prosecuting and defending claims within the existing confines of law. Where a

party does not adequately take advantage of the devices available to it, thereby

damaging itself, the party’s failure cannot be attributed to the tribunal. Because

Plaintiffs were not denied due process, there is no support for this Court to assume

jurisdiction or deny recognition of the Tribal Court’s dismissal.

See Ex. F.

3 CCHA maintains further discovery could not yield an unequivocal written waiver of sovereign immunity, as none exists.


16

c. Plaintiffs Did Not Exhaust All Available Tribal Remedies.

Exhaustion of all tribal remedies is required before a federal court may

entertain a claim that an Indian tribal court exceeded the lawful limits of its

jurisdiction. Boozer v. Wilder, 381 F.3d 931, 935 (9th Cir. 2004). The rule

requiring exhaustion of tribal remedies is imposed to preserve and strengthen

Native American cultures by insuring tribal institutions are not denied the

opportunity to resolve tribal disputes or make tribal policy. St. Marks v.

Chippewa–Cree Tribe of Rocky Boy Reservation, Mont., 545 F.2d 1188, 1189 (9th

Cir.1976). Furthermore, federal courts’ exercise of jurisdiction over reservation

affairs impairs the authority of tribal courts. Alvarez v. Tracy, 773 F.3d 1011,

1014-15 (9th Cir. 2014) (citation omitted). “As such, [t]he Supreme Court's policy

of nurturing tribal self-government strongly discourages federal courts from

assuming jurisdiction over unexhausted claims.” Id. Thus, “the court is required

to ‘stay its hand’ until [a] party has exhausted all available tribal remedies.” Id.

(emphasis added).

Plaintiffs may have exhausted all avenues in tribal court exclusive to the

issue of CCHA’s sovereign immunity; however, they did not exhaust all available

tribal remedies. While the Appellate Court upheld dismissal of Plaintiffs’ claims

against the defendants who enjoy sovereign immunity, the Appellate Court

remanded Plaintiffs’ case to Tribal Court for further proceedings against Defendant


17

Morsette, who did not enjoy sovereign immunity. Exs. F & G.4

Similarly, Plaintiffs allege because their claims were dismissed, they would

be left without a remedy if this Court denies the relief they seek. This argument is

fallacious because the Appellate Court expressly remanded the matter back to

Tribal Court for further proceedings against Defendant Morsette. See Exs. F & G.

Thus, if Plaintiffs are left without a remedy, it is solely attributable to their failure

to prosecute claims against Mr. Morsette, who was held not to be immune from

suit. As such, Plaintiffs’ assertion they would be left without a remedy if this

Court denies relief is not only misleading, but should not be charged against

CCHA, who has no control over Plaintiffs’ pursuit of claims against other parties.

However, it

appears Plaintiffs abandoned their claims against Mr. Morsette as CCHA is

unaware of any further proceedings taking place on remand. Similar to the Court’s

observation of the plaintiff in Alvarez, supra, had Plaintiffs pursued the full extent

of their tribal remedies, “it is possible that a tribal court would have granted relief,

and we would not be here today.” See Alvarez, 773 F.3d at 1022. On this basis,

Plaintiffs’ action is premature and the Court may not reach their claims until

Plaintiffs have exhausted all available tribal remedies.

4 None of the exceptions to tribal exhaustion requirements are present. See Nevada v. Hicks, 533 U.S. 353, 369, 121 S.Ct. 2304 (2001).


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V. CCHA’S SOVEREIGN IMMUNITY DIVESTS THIS COURT OF ANY SUBJECT MATTER JURISDICTION IT ARGUABLY HAS.

Courts have no discretion about whether to apply the doctrine of sovereign

immunity, for it "involves a right which courts have no choice, in the absence of a

waiver, but to recognize. It is not a remedy . . . , the application of which is within

the discretion of the court." People of State of Cal. ex rel. Cal. Dept. of Fish and

Game v. Quechan Tribe of Indians, 595 F.2d 1153, 1155 (9th Cir. 1979) (emphasis

added).

CCHA is entitled to dismissal because it enjoys tribal sovereign immunity.

Immunity from suit is a fundamental element of sovereignty, whether exercised by

the federal government, states or tribes. Santa Clara Pueblo, 436 U.S. at 58.

Tribal sovereign immunity applies in federal, state and tribal courts. Ingrassia v.

Chicken Ranch Bingo and Casino, 676 F.Supp.2d 953, 957 (E.D. Cal. 2009) (citing

Snow v. Quinault Indian Nation, 709 F.2d 1319, 1321 (9th Cir.1983)).

