Atkinson v. Haldane

al., Petitioners, et Earl S. ATKINSON Romey

George HALDANE and Edward Williams, Respondents.

Jones

No. Alaska.

Supreme Court of

Sept. decedents, pursuant accorded

rights of the 1301-03, the Indian Civil to 25 U.S.C. §§ III); (count and the Rights Act of 1968 Community of Metlakatla and defendant Community defendant officials police negligently Metlakatla trained the (counts I-III). involved The com- officers damages (count sought punitive plaint also IV). alleged pursuant Jurisdiction was 1360(a) in rele- provides, which U.S.C. § part:1 vant Ziontz, Pirtle, Anderson, Moris- S. Steven Each of the or Territories listed States Seattle, Wash., Chestnut, set, & Ernstoff following jurisdic- shall have in the table petitioners. for tion over civil causes of action between parties Indians or to which Indians Ketchikan, Stump & Stump, W. Clark country which arise in the areas of Indian Stump, respondents. for the name of the or opposite listed State Territory to the same extent that such OPINION Territory jurisdiction State or over action, J., BOOCHEVER, RABI- other civil causes of and those civil C. Before BURKE, Territory that are WITZ, CONNOR, laws of such State or ERWIN NO general private persons application JJ. private property or shall have the same WITZ, Justice. RABINO effect within such Indian coun- force and try they have elsewhere within the petition for us on a case comes before Territory: State or court’s denial of superior review from State judgment. summary motion for petitioners’ country Territory Indian affected of two involves the deaths litigation country within Indian Alaska.All Indians, Marilyn Alice Haldane Metlakatla Territory Williams, residents of Romey Ervin resulting filing complaint, Community, Subsequent to the Indian Metlakatla below, petitioners, ac- defendants moved injuries incurred in an automobile from summary judgment grounds on the that the on the reservation. May cident upon a claim complaint filed suit in failed to state personal representatives Their Alaska, granted supe- which relief could be and the for the State superior court Ketchikan, rior court lacked both matter and Community against officials, personal jurisdiction. The motion was Metlakatla, certain grounded principles on the employed officers police and four tribes, law, enjoy as a matter of federal complaint alleged that Community. The suit; recklessly sovereign immunity officers police the defendant vehicle, Rights Act of 1968 thereby under the Indian Civil operated their negligently courts; exclusively vested in the federal which the deaths was causing the accident from event, punitive negli- claim (count I); police officers resulted violative of damages should be dismissed as aid and assistance failed to render gently court, deny- II); public policy. superior (count of the accident the victims judgment inso- ing summary the civil the motion for conspired to violate officers police public corporation like character or other to lie under was also asserted 1. Jurisdiction provides, corporate provisions in its character and within the the of AS 09.65.070 authority, injury scope of its an where relevant: arising rights plaintiff act from some incorporated against local units of Suits government. or omission of the unit of local (a) government, be main- An action city, borough, incorporated tained grounded it was on the doctrine of far as 1887 approximately 800 Tsimshian In- sovereign immunity, concluded that migrated dians from British Columbia to jurisdic- of Alaska have courts of State Islands, Annette located in southeastern hear this suit the Metlakatla tion to Alaska, and established the Metlakatla Indi- Community by virtue of 28 an Community. The move was prompted 1360(a) AS 09.55.580 and AS 09.65.- by disagreements with the Province of Brit- superior 070.2 The court further ruled that ish Columbia and the Dominion of Canada courts Alaska’s do not with respect treaties, land claims and brought pursuant over claims to the Indian self-government claims.4 While in British Rights Act of 1968 and that this count Civil Columbia, the Community had an organized failed to state a complaint claim government which was similar to the upon granted. which relief could be traditional village council, Tsimshian but authority court also held there is no for an they had adopted certain changes in re- punitive damages. award of Petitioners sponse to Christianity and the demands of on the moved for reconsideration basis of Duncan, William the missionary to the Namekagon Development Co. v. Bois Forte group. The conflicts with the British Co- Housing Authority, Reservation 517 F.2d lumbian government arose from the 1975), previously Cir. a case not government’s refusal recognize native brought superior to the attention of the and aboriginal rights, its refusal to recog- That motion was court. denied. Petition- nize village council as a legitimate gov- ers moved a second time for reconsideration erning body laws, and its laws as legitimate the basis that the United States Su- and attempts by government place Bryan County, Court in v. Itasca preme the Community under Canada’s Indian Act U.S. L.Ed.2d 710 appoint agent. an Indian (1976) recently had reversed a decision of When negotiations with the British Co- the Minnesota Court on which the government lumbia reached an impasse, the superior court relied in its denial of the Community planned the move to the An- sovereign immunity portion of the motion nette Islands in Alaska. Duncan was sent judgment. The summary second motion to Washington, D. C. to meet with officials for reconsideration was also denied. This gain grant order to a land in Alaska. petition for review followed.3 Encouraged by discussions, Duncan’s will The first we address in this group moved to Alaska in 1887. A tribal matter is whether the Metlakatla Indian government passed was established which Community possesses sovereign immunity bills, taxes, collected appointed police offi- subject wrongful from the death actions. cers, carried public out works and looked question requires The answer to this public safety. after In 1891 set initially we discuss the historical back- (Act aside the Annette Islands Reserve ground of the Metlakatla Indian Communi- 3,1891, March 1101,48 ch. 561 26 Stat. compared ty, its status with that of other 358) U.S.C. § peoples, Alaska Native and the decisional for the use law in area of tribal immuni- of the Metlakahtla Indians ty- . and such other Alaskan natives provision wrongful 2. AS 09.55.580 makes 4.This historical information and much of that death actions. AS 09.65.070 is set out in note which follows is taken from the affidavit of 1, supra. petitioners Barbara Lane which submitted be- support summary low in of their motion for judgment. anthropologist, spe- Respondents sought Ms. Lane is an have not review cializing ethnology superior ruling regarding in Northwest appropri- Coast court’s ethnohistory. by She brought was retained ate forum for claims under the Indian Rights Metlakatla Indian superior conduct re- Act Civil or the court’s origins community regard- search on the punitive damages determination that were not ing sovereignty the tribe’s claims of before and recoverable. after the creation of the reservation in 1891. them, territory, and used inhabitants of the ceded to be held may join as common, choice, rules and under such to their according reserving them in their subject to such restric- regulations, allegiance, may natural return to Russia tions, from time to prescribed years; they within three but if should Interior. Secretary of the time prefer territory, to remain in the ceded they, exception with the of uncivilized Act, Alaska Native Claims Settlement tribes, native shall be admitted to the 92-203, 43 U.S.C. 85 Stat. P.L. enjoyment rights, advantages, of all the Alaskan Indi- revoked the other §§ and immunities of citizens of the United aside, set but which had been an reserves States, pro- and shall be maintained and Re- Annette Island excepted the specifically enjoyment tected in the free of their lib- 1618(a). 43 U.S.C. serve. erty, property, and The uncivi- religion. 23, 1944, August the Constitution On lized tribes will be to such laws Indian Commu- of the Metlakatla By-Laws regulations as the United States Secretary nity approved were time, may, adopt regard from time to Interior, of the Indian pursuant 16§ aboriginal to the country. tribes of that 987, 1934, Reorganization Act Stat. 476; by the they were ratified Thus the difference was not between Na- U.S.C. § 19, Alaskans, 1944. These Community on December tive and white but rather be- government a local documents established tween the “civilized” and “uncivilized” 12- provisions for a system complete with tribes.7 A second distinction stems from mag- judiciary. a The fact early member council and that in the the terri- days of judicial chief established as the tory, istrate was the land resources of Alaska seemed limitless; levy fines not in power with the parallel officer thus of the westward of ordinances migration excess of for violations white civilization which dis- $360 The documents do passed by placed the council. the tribes never occurred in Alaska. immu- not mention waiver of provides partial also a reason for the Community adopted corpo- nity. The also lack of reservations in Alaska.8 Another 17 of the Indian lies pursuant though rate charter difference in the fact that even 988, Reorganization purchase territory Act of Stat. occurred in That document contains years four before the termination of U.S.C. power ratify “sue and be sued” clause. treaties with Senate’s Indians, government attempt- never interactions of the United States enter into treaties with Alaskan ed to Na- peoples the Alaska Native government and tives.9 different from whole have been much as a government The Metlakatlans share some of these those between major The first listed differences with other Alaska Na- in the other states.5 tribes tives, initially yet respects they from the fact that in certain other are difference stems exception exception.10 Russian to the The Metla- the Alaska Natives came under Cession,6 Ill, apart in art. katlans’ reservation status sets them Treaty rule. The Natives,11making from other Alaska them provided: factor, Community Egan, respect 8. Note that with to this 5. See Metlakatla Indian 556-557, 45, 50-51, exception excep- Metlakatlans to the S.Ct. tion, having (1962). the Annette Island Reserve been L.Ed.2d established in 1891. 6. 15 Stat. 539. Ratified the United States Cohen, Handbook of Federal Indian Law 9. F. May proclaimed June (1942; printing, Mexico) Univ. New second cited as [hereinafter Cohen]. distinction see In re For a discussion of this course, Minook, 2 Alaska 200 Of 10. Id. at 415. Metlakatlans, apply does not distinction they immigrated to Alaska after the Alas- since earlier, 11. As noted the Alaska Native Claims ka Purchase. Act, Settlement revoked §§ the tribes other ans the protection much more like of the white set- has had an effect on the safeguard states. This status tlers but to the Indians against exploitation. the Metlakatlans as well. assimilation of Alaskan Indians are now citizens, voting some of whom history occupy of the Metlakatlans reveals prominent public unlike office in the strong organization central state government. Metlakatlans, these groups.12 Alaska Native Given State most us, tells have always paid taxes, state differences, important it is to determine practice contrast described and they we ac- whether or not mandate that prescribed for other reservations in The cord treatment to the Metlakat- different Indians, Kansas always it has been given than that to tribes in other lans assumed the reservation is subject point states. At this we turn to the deci- (citations state omitted) laws.13 sional law which deals with the Metlakatla Community. Justice Frankfurter provision also noted the reserving the section the Annette Islands dealing with leading In one of the cases subjects the Metlakatlans to the Community, the Metlakatla Metlakatla In- rules, regulations and restrictions imposed Egan, dian U.S. by the Secretary of the Interior.14 The (1962), 7 L.Ed.2d 562 Justice Secretary had promulgated two series of be- Frankfurter reviewed differences regulations which the thought had a tween the Indi- Indians Alaska and the bearing on the issue it. before The first ans of the other states. He stated: were regulations issued in 1915 which es- Alaska, of southeastern Indians government tablished local powers and very substantially adopted who have and gave Community’s elective council au- been the white civiliza- adopted man’s thority pass laws not in conflict with tion, were never in the hostile and isolat- federal territorial laws.15 The second position many ed tribes in States. other regulations, 1915, were also issued in autho- a early judge, holding As as 1886 federal rizing the use of fish on traps the reserve.16 Alaskan Indians Thirteenth Supreme The Court held that federal Amendment, that the principle denied in authority 3, reserved the Act of March sovereignty Indian national enunciated in 1891, precluded the assertion state’s Georgia (US) 515, Worcester v. 6 Pet. 8 anti-fishtrap given statute Secretary’s L.Ed. to them. were applied There regulation permitting fishtraps. Thus, al- Alaska, in although no Indian wars on at language though in the case could be cited occasion, least one there were of an fears authority as for the proposition that attempt uprising. There was never an in unique history of the Metlakatla Communi- Alaska to isolate Indians on reservations. ty mandates treatment different from that Very created, pur- ever few were states, accorded to tribes in other the actual these, many pose of contrast holding of the case a supremacy reflects States, notion, e., other was not to confine the Indi- the Secretary’s regulation i. al- (1970). the other limited reserves which had been 14. See made, specifically exempted but Annette operation. Island Reserve from its 43 U.S.C. Community Egan, Indian v. Metlakatla 1618(a). U.S. at at S.Ct. L.Ed.2d at 569. regulations These were contained in 25 villages 12. The Native communities (1939 ed.). They seq. 1.2 et §§ C.F.R. are no lines, organized Alaska were not on “tribal” part longer a of C.F.R. ethnological village and the rather than the regulations topic, amended, organization. tribe has been central unit of The on this as Cohen, case, promulgated supra See note n. 208. after 414 & the Metlakatla (1976). found in 25 C.F.R. §§ 88.1-.6 Community Egan, Metlakatla Indian v. 552, 556-57, U.S. 562, 82 S.Ct. 7 L.Ed.2d (1962). After their settlement and before the application fishtraps preempts lowing fishtraps.17 created, Indians, reservation was un- prohibiting law the state’s guidance missionary, of a noted der primary significant deemWe adopted self-government a form of suited by Justice Frankfurter drawn distinction needs; to their established for themselves Alaska and other the Metlakatlans between village dwellings, with substantial Community in Metlakatla Natives schoolhouses, like, case, Organized and construct- companion and its Egan 60, 82 Egan, ed and installed an extensive establish- Village of Kake the exist- (1962), they 7 L.Ed.2d ment where canned salmon for the S.Ct. He stated: ence of reservation. market. regulation of off-reservation But state purpose creating the reservation impinge on certainly does not fishing assist, encourage, protect was to self-govern- reservation treaty-protected Indians in their effort to train themselves in Wil- ment, found decisive the factor industry, to habits of become self-sustain- 217, 79 v. Lee U.S. liams [358 ing, ways and advance to the of civilized appellants (1959)]. Nor L.Ed.2d True, life. the Metlakahtlans were for- rights derived from any fishing Kake ] [in born, eign but the of Congress action had has never held laws. This Court federal (footnote made that immaterial here.19 regulate power lack that States omitted) rights, such aboriginal exercise of The Supreme thus Court held the fact Kake], or of those based claimed [in were Metlakatlans not native to occupancy.18 change the United States did their es- Metlakatlans was also history of the sential reservation status when by the United States