The issue of sovereign immunity bears directly on whether a court may

assume subject matter jurisdiction. See, e.g., Smith v. Babbitt, 875 F.Supp. 1353,

1366 (D.Minn. 1995). “[S]overeign immunity is a ‘threshold jurisdictional matter’

and a ‘jurisdictional prerequisite.’” Amerind Risk Mgt. Corp. v. Malaterre, 633

F.3d 680, 686 (8th Cir. 2011) cert. denied, 132 S. Ct. 1094, 181 L. Ed. 2d 977

(U.S. 2012). Consequently, the Court “must address [sovereign immunity] first

and resolve it irrespective of the merits of the claim.” Chemehuevi Indian Tribe v.


19

Cal. St. Bd. of Equalization, 757 F.2d 1047, 1051 (9th Cir. 1985), rev’d. on other

grounds, 474 U.S. 9 (1985). The issue of subject matter jurisdiction may be raised

at any stage of a judicial proceeding, even after entry of judgment. Fed.R.Civ.P.

12(h)(3); Oregon v. Leg. Services Corp., 552 F.3d 965, 969 (9th Cir. 2009). Once

a court determines it lacks subject matter jurisdiction, it must dismiss the action.

Id.

“There is a strong presumption against waiver of tribal sovereign immunity.”

Ingrassia, 676 F.Supp.2d at 956 (citing Demontiney v. United States, 255 F.3d 801,

811 (9th Cir. 2001) (emphasis added). If waiver of sovereign immunity is alleged,

the plaintiff bears the burden of demonstrating the alleged waiver. Ingrassia, 676

F. Supp. 2d at 956-957 (citations omitted). Here, Plaintiffs bear the heavy burden

of proving – by a preponderance of the evidence – that jurisdiction in this Court

does in fact exist. See, e.g., Makarova v. United States, 201 F.3d 110, 113 (2nd Cir.

2000).

Sovereign immunity not only prevents a defendant from being subject to

liability, but prevents the defendant from suffering the unwarranted demands

associated with defending a lawsuit. Siegert v. Gilley, 500 U.S. 226, 232 (1991).

“The entitlement is an immunity from suit rather than a mere defense to liability.”

Mitchell v. Forsyth, 472 U.S. 511, 525 (1985) (emphasis added). CCHA’s

sovereign immunity is not a mere affirmative defense. It is an absolute




20

jurisdictional bar. Unless Plaintiffs establish a waiver of sovereign immunity, this

Court is required to dismiss this case.

a. Existence of Federal Question Does Not Defeat Sovereign Immunity.

While CCHA fails to comprehend how a Tribe’s determination it enjoys

sovereign immunity for intratribal matters could possibly present a federal

question, pointing to a federal question alone will not defeat tribal sovereign

immunity. Unkeowannulack v. Table Mountain Casino, No. CVF07-1341 AWI

DLB, 2007 WL 4210775, at *6 (E.D. Cal. Nov. 28, 2007). Federal-question

jurisdiction does not negate an Indian tribe's immunity from suit. Miner Elec., 505

F.3d at 1011. “Indeed, nothing in § 1331 unequivocally abrogates tribal sovereign

immunity.” Id. “’In the context of the United States' sovereign immunity, courts

have held:

[w]hile 28 U.S.C. § 1331 grants the court jurisdiction over all civil actions arising under the Constitution, laws or treaties of the United States, it does not independently waive the Government's sovereign immunity; § 1331 will only confer subject matter jurisdiction where some other statute provides such a waiver.”

Miner Elec., 505 F.3d at 1011 (citing High Country Citizens Alliance v. Clarke,

454 F.3d 1177, 1181 (10th Cir.2006) (quotation omitted), cert. denied, 550 U.S.

929, 127 S.Ct. 2134 (2007)). “Tribal sovereign immunity is deemed to be

coextensive with the sovereign immunity of the United States.” Miner Elec., 505

F.3d at 1011 (citing Ramey Const. Co. v. Apache Tribe of Mescalero Reservation,


21

673 F.2d 315, 319–20 (10th Cir.1982)). “Therefore, in an action against an Indian

tribe…§ 1331 will only confer subject matter jurisdiction where another statute

provides a waiver of tribal sovereign immunity or the tribe unequivocally waives

its immunity.” Miner Elec., 505 F.3d at 1011 (emphasis added).

b. CCHA Enjoys Sovereign Immunity as an Arm of Tribal Government.

This Court may not decide this matter because CCHA is an arm of the

Chippewa-Cree Tribal Government and enjoys immunity from suit. The Tribe has

statutorily preserved its sovereign immunity:

The Tribe shall be immune from suit in any civil action, and its officers and employees immune from suit for any liability arising from the performance of their official duties, except as required by federal law or the Chippewa-Cree Constitution and By-Laws, or as specifically waived by a resolution or ordinance of the Business Committee.

Chippewa-Cree Law and Order Code, Title I, Chapter 3, § 3.3 (attached as Exhibit

K) (emphasis added). The Ordinance establishing CCHA also preserves CCHA’s

sovereign immunity. See Tribal Ordinance 3-63 (attached as Exhibit L). The

Ordinance reads in pertinent part:

The Council hereby gives its irrevocable consent to sue and be sued in its corporate name, upon any contract, claim or obligation arising out of its activities under this ordinance and hereby authorizes the Authority to agree by contract to waive any immunity from suit which it might otherwise have.

See Ex. L, § V(2)(a) (emphasis added).


22

Notably, the Business Committee appoints CCHA board members and has

the power to remove them. See Ex. L, §§ II(a), III(b), IV(1)(a-d). Moreover, the

Tribe officially recognizes CCHA as an arm of the tribal government functioning

on behalf of the Business Committee. See Ex. F, pp. 3-4 (citing Resolution No.

76-96, p. 1-2); Ex. L, §§ I(a-f), II(a-c).

A tribe's sovereign immunity extends both to tribal governing bodies and to

tribal agencies which act as an arm of the tribe. Ingrassia, 676 F. Supp. 2d at 956

(citing Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006)). It is

well established Indian housing authorities, like CCHA, are tribal governmental

entities and agencies immune from suit. See, e.g., E.E.O.C., 260 F.3d at 1080

(“[Tribal housing authorities are] not simply business entit[ies] that happen to be

run by a tribe or its members, but, rather, occup[y] a role quintessentially related to

self-governance.”); Dillon v. Yankton Sioux Tribe Housing Authority, 144 F.3d

581, 583 (8th Cir. 1998) (determining tribal housing authority was a tribal,

governmental agency, rather than a separate corporate entity). An agency or arm

of tribal government enjoys sovereign immunity, and its immunity must be

unequivocally waived if an action is to be maintained. Linneen v. Gila River

Indian Comm., 276 F.3d 489, 492 (9th Cir. 2002); Stock West Corp. v. Lujan, 982

F.2d 1389, 1398 (9th Cir. 1993).


23

There are only two ways CCHA can be divested of its sovereign immunity:

(1) Congress may waive tribal immunity; or (2) CCHA may waive its immunity by

written contract. Ex. L, § V(2)(a); Oklahoma Tax Comm'n v. Citizen Band

Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991). Waiver of tribal sovereign

immunity may not be implied and must be expressed unequivocally. Ingrassia,

676 F. Supp. 2d at 956.

CCHA was expressly established as a government agency and its sovereign

immunity is statutorily preserved. See Ex. L, § V(2)(a). While CCHA is free to

waive its sovereign immunity, it must be done by written contract. Id. This was

never done. Accordingly, dismissal is appropriate because CCHA is a tribal

government agency and is immune from suit absent a clear and unequivocal

waiver.

c. CCHA Did Not Waive Sovereign Immunity.

Tribal Ordinance 3-63 preserves the vital principle that CCHA enjoys

sovereign immunity and provides CCHA may only waive its sovereign immunity

by written instrument. Ex. L, § V(2)(a). The Tribe’s statutory requirement for

waiver of sovereign immunity to be in writing is consistent with United States

Supreme Court interpretation of the sovereign immunity doctrine. C & L Enter.,

Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001);

Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S.


24

751(1998); Santa Clara Pueblo, 436 U.S. at 58. “A waiver of sovereign immunity

may not be implied, but must be unequivocally expressed by either the Tribe or

Congress.” Amerind Risk, 633 F.3d at 685 (citation omitted) (emphasis added);

Santa Clara Pueblo, 436 U.S. at 58. If there is any ambiguity in a tribe’s waiver of

sovereign immunity, courts are required to apply the interpretation which results in

the narrowest waiver of the immunity in favor of the sovereign. U.S. v. Nordic

Village Inc., 503 U.S. 30, 34, 112 S. Ct. 1011, 1014 (1992) (internal citations

omitted).