examined authority had exercised its to establish that v. United Alaska Pacific Fisheries reservation. States, 63 L.Ed. 138 U.S. Thus, foregoing, based on the we The case involved suit conclude that the reservation status of the enjoin corpo- a California United States Metlakatla Indian sets them fishtraps in navi- maintaining ration from apart from other Alaska Natives waters in the Annette Islands. gable the status of Metlakatla Indian Commu part were of the that the waters Court held nity always closely has more resembled the established for the Metlakatlans reservation status of the in other injunction granted. should be tribes states than the thus the and noted: status of other Natives in Alaska.20 The Court case, However, companion Organized in a 20.Whether Alaska Natives should be accorded 17. 60, Egan, Village v. 369 U.S. 82 S.Ct. the same treatment as other tribes has been of Kake Cohen, 562, (1962), Supreme debated for some time. Felix a noted 7 L.Ed.2d 573 law, application of the state’s anti-fish- scholar on stated: allowed the Tlinget trap Indian communities. The law to legal position The of the individual Alaskan Supreme Court said: generally natives has been assimilated to that that of the of the Indians in the United States. It is now here differs from The situation substantially they occupy nor An- established that in that neither Kake Metlakatlans goon provided same relation to the Federal as do has been with a reservation Government States; statutory authority residing the Indians they, in the United that and in that there is no Secretary property, Interior their and their affairs are under under which the of the Government; protection operate traps might permit Federal either to fish con- Congress may legislation trary such as law. enact to state 564, 62, protection; at 576. deems fit for their benefit and and at 82 S.Ct. at L.Ed.2d 369 U.S. respect that the laws of the United States with Organized Village Egan, of Kake v. Indians resident within the boundaries of 562, 571, 60, 75, 82 S.Ct. L.Ed.2d proper generally applica- the United States (1962). ble to the Alaskan natives. 63 L.Ed. at U.S. at 39 S.Ct. at 19. 248 placing The of the Alaskan natives on the (cid:127) footing as other American Indians was same exclusive, having of tribal is a thority right and us to brings This boundaries, those all lands within sovereign- immunity. only which is acknowledged, but recognized in first Indians ty guaranteed by the United States.21 (6 Pet.) Georgia, U.S. Worcester in which Chief (1832), 557, L.Ed. leading One of the decisions the area United sovereign immunity the Indian na- Marshall stated Justice Fidelity United & Guaranty States States were tions communities, Co., political having distinct ter- U.S. L.Ed. 894 boundaries, ritorial which their within au- before the being treated protection shifting policy guardianship as under the which has and culmination a opinion Government, of the of the Solic- Federal been well described in an itor for the at least to Department bring such an as of the extent Interior: them spirit, beginning, long within the ter, for In the and time if after not within the exact let- Territory Congress of the the cession of this no never undertaken to took laws relative Indians; to American natives; particular and supported notice these this by conclusion is the fact hamper their individual creating government that in the territorial movements; locality them to confine vesting territory Alaska powers with the reservation, place them under im- or to legislation control over its officers, mediate control of its as has been affairs, including public schools, internal Indians; the case with the American and no Congress expressly legis- excluded from that special provision support was made for their lation and control the schools maintained for comparatively recently. and education until the natives and declared that such schools days repeatedly it was And in the earlier by held should continue to remain under the control Attorney the courts and the General that Secretary of the Interior. these to our bear the same natives did not relation explanation An of the reasons for this Government, many respects, changing policy helpful will be in under- was borne the American Indians. standing legal position of the Alaskan exception With the of the act of March natives. the The United States first followed 1095, 1101), (26 apart Stat. which set example of Russia. From 1867 to the Annette Islands as a reservation for the Organic when the Act of made Alaska a Metlakahtlans, use of the Columbian natives who a band of British' district, judicial civil hardly vast land had immigrated into government the shadow of a civil body, except Alaska in a rization to make reservations the canoes and and also the autho- geographical was little more than a subdivi- Secretary given Interior sion of the sional Save for United States. the occa- landing places for for military authorities, activity natives, Congress boats of neglect natives shifted for themselves. directly has not created or creation of reservations authorized the is indicated the failure of the United other charac- them, provide agent regular States to ter for them. generally. respon- in the case of Indians Later, however, Congress began directly delegated duties of such sible to a citations an officialwere recognize being, very these natives as to a commandant, military (footnotes least, considerable extent at under our omitted; original) emphasis in guardianship and Government’s enacted laws Cohen, supra note at 404-05. protected possession them the This statement Marshall often cited in they occupied; provision the lands the allotment of made opinions princi the ple in this Whether the area. severalty, to them in lands cited therein remains inviolate difficult to to the similar those made American Indi- example, ap determine. For proval is cited with ans; hunting, gave special fishing them and qualification in and without McClana particular privileges to other support enable them to Comm’n, 164, 168, han v. 411 U.S. Arizona Tax themselves, supplied them with 1257, 1260, 93 S.Ct. 36 L.Ed.2d propaga- as to reindeer and instructions tion. give their companion Yet in the case decided the same Congress supplied has also funds to Jones, day, Apache v. Mescalero Tribe hospital these natives treat- medical 145, 148, 36 L.Ed.2d finally making ment and made and is still 119 the Court states: defray appropriations to extensive the ex- penses sup- conceptual clarity of both and their Mr. their education The Chief Justice port. Georgia Marshall’s view in given way has Worcester only Not in has this manner to more individualized treatment being particular specific treated these as wards natives of the treaties and federal stat- they repeatedly (citations omitted) Government but been utes . . . recognized by (D. 1886), Quah, so courts. In re Sah 31 F. 327 Alaska apply principles From this it will be seen that these natives enunciated in refused to unquestionably Georgia are now considered and Worcester v. Indian tribes of Fidelity Court U. S. juris- related to the to the to adjudicate Missouri a judgment diction of a to enter federal court against cross-claim the United States. an against public on a cross-claim Indian tribe. The policy exempted which States, trustee for the dependent The United as Choc- well as the as dominant sover- Nations, eignties taw had from without and Chickasaw leased coal suit consent contin- immunity ues even land to the Texas this after Compa- Kansas and Coal dissolution ny. surety government. on a bond These Fidelity U.S. Indian exempt Nations are from suit without guaranteeing payment the lease royal- congressional authorization. It is as ties. lessee of The substituted the Kansas though immunity which was theirs and Texas went into receiv- Company Coal sovereigns passed to the United States ership and the United States filed a claim benefit, for their as their properties royalties. owing denied The lessee did. Possessing immunity di- from royalties for an amount and cross-claimed suit, opinion rect we possess- are $11,000. reorganization pro- over In the immunity es a similar from cross-suits. court ceedings, the federal allowed the This necessarily seems to follow if $2,000 $11,000 claim of the Indians and the public protects policy quasi-sov- company. appeal cross-claim of the coal No ereignty judicial from attack is However, judgment. was taken from this sovereign- made . . . effective. judgment, prior entry ty possessing immunity should not be against surety United filed suit States compelled against to defend cross-actions who, judgment, entry pleaded after courts, away territory from its own or in as a bar to judgment recovery earlier choice, not of merely its own because by the United The Court held States. except debtor was unavailable outside to the extent the cross-claimed amount ex- the sovereign’s consent. judgment recoupment, ceeded was void. reasoning particularly applicable Court stated: with their gov- to Indian Nations unusual view, however, We are of the that the organization peculiar ernmental judgment Missouri is void in so far as it problems.22 (footnotes omitted) undertakes to fix credit In United States v. Indian Nations. why does not Supreme Court discuss Shaw, U.S. S.Ct. 84 L.Ed. “[tjhese exempt are Nations 461 we hold cross-claims ] [s/c authorization,” congressional suit without justiciable States United are cites Turner v. United opinion but only in those where Congress courts States, L.Ed. U.S. consented to their consideration. Pro- Murphy, Adams (1919); 165 F. ceedings upon governed them Thebo v. Choctaw Tribe (8th 1908); Cir. same rules as suits. direct the Missou- Indians, 1895), 66 F. Cir. proceedings corporate ri reorganiza- support of that statement. tion, States, United the Superin- Turner involved an tendent of action by the Five Civilized Tribes a non-Indi- Nations, organization the Choctaw Chickasaw an who had formed in con- filed a claim on behalf of the junction with Creek Indians open Nations. This it is pasture using authorized to do. Indians’ graz- No reservation statutory granted jurisdiction authority ing rights. despite A fence was built dis- Alaska on the were basis the Alaskan tribes tion of atrocities attributed to the Indian mas- ters, different from other Indians and surprising had been it is not that the district court by accorded different treatment the United equally decided that the applicable Amendment 13th was government. States This decision of the feder- to the Alaskan tribes. directly al court was not on the sovereignty, tribal question rather Fidelity but dealt with the United States v. United States & slavery practices Co., 506, 512, by followed Guar. 309 U.S. 60 S.Ct. light (1940). Alaskan tribes. of the court’s recita- 84 L.Ed. and The Creek neighborhood Nation was recognized by within satisfaction destroy it. When it to by Indians threats the United political States as a distinct three bands of Creeks nearly completed community, with treaties, which it made Approximately years fifteen destroyed it. which, and within its own territory, ad- was dissolved later, organization the tribal ministered its internal affairs. Like oth- action. Two congressional to pursuant governments, municipal er as well as dissolution, Congress provid- after the years state, the Creek Nation was free from May 1906: the Act of 26 of ed liability injuries persons proper- autho- hereby of claims is That the court ty due to mob violence or failure to keep adjudicate and and ren- to consider rized peace. liability Such is frequently may judgment equity as law and der imposed by upon statute cities and coun- of the claim of in the matter require ties; but neither nor the Creek Turner, Muskogee, Okla- W. Clarence Nation subject had dealt with by any Nation, homa, the Creek against legislation prior to 1908. The fundamen- personal property destruction tal obstacle to recovery not the immu- pasture the loss of the value of suit, nity sovereign of a but the lack of Turner, assigns, by or his the action said right a substantive to recover the dam- authori- any responsible Creek ages resulting govern- from failure of a ties, cognizance acquies- or with their ment keep peace. or its officers to cence, to said cause in the party either And the participation injuries in the of an right ap- to have the of claims court acting officii, officer colore but the United Supreme Court of peal open law, and known violation of the States.23 cannot alter the case. The claimant’s of Claims to re- filed in the Court Turner contention that the defendant owed to lost; the Court of money allegedly he cover claimant, grantee, as its own great- ap- case and Turner dismissed the Claims duty persons er than it owed to other Justice Supreme Court. pealed against him territory, protect mob Court, Brandéis, held that writing for violence, finds no support in reason or recovery. Part was not entitled Turner (citations omitted) authority.24 that the Creek reasoning was of the Court’s Thebo v. Choctaw Tribe of Indians in- gener- liable as a matter of Nation was not former attorney volved a suit shaped law. Two considerations al attorney’s the tribe for fees. The conclusion, first, sovereign immuni- Court’s asserted that the court lacked both second, Tribe the lack of a claim for relief ty, jurisdiction. personal matter government keep for failure of a recognized that it was stated: The Thebo court peace. The States, guarded against oppression 356- from this source 23. Turner v. United 109, 110, themselves, 63 L.Ed. the elev- 39 S.Ct. than the states under Constitution; enth amendment for the 63 L.Ed. at 294. Id. at sued, to be but the United states consent 1908), Murphy, 165 F. 304 Cir. Adams v. given permission States has never previously employed at- a suit involved generally, might be these Indian nations sued torney for the Nation on his contract of Creek even with their consent. attorney equitable employment. sued for 165 F. at 308-09. The court held that a suit in The court noted that “the Creek Nation relief. equity would not lie the Creek Nation. compel perform- exempt from civil suit to Sovereign recognized immunity as in Adams damages for ance of its contracts or to recover treaty from the does not stem status of the their violation.” The court reasoned: Creeks, provision agreement grant- or a in an policy Upon public considerations of such rather, ing rights self-government, them but exempt suit. Indian tribes are from civil perceived it stems from the “disastrous conse- doctrine of the That has been the settled quences” widespread that would result from beginning. government If other Thus, exposure to civil suit. immu- adopted the would course were tribes soon court, nity, recognized the Adams is a litigation with civil be overwhelmed public policy. of federal direct result judgments. The civilized nations in the Indi- Territory probably better . . to power authorize the eleventh within amendment to the constitu- tribes, but noted that “no against suit tion. The civilized Nations in the Indian jurisdiction take presumed Territory court has ever probably better guarded the five against any against a claim civilized oppression from this source than Territory in the Indian ab- themselves, Nations states for the may states congress expressly an act of con- sued, sence of consent to be but the United States jurisdiction particular in the ferring given permission never that these court further on case.”25 The Thebo relied might Nations be sued generally, its plenary pow- the fact that in exercise of even with their consent. As rich as the Indians, Congress had not cho- ers over Choctaw Nation is said to be in lands and against authorize suits the tribes. sen to money, would soon be impoverished if The court stated: subject it was jurisdiction courts, required state, respond to

Being dependent a domestic and all the private parties demands which suit the United States authorize chose to prefer against it. The But, intention of brought against it. for obvious con- gress to confer such a reasons, upon power sparingly has been any court would have to be expressed in policy exercised. It has been the settled plain and unambiguous terms.27 not of the United States to authorize such cases, except suits in a few where the Thus, although U. Fidelity, Turner; S. subject-matter of the controversy was not, Adams and view, Thebo do in our ex- particularly specified, and was of such a plore the sovereign basis of tribal immuni- interests, public nature that as well ty; they deal with public policy reasons Nation, as the interests seemed to underlying congressional decisions not require jurisdiction. the exercise of the However, waive it. in U. Fidelity S. it is policy It has been the of the United stated that is as though the immunity “[i]t place and maintain the States Choctaw which was theirs as sovereigns passed to Nation and the other civilized Indian Na- benefit, United States for their as their Territory, tions in the Indian so far as properties did.”28 We do not read them, plane relates to suits on the this statement as a denial of sovereign im- independent states.26 munity to any tribe yield who did not prop- erty to the Rather, United The court further States. concluded: we think it principle advances the of allowing It has been the settled policy congress formerly self-governing units brought with- to sanction suits generally in the sovereign powers of the United Nations, these Indian them to vestiges States retain some of that sover- upon suits contracts or other causes of eignty greater until the sovereign decides action at private parties. the instance of vestige discontinuance of that is in the respect to their liability to be sued interests public policy. individuals, except in the few cases we mentioned, they have placed been Later cases do not shed much more light States, the United substantially, on source plane occupied by the states under immunity.29 Of these cases Haile v. Sau Indians, 25. Thebo v. Tribe Choctaw 66 F. 28. 309 U.S. at 60 S.Ct. at 84 L.Ed. (8th 1895). Cir. at 899. See, g., Oklahoma, Id. e. 375. Cherokee Nation v. (10th 1972); 461 F.2d Hamilton Cir. Nakai, (9th 1972); generally 453 F.2d Id. at 376. Thebo has been Twin Cir. cited Chippewa Cities Tribal Council v. proposition Minnesota for the that Indian tribes are im- Tribe, Chippewa (8th 1967); 370 F.2d 529 mune from suit without authorization Cir. Maryland Bank, See, Nakai, g., Cas. v.Co. Citizens Nat’l Congress. Hamilton v. e. Wilson, (5th 1966); 1972); Morgan (9th Green v. F.2d 517 Cir. Colo- F.2d Cir. Tribe, (9th 1964); Cheyenne- Dicke v. F.2d 769 rado River Indian Cir. 103 Ariz. 443 P.2d Tribes, Arapaho Inc., 304 F.2d 113 Cir. (4th 1957), is the nooke, 293 Cir. rule that a tribe of 246 F.2d Indians under There, tutelage of the case. United States to the instant is not germane most subject to suit without the consent of propri sued the individual plaintiffs Congress is too well settled to admit of attraction, the Eastern of a tourist etors argument.31 Indians, and the United Band of Cherokee From analysis Haile, capacity it is governmental in its official clear that States the court was looking to tribal status as Indians, personal as trustee for the recognized by the executive branch of swinging bridge injuries sustained when government as a sole precedent condition injuries occurred on the collapsed. The judicial recognition of tribal sovereign im- Ap The Court of Cherokee Reservation. munity. The Band’s tribal property had dismissal of affirmed the lower court’s peals They been lost. separated had been Band of the suit the Eastern Chero the claim to sovereignty of the Cherokee as trus kee Indians and the United States They Nation. were even a North Carolina history tee. The court traced corporate entity. Yet, since the govern- time, through the after Eastern Band30 ment recognized the Band a “tribe,” 1835,when their connection with the Chero court ruled in favor sovereign recogni their kee Nation was severed until immunity.32 act in by congressional as a tribe tion The doctrine of tribal sovereign immunity pointed guardianship The court was recently most reaffirmed the United had exercised over the the United States States Court in Puyallup Tribe, prior holdings its Band and reaffirmed — Inc. v. Department Game, U.S. the facts that the Band had lost their tribal —, 2616, 97 (June 53 L.Ed.2d 667 lands, separated from their had tribe and 23,1977). case, In that the Court held that subjected had been to the laws of North netting on-reservation of steelhead destroyed right had not or the Carolina salmon individual members of the Pu- Thus, duty guardianship. the court reaf yallup regulated Tribe could be by the firmed that the Eastern Band was an Indi Washington. Nevertheless, State of the meaning an tribe within of the Consti portions Court vacated those of the state laws of the United Hav tution and States. court order which involved relief status, ing thus found the court stat the Tribe itself. With reference to the Tribe’s attack on the order as an infringe- ed: Indians, 1962); Salamanca v. Seneca Nation of those wanted to who remain in the East. (W.D.N.Y.1942); F.Supp. 939 White Moun- 47 Those who chose to remain dissolved their con- Shelley, Apache Nation, Indian Tribe v. 107 Ariz. tain nection with the Cherokee but were not (1971); Morgan P.2d 654 480 Colorado made citizens of the United States or North Tribe, 103 Ariz. 443 P.2d 421 River Indian Cohen, supra Carolina. note at 54-56. (Ariz. 1968); Employment Security Dept. Saunooke, 31. Haile v. 246 F.2d Tribe, Cheyenne River Sioux 80 S.D. 1957). Cir. The court also noted that the Su- (1963). N.W.2d preme Court of North Carolina had held that 1817 the Cherokee Nation was divided the Eastern 30.In Band of Cherokee Indians was im- bodies, which remained east of into two one mune from suit in Rollins v. Eastern Band of Mississippi Indians, and the other which resettled Cherokee 87 N.C. 229. Cohen, along the Arkansas and White Rivers. supra at 53-54 n. 343. note 32. We note that of Indian sover- president After Jackson was elected eignty is one in which the commentators find Indians must move he made it clear that disagreement. Compare vast areas of Mar- harassing Georgia laws west. enacted the tone, American Indian Tribal Self-Government were the of Cherokee Nation v. System: Right in the Federal Inherent or Con- Georgia, (5 Pet.) (1831), U.S. L.Ed. License?, gressional 51 Notre Dame Law. 600 (6 Pet.) Georgia, Worcester v. (1976), Smithson, with Israel & Indian Taxa- (1832). attempts After numerous 8 L.Ed. tion, Sovereignty Tribal and Economic Devel- west, moving the New to coerce the tribe into opment, (1973), 49 N.Dak.L.Rev. and John- Treaty signed. treaty Echota son, Indian, Sovereignty, Citizenship Mississippi. all Cherokee land east of the ceded Ariz.L.Rev. 773 provided reservations of 160 acres for It also immunity, preme first recognition Court declared the ment status a political question. noted: Court stated: Absent an The attack is well founded. consent, it is The facts in up settled the case waiver certified with

effective juris- opinion, exercise the division of distinctly a state court not show that Secretary ‘that the Indian tribe. of the Interior recognized over a diction the Commissioner of Court, Indian Affairs have Washington Supreme that it necessary, decided in order Court, all and the commentators concur. into carry provisions effect of said does not ar- Department of Game] [The that treaty, organization the tribal should that either the Tribe or has gue In preserved.’ be reference to all matters immunity or consent- its claim of waived kind, of it is the rule this of this court to it. entry of an order ed follow action of the executive and fact that certainly, the mere And political departments govern- other appeared on behalf its indi- Tribe ment, special whose more duty is to a waiver members does not effect vidual determine such affairs. If them those the Tribe it- sovereign immunity for recognized tribe, Indians are as a this self. court must do the same. — 2621, —, at 53 at 97 U.S. S.Ct. This principle was reaffirmed the Court Thus, at 674. the doctrine of L.Ed.2d Sandoval, United States v. 28, 231 U.S. sovereign immunity continues to be 1, 34 58 (1913), S.Ct. L.Ed. 107 where was Court of the recognized by stated:

United States. course, it Of is not meant this [the light background of of the historical In Tiger Marchie v. Western statement Community Metlakatla and the deci- Co., Invest. 286, 315, U.S. S.Ct. discussed, we previously law find it sional 738, 749, L.Ed. that tribal status is basis for con- any policy discern difficult political question] Congress may that cluding that the Metlakatla Indian Commu- bring community body people sovereign should not be afforded such nity range within the power by this arbi- immunity as tribes in the other states en- trarily calling tribe, them an Indian but there is joy. Additionally, we think merit only that in respect of distinctly Indian further that what petitioners’ argument questions whether, communities the essentially political issue here is extent, what and for they what time shall that should question and this court adhere recognized and dealt depend- with as questions the principle political that ent requiring tribes the guardianship and justiciable.33 applicability Given the protection of the United are to be States principle, petitioners argue further that by Congress, determined and not Community Metlakatla Indian has been courts.34 recognized by government the federal as an given tribe and should be organized thus Thus, we conclude that the Metla- protections accorded other tribes. More katla Community, despite unique particularly, they application ask history, is entitled sovereign immunity. tutelage that tribes principle under the that Community fact came to the United are immune suit in States Territory Alaska from British Columbia congressional absence of consent. significant is not a factor.35 The Communi Holliday, States v. (3 Wall.) United 70 U.S. ty recognized has been by the United States 407, 419, (1866), government 18 L.Ed. Su- an Indian tribe and has been Carr, 186, 215-17, States, See Baker v. 369 U.S. 35. Alaska Pacific Fisheries v. United (1962). 78, 89, 40, 41, 7 L.Ed.2d 39 S.Ct. 63 L.Ed. 231 U.S. at 58 L.Ed. at 114. S.Ct. at Washington, also United States v. See F.Supp. (W.D.Wash.1974). the executive actions should accordingly. question Once be allowed is not a treated decide; the Metlakatla for us to it is a has determined reserved branch tribe, plenary powers Congress. Community is an Indian Unless there has been a waiver question, valid of that immu- nonjusticiable political is a nity, we are obliged all of the benefits to hold is entitled to Com- munity is immune from suit. Supreme Court status. The of tribal Fidelity in U. S. declared United States The foregoing conclusions necessitate those benefits is that one of we respondents’ address the argument congressional immunity in absence 1360(a) is a waiver of from United Court decisions waiver. sovereign immunity.36 Since we must in- Kagama, 118 U.S. States terpret this statute in order to determine 1109, (1886) 228 to McClanahan 30 L.Ed. whether it is a waiver of the Commission, 164, 411 170- U.S. Tax State immunity of the Metlakatla Indian Commu- 1257, 1261-62, 129, 36 L.Ed.2d nity, we deem appropriate the to discuss firmly plena- established (1973) historical (28 context in which P.L. 83-280 power affairs. over Indian ry congressional 1162) U.S.C. and U.S.C. § VI, the United law, clause 2 of States enacted. Article Current issues in in- cluding 83-280, provides: interpretation the Constitution P.L. should be viewed in the historical context of Constitution, and laws of This vacillation of federal between policy be in which shall made United States total preservation assimilation and of Indi- thereof; made, all and treaties Pursuance cultures.37 in polarity poli- federal made, the Au- shall be under or which cy has greatly contributed the confusion States, shall be the of the United thority judicial in the treatment the tribes and Land; Law supreme inspired many of the theories can- shall bound Judges every in be State ons of construction used the courts. any Thing in the Constitution or thereby, not- Contrary State to the laws of At Revolutionary the time of the War withstanding. Constitution, and the writing regarded Indians were as a threat to serious supremacy the decisions Su- the existence of new country. In The States has been preme Court the United regarded Federalist the Indians are as “nat- Lessee, since Martin Hunter’s recognized States, a “dan- ural enemies” of United (1 Wheat.) (1816). 4 L.Ed. 97 ger” mandating strong govern- national law, supremacy federal Because generally ment or a “threat the union.”38 recognize the doctrine of we are bound Among the first in passed Congress laws sovereign immunity, even if we were the area of Indian affairs were the Indian public policy reasons to hold to find valid (or Non-Intercourse) Acts.39 Intercourse in this case. our view inapplicable basically These Acts were non-assimilation- dissenting opinion of Chief Justice Boochev- dealings between Indians ist and controlled doctrine. Chief supremacy er overlooks whites. by analogy from Boochever reasons Justice Act, Rights pro-assimilationist 25 U.S.C. in federal change the Indian Civil al- policy actions should be came to ultimate fruition in tort §§ Act, February such the Act of tribes. Whether or not Dawes lowed License?, 1360(a) Right Congressional quoted Notre of 28 at 36. The text Johnson, (1976). opinion. of this Law. See Sov the outset Dame Indian, ereignty, Citizenship Ariz.L. Note, State of Indians —Feder- (1973). 37. See Taxation Rev. Against Preemption Back- of Taxation al Sovereignty, drop 49 Wash.L.Rev. g., Stat. 39. E. Non-Intercourse Act of 329; 137; Indi Intercourse Act of Stat. 1834, 4 an Intercourse Act of Stat. 729. Martone, Self- Indian Tribal American System: Inherent Government the Federal ture, farm-sized allotments however some provided commentators argue Indian.40 All tribal each individual that P.L. 83-280 is not. Professor Gold- for these allot- beyond land needed view, who berg, embraces latter states: opened to be for non-Indian ments was Passed in PL-280 attempt was an The assimilationist movement’s settlement. compromise between wholly abandon- full bring the Indian into the desire was ing Indians to the states and main- one of white civilization.41 panoply Since taining federally protected them as lay the basic differences in cultures wards, subject only to federal or tribal general allot- private concepts, jurisdiction.48 way to be an ideal system ment seemed major congressional The last statement importance of tribal life and assimi- end the passage came with the of the Indian Civil white late the Indian into civilization.42 Act Rights of 1968.49 Act major consequence of the Dawes Indian lands.43 began was loss of P.L. 83-280 as an attempt by the State California extend its criminal and the system The allotment assimila- jurisdiction to all Indian country within the gradually tionist movement were discredit- state.50 It was decided in committee that ed, terminated system allotment and enacted the Indian any legislation in this area should on a (Wheeler-Howard Reorganization Act general basis, making provision for all Act).44 The primarily Act was aimed at terms; affected States to come within its strengthening governments.45 the tribal of the attitude various States two-year During period groups Indian within those States reject either or accept tribes could the Act’s the jurisdiction on question transfer accepted 181 provisions, tribes Act weighed should be heavily before effect- it.46 rejected 77 transfer; ing any and that recommended legislation application should retain policy

The next revision of federal came of In- dian early P.L. tribal customs and passage in the 1950’swith ordinances to civ- Indians, 1953 and ter- il policy among 88-280 in a federal transactions insofar There is no as these mination.47 customs ordinances are not termination acts were in na- assimilationist applicable inconsistent with State laws.51 388, amended, 40. 24 Stat. 25 331- ending §§ 47. special Termination is the rela- 34, 341-42, 339, 348-49, (1970). tionship The Act is government between the federal as the Act. also known General Allotment Indian tribes. For a discussion of some of acts, Bryan the termination see v. Itasca Coun- interesting grant 41. It to note that 389-90, ty, 373, 2102, 426 U.S. 96 S.Ct. 2111— reservation status Indian Metlakatla 12, 710, (1976). 48 L.Ed.2d pro- height in 1891 at the came assimilationist sentiment. Goldberg, 48. Law Public 280: The Limits of 9, Cohen, Indians, supra State Jurisdiction 42. See at 208. over Reservation note 535, 537, U.C.L.A.L.Rev. 96 S.Ct. at 2110-11 landholdings 43. went from million (1975). Accord, Bryan County, v. Itasca 1887 to 48 acres in acres in million 1934. How- 387-88, at U.S. 48 L.Ed.2d at 720. ever, importantly more most of the lost land was the most land. valuable It is estimated impact govern- 49. The full of this Act on tribal that over of the land value of Indian land 85% yet probably gen- ment been felt. See holdings was lost.. Id. at 216. erally Comment, Rights The Indian Bill of Act, Comment, Status history Constitutional of Tribal Govern- 44. For a see Trib- ments, 82 Harv.L.Rev. 1343 Reorganiza- al and the Indian Self-Government (1972) tion Act Mich.L.Rev. 955 H.R.Rep. Sess., cited as Tribal Cong., [hereinafter Self-Government]. 50. 83d No. 1st Cong, U.S.Code and Adm.News 2411. Canby, 45. See Civil Jurisdiction and Reservation, L.Rev. Utah 211. at Id. 2412. Self-Government, supra at Tribal note general application private persons jurisdiction criminal state The extension private property, is deemed legislation; desirable.54 thrust of primary was the great without a was added section the civil specifically did not consider the Goldberg Professor of discussion. deal question which is before this court. states: Bryan County, v. Itasca 426 U.S. con- less evidence is much There (1976), 48 L.Ed.2d 710 conferring civil rationale gressional interpret Supreme Court refused Public states, much less on the jurisdiction piece purely Law 280 as a assimilationist decision. State for that support