As no congressional waiver would arguably apply, CCHA can only be

divested of its sovereign immunity if it waives sovereign immunity by written

contract. Ex. L, § V(2)(a); Oklahoma Tax Comm'n, 498 U.S. at 509. No such

instrument exists, and thus, CCHA has not waived its sovereign immunity. As

such, Plaintiffs’ claims against CCHA must be dismissed.

d. “Sue and Be Sued” Clauses Are Insufficient to Waive Tribal Sovereign Immunity.

“Sue and be sued” clauses alone cannot act as an unequivocal waiver of

sovereign immunity. See Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040,

1044 (8th Cir. 2000); Dillon, 144 F.3d at 583-584 (“Sue and be sued” clause in

tribal ordinance did not constitute a waiver of sovereign immunity); Ninigret Dev.

Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207 F.3d 21, 30 (1st Cir.

2000) (Indian tribe's adoption of ordinance authorizing tribal housing authority to


25

decree by contract to waive immunity from suit did not, in and of itself, waive

sovereign immunity; phrase “by contract” would be surplusage if enactment of

ordinance itself served to perfect waiver) (emphasis added); Buchanan v. Sokaogon

Chippewa Tribe, 40 F. Supp. 2d 1043, 1047 (E.D. Wis. 1999). The Hagen Court

interpreted a “sue and be sued” clause nearly identical to the one at issue. Hagen,

205 F.3d at 1044. The Hagen Court properly concluded the language of such “sue

and be sued” clauses, standing alone, do not waive tribal sovereign immunity. Id.

Plaintiffs previously argued the “sue and be sued” clause, standing alone,

effects a waiver of sovereign immunity. However, this theory was rejected by the

Tribal Court and should be rejected here. A plain reading of the statute

demonstrates the “sue and be sued” clause merely provides CCHA with the ability

to waive its sovereign immunity, should it be necessary for conducting business.

Tribal Ordinance 3-63 “authorizes the Authority to agree by contract to waive any

immunity from suit…” Ex. L, § V(2)(a) (emphasis added). This authorization

clearly provides CCHA the power to waive its sovereign immunity and be sued in

its corporate name; but conversely, it also authorizes CCHA to not waive its

sovereign immunity and not be sued. In any event, a “sue and be sued” clause,

standing alone, cannot be deemed an “unequivocal” waiver of CCHA’s sovereign

immunity. As there is no valid basis to find a waiver of CCHA’s sovereign

immunity, dismissal is appropriate and warranted.


26

e. Procuring Insurance or Participating in a Risk Management Pool Cannot Implicitly Waive Sovereign Immunity.

As supported above, it is well settled waiver of sovereign immunity cannot

be implied. Plaintiffs previously suggested CCHA’s participation in a risk

management pool, which is akin to obtaining insurance, constitutes an implicit

waiver of sovereign immunity. The law does not support Plaintiffs’ theory.

The mere purchase of liability insurance does not constitute a waiver,

express or implied, of a tribe’s sovereign immunity protection. See Seminole Tribe

of Fla. v. McCor, 903 So.2d 353, 359 (Fla.2d DCA 2005) (“[T]he purchase of

insurance may simply be a measure to provide protection for the Tribe’s assets

against the possibility that the Tribe’s immunity will be abrogated or ignored.”);

Atkinson v. Haldane, 569 P.2d 151 (Alaska 1977) (The purpose of tribal sovereign

immunity would be defeated if it could be implicitly waived to the extent of

insurance coverage); Miccosukee Tribe of Indians v. Napoleoni, 890 So.2d 1152

(Fla. 1st DCA 2004) (Rejecting argument that tribe's purchase of workers'

compensation insurance is a waiver of tribal immunity); see also White Mountain

Apache Tribe v. Industrial Comm’n of Arix., 696 P.2d 223, 228-29, (Ariz. Ct. App.

(1985) (Authority for Indian tribe to purchase workers' compensation insurance,

under statute providing for expenditure from tribal funds without specific

appropriations by Congress in certain circumstances, does not rise to level of

waiver of sovereign immunity). Tribal courts have similarly concluded “insurance


27

simply limits the total exposure, if [a housing authority] has expressly agreed in

writing [to waive its sovereign immunity].” See Alkire v Standing Rock Housing

Authority, File # COMP 11-087, Memorandum Opinion, p. 3 (June 30, 2011)

(attached as Exhibit M) (emphasis in original).

As demonstrated, obtaining liability coverage does not waive sovereign

immunity. Rather, it provides protection of tribal assets and limits total exposure

in the event a tribe’s sovereign immunity is waived, abrogated or ignored. In sum,

whether CCHA participates in a risk management pool, or procures insurance, has

no effect on its sovereign immunity. This provides further support for dismissal.

f. Tribal Officials Enjoy Sovereign Immunity.