factual legislation. emphasized The Court that the Indians reservation over jurisdiction civil grant jurisdiction of state was not intended somewhat have been believed undermining was in the or destruction to “result juris- state criminal than more extensive governments of such tribal as did exist courts state diction, though typically, . . . .” 426 at at U.S. S.Ct. resolve claims 2111, 48 powerless were L.Ed.2d at 721. The Court went on arising the reser- note, language Indians strongly supporting reservation many governed law federal Community’s position: vation. Since involving Indi- relations civil important The Act itself refutes such an infer- with administer- B.I.A., charged ans, the notably there is ence: absent confer- laws, gov- considerable played ing these ral of state over the tribes (foot- the reservations.52 erning role on added) (emphasis themselves . . . . omitted) Report states: The House time.53 ed at that the reservation. which was located on ans Bryan contention that is respondent’s Thus several States Indians of Similarly, the from the case at bar is cer- distinguishable acculturation and stage a have reached impor- in view the tainly correct. But our exten- makes desirable that development opinion is the Supreme tance of the Court’s to the Indi- jurisdiction civil of State sion Supreme of the approach fact that Permit- their borders. within country an determine, Bryan in was to adjudicate civil Court courts ting the State history wording of legislative reserva- basis of arising on Indian controversies Act, Congress expressly what intended reservations to those tions, to extend Bryan, the Su- respec- go and to no further.55 laws of the civil substantive stated: preme laws are Court as those insofar tive States significance This omission has in Limits of Goldberg, 280: The Law Public 52. Indians, application of construction of the canons over Reservation State Jurisdiction (1975) affecting applicable [hereinafter statutes Indian immu- U.C.L.A.L.Rev. nities, normally 280]. Public Law mention would as as some cited sweeping change expected a in the if such Band of Rosa and Santa id. at 53. See government and reservation status of tribal (9th Kings County, F.2d Indians contemplated by Congress. Indians had been 1975). Cir. 48 L.Ed.2d at U.S. at 96 S.Ct. at concluded: 717. Later the Court 848, supra 2412. H.R.Rep. at note No. enacting in- Pub.L. 280 had in [I]f history legislative In its examination general upon the States civil tended to confer statute, stated: the Court taxation, including regulatory powers, over purposes, significance special for our Of Indians, expressly have it would reservation however, mention or absence of is the total said so. congressional regarding intent a discussion L.Ed.2d at 96 S.Ct. at authority upon to tax an the States to confer property on reservations. Indians or Igg policies use of the federal autonomy, consistent and exclusive favor “Indian

[T]he in,’ action,’ ‘arisftng] self-government ‘civil causes of terms reservation and economic pri general application self-development.” Thus, laws of ‘civil 532 F.2d at 663. court, persons private property,’ like the in Bryan, vate legislative in the Act and ‘adjudication],’ adopted interpretation narrow conclusion history virtually compels grant jurisdiction our state U.S.C. 1360(a). intent 4 was to primary § that § litiga civil jurisdiction private over grant Employing approach parallel that involving in state reservation Indians tion Bryan used the courts in and Santa court.56 Rosa, namely, that ambiguity is to be re- a suit thus arises whether in favor of solved Indians and the Metlakatla Indian against 1360(a) is to U.S.C. be construed narrow- it litigation.” civil is clear “private While is ly, we turn to the text of this statute. The Bryan regulatory that state functions provides statute an express grant of civil taxing scope do not fall such as within jurisdiction states, to six including Alaska, term, wrongful possible is over civil causes of action between Indi- might. action a tribe death ans or to which parties Indians are country arise in areas of Indian . Ninth Appeals Court of for the Cir- same to the extent that such . recently interpreted 28 1360 as State cuit jurisdiction over other civil causes of county’s power enforce applied action, and those civil laws of such State zoning lands ordinances on reservation . that general are of application to Kings Rosa Band of Indians Santa private persons private property shall 1975). County, F.2d 655 Cir. As same force and effect within out, point involved the respondents the case such Indian country they have else- county of a ordinance rather application where within the . State application general than a state statute of was an easier in which to and thus case Respondents argue jurisdiction case at than the bar. withhold upon conferred the state court via this stat- Although the the ordi- holding court’s ute because the case involves claim applied could not be to reservation nance Indians, relief between state clearly ap- distinguishable, statute, wrongful 09.55.580, death AS is a worthy used the court is of note. proach general “civil law ... application set first notes that when court private persons private property” as backdrop of over res- sovereignty delineated argue statute. Petitioners land, the ervation is clear that states that the statute does jurisdiction not confer power regulate specifical- to have no unless over point Indian tribes and the lan- out Congress. that ly granted power by 532 guage gives which “civil laws ... of Next, F.2d at 658. the court notes that an application general private persons or statute, exists in the and that ambiguity private property” the same and ef- force of that all the canons construction dictate fect Indian country within within the ambiguities be resolved in They favor Indi- rest of state. that argue Finally, F.2d at public/private ans. 532 660. court distinction is elemental congressional policy system while the in of jurisprudence. notes that our There is no passed question at the time P.L. was that if this effect 83-280 action involved an Indi- pro-assimilationist, present have been another suing Indian or a suit between a 2109, Construing pari U.S. at 48 L.Ed.2d 722. P.L. 56. 426 S.Ct. at 280 in materia with acts, at 719. those termination concluded Court Congress that had Bryan, persuaded by intended an extension of In the Court was also regulatory power, taxation, including passed by state over the fact that the termination acts Indians, expressly quite explicit reservation it would have as P.L. 280 same were subjecting said so. in the tribes to law and taxa- state Id. at 48 L.Ed.2d at tion. S.Ct. at 2112. alleged 1360(a) ambiguous is legisla- § an Indian for an and that non-Indian in the tive death, history guidance would lie offers little in resolv- wrongful jurisdiction However, ing ambiguity. is one of Of controlling signifi- issue that state court. immunity of the tribe and cance the absence of waiver of sovereign any clear sovereign immunity whether Con- in to be made is the statutes. Since determination 1360(a) sovereign immunity as a tribal long recog- 28 U.S.C. is a gress § intended sovereign immunity. principle strong public founded nized waiver of we that policy, express conclude without an analysis employed to the Pursuant congressional immunity waiver we Bryan v. Itasca by one.58 imply should not We therefore hold 373, 96 County, 426 U.S. Congress, by that virtue of its enactment sover (1976), we hold that L.Ed.2d 1360(a), did not waive the U.S.C. sover- § Indian eign immunity of Metlakatla eign immunity of the Indian tribes and thus is clear only was waived if it Community Community the Metlakatla Indian has sov- unambiguous language from the immunity respect subject with ereign history 1360(a) legislative and its U.S.C. § wrongful death actions.59 waiver. As Congress intended such a that noted, address the legislative history We next effect of the Com- previously munity’s purchase liability insurance. any mention waiver specifically does not court, respondents immunity. only superior argued refer sovereign summary judgment is at all should denied be- legislative history ence in the “general application cause the Metlakatla Indian echoes the relevant had private property” immunity by pur- lan waived private persons study chasing liability insurance waived guage statute.57 Our or had immunity policy us such to the extent of its question has convinced U.S.C. ment, 848, supra Property H.R.Rep. Judgment Indian No. note State Exe cutions, 52 Ore.L.Rev. 317-18 See termination also the discussion of the 58. Note generally County Dispos Snohomish v. Seattle 56, supra. to in note acts referred Co., (Wash.1967), al 70 Wash.2d 425 P.2d 22 denied, rt. by Native ce court in Ollestead v. 59. As noted 19 L.Ed.2d 662. The critical (Alaska Tyonek, Village 560 P.2d would the court if Mann, face we found a waiver Corp. 1977), 564 P.2d and Calista sovereign immunity 1360(a) in § would be (Alaska 1977), 1360(b) limits U.S.C. § judgment 1360(a). jurisdictional grant whether state court would “autho in 28 § U.S.C. 1360(b) provides: . . rize the encumbrance ... § personal property belonging real or . Nothing in this section shall authorize any tribe, encumbrance, any to . alienation, . band or commu or taxation of by nity property, including personal that is held in trust the United States or water real or any any belonging subject rights, tribe, band, Indian or a restriction alienation community imposed is held in the United States . . . .” The to a the United States or is trust record does not contain information sufficient imposed alienation restriction property whether all to evaluate of the Com States; regulation or shall authorize United munity exempt would be and thus suit should manner of such in a the use not lie. treaty, agree- with Federal inconsistent However, opinion 1360(b) provides our any regulation or with made ment or statute 1360(a) support for the conclusion that thereto; pursuant or shall confer intended to a waiver of tribal constitute pro- adjudicate, probate upon the State immunity. sovereign If had wanted otherwise, ownership right ceedings the property or or immunity, it us that it to waive tribal strikes any possession inter- to of such against purely would have allowed execution est therein. assets, g., property. e. tribal real Since important to this subsec- We note that think underlying reasons the for the restrictions the doctrine tion the same interest that serves 1360(b) underlying to are similar reasons immunity serves, e., preser- sovereign i. sovereign immunity, construing the for tribal property “encum- tribal trust from vation of together, that two subsections we conclude brances.” 1360(a) does not constitute a waiver of tribal § sovereign immunity. from which is thus immune juris- judgment execution a P.L. 83-280 state property. Com- allotted real diction includes 168 single whereby relied Respondents upon up

limits. Pueblo set a law enforce- Leekity, organization, v. ment authority, including police Loncassion offi- cers, police (D.N.M.1971), dealing equipment, with an facilities F.Supp. pris- for care, on, oner and so and the liability Bureau purchase of insur- Indian tribe’s Indian Affairs provided about three- analogized also to cases Respondents ance. fifths of the Among funds. other things, corporations hold involving municipal which agreed responsible Pueblo to ‘be immunity municipal units that damages all to injury any person or to waived to of lia- concerned was the extent * * property of any character to obtained.60 The Metlakatla bility insurance fees, pay attorney’s provide liabili- argument replied Indian to this insurance ty protect the Pueblo from Loncassion, claiming by distinguishing that brought suits wrongful because of con- only Congress may sovereign waive the im- by police duct officers. The terms tribe,61 munity distinguishing of a of this contract waive Pueblo’s claim sovereign immunity basis waiver sovereign immunity suits claim- superior municipal bodies. Because the ing wrongful by conduct tribal police of- through court found waiver ficers.62 sovereign immunity in 28 U.S.C. Thus, since apparent it is that the court’s 1360(a), not issue. it did address this holding did purchase not rest on light disposition sovereign of our insurance, but rather on existence of we immunity question, appropriate think it the contractual provision, Loncassion is not possible to address the waiver. strong support for respondents’ argument. rights Loncassion involved a civil action toAs whether analogy should be two po- tribal members a tribal drawn between the tribe and a municipal lice officer the Zuni Pueblo. The Pueb- corporation such purchase of insurance sovereign lo raised a defense immunity is deemed a waiver of immunity recog- the court denied. The court coverage, to the extent of several factors principle nized the are im- tribes First, must noted. in a majority of mune without congressional from suit au- jurisdictions, it procurement is held that found thorization but Civil governmental insurance unit does not 1968, Rights Act of 25 U.S.C. §§ affect the governmental unit’s immunity.63 under which were plaintiffs suing, consti- However, it must also be noted that an tute such went authorization. court increasing number of courts are finding a to hold that the Pueblo had its claim waived waiver of immunity,64 a view which one agreement immunity by terms of an commentary worthy states “is of character- between it and B.I.A. The stat- court as enlightened.”65 ization In order to ana- ed: lyze bar, the issue at is necessary to The Zuni Pueblo and the Bureau of examine the reasons that courts have agreement entered given Affairs into an for finding a waiver of immunity. See, Longpre g., 60. corollary e. Joint School Dist. No. cross-claim. It immunity is a (Mont.1968); 151 Mont. 443 P.2d 1 Wil part from suit on the of the United States and Comm’n, Highway liams v. New Mexico State tutelage the Indian Nations in this im- (N.M.1971); P.2d N.M. Orleans munity cannot be waived officials. If the Village Co., v. Union Mut. Fire Ins. Vt. contrary true, were it would (1975); City 335 A.2d 315 Sambs v. of Brook government to suit in court in the discre- field, (1975); Wis.2d N.W.2d 582 responsible tion of officers. This is Hosp., (Wyo. Collins Memorial P.2d 1339 permissible, (footnote omitted) 1974). F.Supp. 62. 334 at 373. Fidelity In United States v. United States Annot., 68 A.L.R.2d Co., and Guar. 309 U.S. at 84 L.Ed. at said: Id. later case service. But, said, it is there was a waiver of immunity by object juris- a failure to the to 65. 68 A.L.R.2d at diction Missouri over district court the age, tribal not of waiv- funds would harmed. lucid examination We particularly A is in coverage analogy found that this is think deficient for through insurance sev- er First, Consoli- ignores eral reasons. it the fact Broadlands Thomas that Dist., Ill.App. premiums School insurance tend to rise dated after examining the Second, After the paid. policy claims been N.E.2d in municipal immunity history of management judicial encourage poor would fiscal possible bases Illinois, the found two court rewarding the tribe not pre- which did immunity, namely, principle the such pare possibility for for the the courts may that sued without sovereign cannot be the that recognize sovereign not its claim to immuni- in principle, founded and the consent Thus, its ty. by encouraging tribes those with reasons, pro- that in order to policy public drop discouraging insurance to it and those directed to those public moneys funds tect which not have tribes do insurance from should purposes and governmental funds it, obtaining policy opens gate the the to payment private be diverted uncovered loss if at some point courts at 640. The 109 N.E.2d judgments. tort sovereign immunity that decide defense it, a in the case before that court found is problem particular invalid. is school, against a nei- suit injury personal affairs, in importance since once The operative. was principles of those ther dissipated property judg- is tort concluded: court ments, very replace. it is difficult for the im justifiable reason only cases, municipal the burden from the cost of corporations munity quasi-municipal spread throughout is accidents commu- and unob tort is the sound suit for nity community because the can tax to re- public policy that it is jectionable one However, place the lost most funds. tribes public proper funds and protect public ability do not have tax in similar of tax mon prevent the diversion ty, way poverty because of the individu- funds, to pay school in this case eys, als; lost, once cannot be re- jus There no damage claims. is ment placed. immunity absolute or reason for tification is It no doubt true that the Metla- Their public protected. funds are if the Community purchased katla Indian insur and been the real historical protection has protect ance to itself a court find immunity both for the absolute reason it ing sovereign that could not claim immu quasi- and in Illinois accorded elsewhere We do nity. not believe that waiver of similarly, mu municipal corporations, sovereign immunity implied from should be the exercise of nicipal corporations protect an act was intended to insur Liability governmental function. resources. protects ance, to extent for, funds, reason removes the public essential differences between munici- to, immunity suit.66 thus palities and have led the courts not to tribes act/governmental recognize proprietary necessary principle, Given application sovereign test function municipal analogy between if the determine immunity. As the Fifth Circuit said in apt proper tribes is an corporations Casualty Co. v. National Maryland Citizens lead to the conclusion us which should one Bank, 1966): Cir. 361 F.2d sovereign immunity Community’s fact was Seminole Tribe the extent of insurance waived to enterprise private or com- engaged one of coverage. previously, discussed As character, govern- than mercial rather judicial recognition primary reasons mental, It is in such not material. immunity has been the of tribal Thus, the In- enterprises and transactions the analo- tribal assets. protection of protec- tribes the Indians need dian since the tribal funds is made that gy history of between tion. The intercourse insurance cover- the extent of protected 66. 109 N.E.2d at 640-41. and Indians with whites tribes and

the Indian amended December such need. ... To demonstrates adopted response to the invitation found immunity ap- construe the to suit as not in section 17 of the Reorganization Indian arising on liabilities out plying to suits of Act (Wheeler-Howard of 1934 Act), 25 private transactions would defeat the 477,67 U.S.C. as applicable made § to Alaska Congress in not very purpose relaxing of Native groups by the May 1,1936, Act of namely, immunity, protection the the of U.S.C. 473a. § Section of the Charter sets property and of the tribes the interests forth purpose the as follows: individual Indians. and the In order to enable the Community and its holding we conclude that a Similarly, members to do various kinds of business Community’s Metlakatla Indian sover- welfare, their common the Communi- eign immunity was waived to the extent of ty hereby chartered corporation as a of coverage operate its insurance would to de- the United States of America under the purpose immunity. of feat name of ‘Metlakatla Indian Community.’ (emphasis added) the last remaining We now reach issue in case, namely, effect of a “sue and powers Section 4 sets forth the of corpo- corporate sued” clause in the charter be of states, ration part: and Indian Community. the Metlakatla After corporation shall power have the to parties’ original filed, briefs had been following do the things: [s/c] this court ordered that the corporate char- ter of the Metlakatla Indian Community be sued;’ ‘To sue and be part appeal made of the record on and that parties be allowed to submit supplemen- tal briefs on the effect of the “sue and be The Community adopted also a Constitu- on the Community’s sued” clause assertion tion By-Laws pursuant and to 16 of § sovereign immunity. Indian Reorganization Act of The Corporate Charter of the Metlakatla 476.69 In Preamble, § it is stat- Community, ratified December ed: provides: (1962), 67. 25 U.S.C. Community passed § Resolution 75-3 sought provision to amend this to Tribes; read: Incorporation charter, of Indian ratifícation election. To compe- sue and to be sued in courts of Secretary may, upon States; tent Interior within the United Provided, however, petition by sovereign immunity at least one-third of the adult Indians, incorporation issue a charter of from suit shall be deemed only by provided, express waived Community such tribe: That such charter shall resolution of the operative only spe- Council and not become until ratified at a to the extent specified resolution, by majority provided in the cial election vote of the adult fur- ther, grant power living that this on the reservation. sue and to Such char- be Indians may convey sued shall not incorporated be deemed a ter power to the consent tribe the States, power United purchase, by gift, bequest, exercise of such take or otherwise, own, hold, shall not be deemed a manage, operate, consent or the Com- munity, levy lien, judgment, to the dispose property every description, or upon attachment personal, including power the Commu- real and nity other specially than income or purchase chattels restricted Indian lands and to issue pledged assigned. or exchange corporate in property, therefor interests in However, Secretary since the the Interior powers may and such further approved proposed has not change, corporate incidental the conduct of busi- quoted clause ness, remains as in the law, text. not inconsistent with but no au- sell, thority granted mortgage, shall be provides: 69.25 U.S.C. period exceeding years any for a lease ten Organization tribes; of Indian constitution the land included in the limits of the reserva- bylaws; special election. Any tion. charter so issued shall not be Any tribe, tribes, residing on the except by revoked or surrendered Act of reservation, right same shall have the to or- Congress. ganize welfare, for its common response adopt In appropriate decision in Martinez v. by- constitution and Tribe, laws, Southern Ute 150 Colo. 374 P.2d 691 which shall become effective when rati- support of their therefore, we, Metlakatla Indi- assertion that Now, Reserve, desiring governments 17 corporations § Island dif- of Annette ans entities, availa- ferent petitioners the benefits advantage of have submitted take to Opinions Solicitor, under the acts three Department of the communities to Indian ble Interior, May (Nov. and June of No. M-36515 of Congress of 1958), (Dec. 1958) freedom and enjoy greater No. M-36545 and to No. (Feb. 14, 1952). our affairs handling Opinion M-36119 in the No. opportunity problems of our 36119dealt with two for the welfare contract- in providing ing. The establish this Con- first involved a tribe which ordain and had do people organized Indian Com- under both the Metlakatla and 17. The §§16 stitution Reserve. permits Annette Islands Solicitor concluded that “section 17 munity of the the Secretary grant incorporated tribes Community’s Constitution The Metlakatla far-reaching powers respect with to the establishing the deal with By-Laws conduct of business activities.” M-36119at the tribal and functions of structure 3. The problem second involved a tribe dis- previously manner in a government adopted which had a constitution under cussed. incorporated but had not under § § must be question which The threshold instance, In that opined the Solicitor or not the “sue and be is whether answered grant since 16 did not any pow- tribe § to the case at bar. applicable clause is sued” with respect operations, ers to business then we is in the affirmative the answer If would be necessary comply with the re- the effect of the further determine must quirements of section 2103 of the Revised conclude, from a three- Petitioners clause. Statutes, (1946), 25 U.S.C. a section § reach the that we need not step analysis, prescribing requirements several essential the “sue and be the effect of question of to the formation a valid contract with an Community’s sovereign clause on the sued” Indian tribe. out, first, They immunity. point concerned, Opinion part, M-36545 in No. charter, corporate of the part clause as to whether tribal resources 17 of the Indian pursuant adopted § governmental were held as an asset of the Second, they argue Act. Reorganization unit, organized under 16 or as an asset of § organization tribal under Indi- that the corporation organized the tribal business Act is bifurcated—the Reorganization under 17. The wrote: Solicitor aspects being treated under governmental land, thereon, If this corporate aspects or the timber 16 and the business Finally, they effectively not been transferred or con- being treated under § alleged veyed corporation, to the tribal it is not a position that the acts take asset, corporate only in the case at bar concern and remains negligence aspects organi- organization of tribal of the constitutional of the governmental analysis has tribe. For a petitioners’ study legal think recent zation. We municipal distinction between tribal merit. by majority vote of the adult members also following rights tied vest in such tribe or its tribal council the tribe, residing powers: employ legal or of the adult Indians To of the on such special be, counsel, reservation, fixing may the choice of counsel and the case at a approval prevent and called fees to be to the election authorized sale, Interior; Secretary Secretary rules of the Interior under such lease, disposition, lands, may prescribe. regulations as he Such or encumbrance tribal and constitution and lands, bylaws, ratified as interests in or other tribal assets when tribe; Secretary approved the consent of the and to ne- without aforesaid and Federal, State, Interior, gotiate with an election and local shall be revocable Secretary open of the Interior same voters and conducted Governments. shall advise such original council of constitution and tribe or same manner as the appropriation bylaws. estimates or Federal all projects prior powers for the benefit of the tribe In addition to all vested law, by existing the submission of such estimates to the Bu- council Indian tribe or tribal the constitution Budget Congress. adopted by reau of the and the said tribe shall reservation, corpo- the same and a business for their common Government ration, M-36515, Opinion see Solicitor’s provided welfare. It their political or- Ordinarily it November dated ganization. purpose of a that a transaction is safe to assume enacting section 17 of Reorga- the Indian transaction ‘organized tribe’ is a so-called Act empower nization was to the Secre- municipal corporation, the tribal tary to issue a charter of business incor- economic have as broad or broader poration such tribes to enable them to coun- corporation as its business powers through conduct business this modern de- documentary evidence Unless terpart. vice, which charter cannot be revoked or conveyance as a to the business cor- such except by Congress. surrendered act of agreement, by poration or contractual corporation, although composed of otherwise, gives or the business resolution the political body, same members as the re- corporation agency proprietary an separate entity, to be a and thus more lationship property, to certain can be capable obtaining credit and otherwise corporation the is not di- assumed tribe, the expediting business of the while rectly involved. Where the removing possibility the of federal liabili- involved are created tribal funds ty for activities of that nature. As a involving then transactions corporation result, powers, privileges respon- governed by provi- resources are such of these organizations sibilities tribal ma- many consti- charter. Since sions differ. terially by refer- incorporate and charters tutions other, provisions of each ence at Int.Dec. 484. similar for power is often appropriate The legislative history of the Re- Indian entities, omitted) legal (footnote both organization Act, referred Opinion to in M- at 2. M-36545 original is instructive. The Wheeler- M-36515, Deci- Opinion No. 65 Interior Bill, Howard H.R. 7902 and S. 73d to the opinion most relevant sion Cong., provided for a single enti- chartered bar. The of Indian issue at Commissioner ty powers with all of government and such requested opinion Affairs had an as to corporate privileges organization as were organized pursuant an Indian tribe whether necessary for effective tribal structure.70 Reorganization Indian Act discussions, In committee suggested legal same entity was the tribal type organization would not corporation pursuant chartered 17. suit the realities of Indian problems, pri- Opinion reviewed M-36119 Solicitor marily difficulty because in obtaining 14,1952), (February dealing with contractu- given recognized sovereign credit im- powers, al then went on to examine the munity of tribes.71 The Report Senate legislative history Reorganiza- of the Indian bill, on the completely S. redrafted which, asserted, tion Act he “makes clear distinguished purposes of stabilization organization the distinction between the governmental organization of tribal municipal government an under sec- Indian modernization of tribal economic activities .