It is well settled tribal sovereign immunity extends to tribal officials when

acting in their official capacity and within the scope of their authority. Ingrassia,

676 F. Supp. 2d at 956 (citing United States v. Oregon, 657 F.2d 1009, 1013 n. 8

(9th Cir. 1981); Linneen v. Gila River Indian Cmty., 276 F.3d 489, 492 (9th Cir.

2002). Additionally, the Tribe’s extension of its sovereign immunity to tribal

officials is expressly provided by statute. Ex. K, § 3.3.

The substance of Plaintiffs’ allegations does not suggest Ms. Hay or Ms.

Billy acted outside their official capacity or scope of their authority with regard to

the alleged actions or omissions alleged in the Tribal Court Complaint. In fact,

Plaintiffs’ allegations do not identify actions attributable to Ms. Hay or Ms. Billy


28

outside their official capacity and both are expressly referenced by Plaintiffs in

their capacity as CCHA officials. Ex. A, ¶¶ 36, 51-63. Plaintiffs allege: (1) “[Ms.]

Billy, an employee of CCH[A],” authorized the disposal of condemned house

materials; and (2) “[Ms.] Hay, Director of CCH[A],” and/or CCHA defrauded

Plaintiffs regarding availability of insurance coverage for rebuilding the house or

their damages. Id. The referenced allegations make up the entirety of Ms. Hay

and Ms. Billy’s involvement in Plaintiffs’ lawsuit. Plaintiffs will be hard pressed

to establish CCHA’s authorizing disposal of the bits and pieces of the exploded

home and explaining Plaintiffs’ damages were not compensable under CCHA’s

insurance coverage, was in any way beyond either employee’s official capacity or

scope of authority. Because the referenced actions of Ms. Hay and Ms. Billy could

only be done in their capacity as CCHA employees, and such actions are the type

that would be implicitly authorized during the course of employment, they are

entitled to sovereign immunity protection under the foregoing principles of law.

As such, CCHA requests the Court dismiss the claims against its employees as

they enjoy sovereign immunity as Tribal officials.


29

CONCLUSION

For the reasons set forth herein, CCHA respectfully requests the Court

dismiss Plaintiffs’ claims with prejudice and grant such other and further relief as

the Court deems just and proper.

DATED this 8th day of July, 2015.

BROWNING, KALECZYC, BERRY & HOVEN, P.C.

By: /s/ Evan M.T. Thompson Evan M.T. Thompson

Attorneys for Chippewa-Cree Housing Authority, Donna S. Hay and Thela Billy

CERTIFICATE OF COMPLIANCE

Pursuant to L.R. 7.1(d)(2)(E), I certify that Defendants Chippewa-Cree Housing Authority, Donna S. Hay and Thela Billy’s Brief In Support Of Motion To Dismiss, is double spaced, is a proportionately spaced 14 point typeface, and contains 6,468 words.




30

CERTIFICATE OF SERVICE I hereby certify that on the 8th day of July, 2015, a true copy of the foregoing was served: Via ECF to the following parties: Mark Mackin Attorney at Law (#8290) 4703 Almosta Road Helena, MT 59602




31

EXHIBIT INDEX

EXHIBIT A: Tribal Court Complaint EXHIBIT B: Motion to Dismiss (May 12, 2009) EXHIBIT C: Plaintiffs’ Response to CCHA’s Motion to Dismiss (June 4, 2009) EXHIBIT D: Order Dismissing Case EXHIBIT E: Appellant’s Brief in Support of Appeal EXHIBIT F: Opinion EXHIBIT G: Order (Oct. 14, 2011) EXHIBIT H: Letter from Business Committee to Mark Mackin (Nov. 28, 2011) EXHIBIT I: Chippewa-Cree Law and Order Code, Title I, Chapter 4, §4.1(1) EXHIBIT J: Chippewa-Cree Law and Order Code, Title I, Chapter 2, § 2.1 EXHIBIT K: Chippewa-Cree Law and Order Code, Title I, Chapter 3, § 3.3 EXHIBIT L: Tribal Ordinance 3-63 EXHIBIT M: Alkire v Standing Rock Housing Authority, File # COMP 11-087, Memorandum Opinion, Order for Judgment, and Judgment of Dismissal (June 30, 2011)


Documents

Evan M.T. Thompson Chad E. Adams BROWNING, KALECZYC, … · 12/16/2015 · Evan M.T. Thompson . Chad E. Adams . BROWNING, KALECZYC, BERRY & HOVEN, P.C. 800 N. Last Chance Gulch Suite