tion 16 and that of business through corporate structure.72 under the act.” corporation section 17 of concluded: the legislative The Solicitor Based on history Reorganization Act, it is purpose apparent of Congress enacting Reorganization separate legal 16 of the envisioned two section Act was to facilitate entities and to stabilize in sections 16 and 17 of the Act. organization residing on Indians One commentator has stated: Self-Government, supra 72. S.Rep. Cong., (1934). 70. Tribal note No. 73d 2d Sess. Hearings Cong., on H.R. 73d 2d Sess. get is dif- ‘This bill . . . seeks to away a charter adopting purpose from the bureaucratic control of the Indi- a constitu- adopting than that ferent Department, and' it seeks further to- being more tion, oriented the charter give the Indians the control of their own governmental than toward ward business property; put affairs and of their own omitted) (footnote organization.73 it in the hands either of an Indian Council recognized the difference also Felix Cohen corporation or in the hands of a to be stating: in the entities organized by the Indians.’75 pursuant adopted constitutions Tribal argue Petitioners the use of the dis- be distin the act must 16 of to section “or,” in the junctive, suggests above pursuant issued charters guished from separateness of the entities.76 determine, pri The former section authority relating The decisional tribe in which the manner marily, effect of a “sue and be sued” clause has not existing on based powers exercise shall differentiated between section 16 entities ; charters, . . . law and section 17 entities. In Martinez power grants of hand, new involve other Tribe, (Colo. Ute 374 P.2d 691 Southern .74 1962), organ Ute Tribe had Southern paucity is a However, that there we note sections; pursuant ized to both a “sue and separateness authority on decisional corpo be sued” clause was contained in the to sections organized pursuant entities seeking rate charter. Martinez was an ad Reorganization Act. of the Indian and 17 judication that she was a member of both in Mescalero language to point Petitioners corporation. tribe and The trial court dis 145, 151, Jones, U.S. Tribe Apache subject- missed the action based on lack of 114, (1973), 1272, 36 L.Ed.2d jurisdiction. Supreme The matter Court of stated: Court Supreme in which reversed, saying: Colorado Reorganiza- Unquestionably, [Indian incorpora- by adopting defendant policy of a new Act reflected tion] and tion under 25 U.S.C.A. [sic] put a and aimed Government Federal consenting sue and be sued in courts of through lands of tribal the loss halt jurisdiction within the competent United Secretary of the gave It allotment. States, rendered itself amenable to new reserva- to create power Interior in any courts of the of Colorado State to revi- encouraged tions, tribes were and courts take action of which the state through the self-government their talize to the state cognizance. It has recourse bylaws and and adoption of constitutions rights its own protection courts for the corpo- chartered creation of through the to those and is answerable in said courts the busi- to conduct power with rations it.77 who assert claims tribe, economic affairs ness and However, charter of the corporate omitted) (footnote distinguish be- Ute Tribe did Southern corpo- governmental entity tween a and also cited a statement fact, the section in which entity. rate Wheeler: by Senator made Self-Government, place supra in either a council at the tribe could control note Tribal 73. However, corporation, look- or a but not both. 966. situation, ing 181 tribes at the realities of the However, Cohen, supra note at 330. 74. act, accepted the 161 constitutions and 131 interpreted incor- noted that Cohen should be corporate adopted. Tribal charters have been changing of the tribe poration the structure as Thus, Self-Government, supra note at 972. legal entity. supplying additional rather than tribes, many necessarily like the follows that it Metlakatlans, See id. at organized under both sec- tions. at 36 L.Ed.2d 93 S.Ct. 411 U.S. at P.2d at 694. 77.374 grammatical sentence structure 76. The position supports con- that Wheeler also alternative, e., templated i. an exclusive “sue and be sued” clause is found be- focused on the need to protect Indian com- gins: mercial enterprises and found that the fact Tribe, subject restrictions Seminole Tribe was engaged in

contained in the Constitution laws of such an enterprise was not material.80 States, the Constitution Thus, United apparent the Fifth Circuit Tribe, Bylaws of the said shall have would have been even more receptive to following corporate powers, in addi- recognition of immunity with respect powers already tion to all conferred or governmental acts.81 guaranteed by the Tribal Constitution view, In our govern section 16 By-Laws . . . .78 mental unit and the section corporate Casualty Maryland Co. Citizens Na unit are legal distinct Opinions entities. Bank, 1966), F.2d 517 tional Cir. the Solicitor are weight entitled to repre denied, cert. senting the given construction to the stat immunity concerned the L.Ed.2d ute by the executive department charged Florida, Tribe of Inc.79 with re Seminole with its legislative execution.82 The history spect ancillary garnishment to an action Reorganization Act sup also satisfy judgment it. obtained ports a separateness. determination of Ad The main suit arose out of a contract for ditionally, we think a construction which building the construction of an office recognizes legal two entities would be indi an arts and crafts center for the Tribe. cated considerations public of sound poli The Tribe’s charter contained a “sue and be cy. There is little doubt that the claims to proviso sued” clause with sovereign immunity have been allowed in other than income the Tribe or chattels the courts in protect order to the limited pledged assigned especially exempt irreplaceable resources of the levy, lien or attachment. The Fifth tribes large from judgments. However, Circuit held that the action involved in the application strict appeal proviso fell the of the immunity! within and thus principle could immunity severely from retard the found suit. The Fifth Cir tribe’s economic growth opinion cuit’s utilized the canon of in a construc modern business world. Recog expressions tion that doubtful be legal entities, nition of two one with sover resolved in favor of Indians. The court also eign immunity, the other with possibili- the Tribe, cil, in Martinez v. Southern Ute judge deprivation Quoted and the chief tribal of 374 P.2d at 693. rights. civil The district court held both that the alleged federal court had over incorporated pursuant 79. The Tribe was 17§ Rights violations of the Indian Civil Act and Reorganization the of Act. that the “sue and be sued” clause in the Tribe’s corporate sovereign charter waived the portion Tribe’s 80. 361 F.2d at 521. This of the Fifth immunity. opinion respon The other quoted cases cited Circuit’s su- dents, Tribe, pra. Pambrun F.Supp. v. Blackfeet 400 (D. 1975), Enterprise 1394 Mont. and Elec. Co. Respondents have directed us to other cases Indians, F.Supp. Blackfeet Tribe of 353 involving “sue and be sued” clauses. Fonte (D. Mont.1973), resulted in dismissals of feder Tribe, (8th nelle v. Omaha 430 F.2d 143 Cir. jurisdictional grounds. al actions on 1970), quiet involved a title action the despite courts held in those two cases that “sue respect Tribe with Omaha to land formed clauses, and be sued” the federal courts lacked meandering the of the Missouri River. The jurisdiction because the cases were not federal Eighth by adopting Circuit held that a “sue and diversity cases. charter, corporate be sued” in its clause Omaha Tribe “rendered itself amenable to a 82. See, g., Jackson, e. United States v. 280 U.S. quiet title action.” 430 F.2d at 147. The 183, 193, 143, 146, 50 S.Ct. 74 L.Ed. very Maryland clause was similar to the one in (1930); Assiniboine & Sioux Tribes v. Nord Casualty. The court did not discuss the char wick, 1967), 378 F.2d Cir. cert. tering process or even mention the Indian Re denied, 19 L.Ed.2d Dann, organization Act. Brunette (1968). Davis, See also K. Administrative F.Supp. (D.Idaho 1976), involved a suit Law Treatise 5.06 justice an associate tribal the Sho Tribe, shone-Bannock the tribal business coun tribes; thus, en- an we hold immunity, would that Communi- of that for waiver ty use ty possesses immunity. make maximum tribes to We have sovereign able corpo- property property. 1360(a) that further determined 28 U.S.C. their an risk, in presumably be at would does not constitute a waiver of ration tribal sover- with satisfy those necessary to amount eign immunity. we Similarly, have con- spheres. in economic tribe deals whom the Community’s purchase cluded that be could Yet some insurance does not waive liability its sover- reserve, exe- judgment safe from kept in eign immunity. light In our conclusion liveli- destroy the tribe’s which could cution tribal governmental units and the hood, recognition special status organized corporations pursuant Tribe.83 the Indian 16 and respectively, sections the Indi- Reorganization Act of are separate that section Having determined legal entities we concluded that corpora and governmental units section corporate “sue and be clause in the sued” entities, must be separate legal tions are Community charter of the has no effect on in the aspect is involved determined Thus, the suit involved in this matter. we subject of the suit is the litigation superior reverse and remand court negli The acts petition. in this involved summary for entry judgment in favor of all with alleged complaint in the deal gence petitioners the first two counts of on the Communi police the actions respondent’s complaint. complaint also training of them. The ty’s “public was Community alleged that Justice, dissenting. BOOCHEVER, Chief law federal organized under corporation most, if func exercising not all majority opinion I dissent borough Alaska.” city tions of Although the courts this case. Thus, alleged in that the acts we conclude my support little provide commentators func governmental complaint relate doc- outmoded I believe position, Therefore, we hold that the “sue tions. inapplicable immunity trine of litiga no effect clause has be sued” sum- motion for case, in this the instant case. tion in granted. improperly mary judgment conclusion, we have determined that 1360(a)1 juris- confers Title U.S.C. § the Metlakatla Indian should courts over civil causes diction on Alaskan the as Indi- accorded same treatment other However, aspect Implicit since the issue in these conclusions is our determi- tribe. Fontenelle, not we do cases, Martinez, in Maryland discussed not that the Cas- nation precedent appropriate for resolution ualty persuasive consider of the issue and Fontenelle are either at bar. distinguishable in the case the at or are We do not find Martinez case bar. persuasive, primarily 1360(a) 1. 28 § states: the Colorado Court does not because jurisdiction the difficult issues inherent in a case of address State civil in to which actions However, readily parties that kind. Martinez also Indians are (a) distinguishable; it involved suit Each of tribe the States or Territories listed governmental corpo- jurisdiction following the in table have which had mixed the shall thus, corporate in rate entities at the charter and over civil causes of action between Indians or immunity parties arguably, to the are least had waived all which Indians which arise bar, clause, country opposite purposes. In of the case areas Indian listed terms, only corporation. Mary- Territory applies to the name of State or Casualty Territory such State or land ly involved actions were clear- same extent that action, nature; thus, jurisdiction corporate over other civil causes of of a even under the here, the and those ry laws of such State Territo- distinction articulated subject tribe would be civil or general application private more are to suit. Fontenelle is difficult to of to rights persons private distinguish property because involved to land or shall have may property have been the of either same force and effect within such Indian which 176 view, parties my In for permitting Indians are reasons

of action to which immunity involving case waiver of in eases country. civil arise in Indian Since rights equally applicable to tort action. category, within Alaskan falls governmental Both involve the of conduct have to determine courts whether, officials of the tribe and can result in mone- sovereign immunity the doctrine judgments. tary Additionally, I believe To make this determina- bars this action. that both actions brought be in state tion, to initially I would look 25 U.S.C. court.5 1302,2 Rights, by way Bill of Indian § prohibits section Indian analogy. integrity vitality of tribal self- rights in their abridging civil tribes from government will be no more impaired by Although self-government. exercise allowing by permitting tort suits than ac- waive the immu- expressly does not statute Furthermore, just tions under as § tribes, such waivers have been nity of Indian Bill of Rights could be con- Moreover, damages claims strengthen self-govern- inferred.3 sidered to by assuring upheld.4 1302 have been ment the liberties of its individ- under country they (8) deny any person jurisdic- elsewhere within within its Territory: or equal protection State tion the of its or de- laws prive any person liberty State or or with- Territory country process law; out due affected (9) any pass post bill of attainder ex or country Alaska .All Indian Territory within law; facto or (10) deny any person accused of an of- punishable by imprisonment right, fense provides: 2.25 U.S.C. upon request, by jury to a trial of not less rights Constitutional persons. than six exercising powers No Indian tribe in Leekity, (D.N. F.Supp. 3. Loncassion v. self-government shall— M.1971). applying analy Other cases a similar (1) any prohibiting make or enforce law Dann, F.Supp. sis include Brunette v. (D.Idaho 1976); religion, abridging free exercise of Wilson, Means v. 522 F.2d 833 speech, press, freedom of or of the or the (8th 1975); Dry Lodge, Cir. v. Creek Inc. Unit right people peaceably assemble States, 1973); (10th ed 515 F.2d 926 Cir. John petition grievances; for a redress of son Lower Elwha Tribal of Low (2) right people violate the be Reservation, Washington, er Elwha Indian houses, persons, papers, secure in their (9th 1073); F.2d 200 Cir. Wiliams v. Sisseton- effects unreasonable sei- search and Council, Wahpeton F.Supp. Sioux Tribal zures, warrants, upon probable nor issue but (D.S.D.1975). See also Fontenelle v. cause, supported by affirmation, oath or Nebraska, Tribe Omaha F.2d 143 particularly describing place 1970). Fontenelle, interpreted Cir. the court person thing searched and the to be provisions of 25 U.S.C. 345 as a waiver of seized; sovereign immunity. That section creates a (3) subject any person for the of- same any person cause of action in district court for put jeopardy; fense to be twice alleges who blood unlawful denial (4) compel any person criminal case or exclusion from an allotment. against himself; to be witness (5) any private property public take for a Cloud, (D.N.D. F.Supp. 4. See Lohnes just compensation; use without 1973); Leekity, F.Supp. Loncassion v. (6) deny any person pro- to ain criminal (D.N.M.1971). ceeding right trial, speedy public the to a and to be informed the of nature and the cause of alleged 5. Plaintiffs below an additional cause of accusation, to be confronted with the wit- 1302, claiming action based on U.S.C. § that him, against compulsory proc- nesses to have policemen conspired the Metlakatla to violate favor, obtaining ess for witnesses in his and rights. superior their civil court concluded expense at his own the assistance of jurisdiction that state courts lacked to hear this defense; counsel for his Although appeal claim. no was taken from bail, (7) require impose excessive exces- ruling, that I believe that §a 1302 action is a fines, punish- sive inflict cruel and unusual “civil action or between Indians to which Indi- ments, impose and in no event for conviction parties” scope and ans falls within the any any penalty punish- one offense or jurisdiction granted by to state courts 28 U.S.C. greater imprisonment ment than 1360(a). a term § $500, both; or of six months a fine of or conclusion, I find no reason that Met- members, may have actions tort ual .In the tribe to encouraging salutary effect of differently lakatla should be treated from functions with governmental its perform purposes other Alaskan communities for care. greater liability.- history community reading of the unlike that of other Alaskan Natives majority bolsters policy argument law with suggests case the Indians other states and is an additional of tribal assets protection integration almost total into Alaskan life immunity of the upholding reason in Metla government.9 It is true that argument unper- I find this community. katla Indian Community Egan, 369 U.S. 1360(b)6 prohib- Title 28 U.S.C. § suasive. (1962), 7 L.Ed.2d 562 S.Ct. adjudicating rights courts from its state Supreme United States Court held that fed Therefore, long as property.7 certain regulations permitting eral the use of fish tribe is held in belonging to the property au traps precluded the assertion of state alienation, subject to restraints on or trust However, thority prohibit them. like execution, regardless immune from it is County, Bryan v. Itasca 426 U.S. is al- against community suit whether the Met- (1976),10 48 L.Ed.2d 710 Instead, judgment lowed. lakatia case involved a state pro- by insurance tribe could be satisfied regulatory application laws rather than prohibition against There is no ceeds. permitting private common law causes of insurance, obtaining community’s bodies. against governmental action While fact, of this case indicates the record subjecting governments to “the full likelihood, all was obtained. insurance regulatory powers” may panoply of civil in this by community taken position regarding the legitimate raise concerns con by provi- the policy was dictated litigation self-government,11 of Indian viability with its carrier.8 tinued requiring cooperation sions 1360(b) (c) cooperate The insured shall with the states: 6. 28 U.S.C. company and, upon company’s request, Nothing (b) in this section shall authorize settlements, making alienation, encumbrance, assist in in the conduct or taxation of enforcing any right including of suits and of contribu- any personal property, real or any any any indemnity against person rights, belonging tion or ganization or or- Indian or water tribe, band, community or that is held who liable to the insured Indian in trust restriction by subject injury damage respect or is to a or States because which insurance with United imposed by poli- alienation afforded under States; regulation cy; hearings or shall authorize United and the insured shall attend property such in a manner securing giving of the use of trials and assist in evi- any treaty, agree- inconsistent with ment, Federal obtaining dence and the attendance of wit- any regulation or with made not, or statute except nesses. The insured shall at his thereto; pursuant upon or shall confer cost, any voluntarily payment, any expense own make as- adjudicate, probate pro- the State to any obligation sume or incur otherwise, ownership right ceedings or other than for first aid to others at the time property possession inter- of such of accident. est therein. Community Egan, 9. See Metlakatka recognizes majority in Footnote 59 7. The 556-57, 1360(b) prohibiting alienation or encum- L.Ed.2d property that is of an Indian tribe brance of or is in trust the United States held to a restriction Bryan brought action a reser- involved an imposed on alienation seeking a declaration that the vation Indian the same interest United States “serves authority personal county impose lacked e., serves, immunity i. the doctrine the property tax on his mobile home located on preservation of tribal trust Narrowly interpreting land held in trust. ” strong It seems to me that a ‘encumbrances.’ argument may 1360(a), reversed the de- § cision below and held that the had no be made that grant jurisdic- statutory immunity if it had need to insert such applicability tion and of of state laws did not brought could be not intended that suits grant authority to tax. also state authority Indian tribes under 1360(a). 11. 426 U.S. at at 721. L.Ed.2d policy states: statute, not appear posed by by to be been established but is a do threats such actions. such, tort federally court-made doctrine.13 As private permitting by is to modification the federal is remi- by the court adopted position courts and also to determinations as to its sovereign upholding cases niscent applicability particular facts circum- The need municipalities. immunity stances. There has been no federal decision the ba- part explained on immunity was applicability as to the of the doctrine to corporate funds were no (1) there that: sis sovereign immunity involving suits obtained; could be satisfaction of which out brought by Indians for torts of the Metla- profit no derives municipality (2) the katla and of the community, applicability of functions, government exercise litigation. 1360 to such benefit public for the solely are which suggested disposition dissent in its governments their (3) carry cannot cities recognizes question suit that a federal is public use by raised taxation money if involved, but until that is resolved em- the torts of making good diverted Court, Prosser, Supreme United however: States According to ployees. judgment use its best state court agreed that writers have Virtually all applicable determining the nature of denying liabil- reasons for of these one no federal law. For the reasons outlined sound, be found all of them can ity above, I believe that the doctrine of tribal rejected at one time or been applica- not be sovereign immunity should cases. The cur- in the decided another ble. it is better criticism has been that rent to tortious conduct the losses due that I hold that the suit is not barred would upon municipality fall rather should affirm the immunity and would sovereign individual, injured and that the than decision below. properly public employees

torts regarded, as in other cases of vicarious liability, as a cost of the administration of

government, should be distributed public.

by taxes to the Whether as a not,

result of this criticism or there has steady a marked and trend -the

been municipal

direction of an extension of liability, by finding either tort that SHARP, Jr., by Wayne his father Claude particular activity of the defendant is not friend, Wayne Sharp, and next Claude one, “governmental” by discovering Sr., Sr., Wayne Sharp, and Claude Indi special gen- reasons to take it out of the vidually, Appellants, many years, however, eral rule. For hogtied by were so far bound and courts classifications, existing precedent FAIRBANKS NORTH STAR appeared BOROUGH, real reform Appellee. only the law must come statutes. It is No. 3098. quite recently any general move- of Alaska. ment for alteration of the common law initiated, (footnotes omitted)12 been has Sept. majority impression is under the fed- supremacy this dissent overlooks the pertains

eral law as it to tribal

immunity. sovereign immunity Tribal 13. The doctrine evolved from the case of

12. W. Prosser, Torts, pp. The Law (6 Georgia, Pet.) 1971). Worcester v. ed. L.Ed. 483 notes at rather history is L.Ed.2d at 721. legislative Although the helpful, ap- particularly and not sparce The issue decided jurisdiction section civil that the pears power, presumably was the state’s Bryan with the was consistent because added 1360, to tax the conferred 28 U.S.C. § formulat- policies federal pro-assimilationist property of some individual Indi- personal

Case Details

Case Name: Atkinson v. Haldane

Court Name: Alaska Supreme Court

Date Published: Sep 16, 1977

Citation: 569 P.2d 151

Docket Number: 2981

Court Abbreviation: Alaska