JOY SPURR, Plаintiff - Appellant, v. MELISSA LOPEZ POPE, Chief Judge of Tribal Court of Nottawaseppi Huron Band of the Potawatomi; SUPREME COURT FOR THE NOTTAWASEPPI HURON BAND OF POTAWATOMI; NOTTAWASEPPI HURON BAND OF THE POTAWATOMI, Defendants-Appellees.
No. 18-2174
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: May 1, 2019; Decided and Filed: August 26, 2019
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 19a0214p.06
Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:17-cv-01083—Janet T. Neff, District Judge.
Before: DAUGHTREY, COOK, and GRIFFIN, Circuit Judges.
COUNSEL
ARGUED: Stephen J. Spurr, Grosse Pointe Park, Michigan, for Appellant. David A. Giampetroni, KANJI & KATZEN, PLLC, Ann Arbor, Michigan, for Appellees. ON BRIEF: Stephen J. Spurr, Grosse Pointe Park, Michigan, for Appellant. David A. Giampetroni, KANJI & KATZEN, PLLC, Ann Arbor, Michigan, William Brooks, NOTTAWASEPPI HURON BAND OF THE POTAWATOMI, Fulton, Michigan, for Appellees.
COOK, Circuit Judge. Most family spats end long before a court gets involved. This one did not, however, and an Indian tribal court eventually issued a protection order against Joy Spurr, the stepmother of a tribal member. But our review involves no probing of the facts, just a pure question of law: Does a tribal court have jurisdiction under federal law tо issue a civil personal protection order against a non-Indian and non-tribal member in matters arising in the Indian country of the Indian tribe? Because
I.
Joy Spurr is the stepmother of Nathaniel Spurr, a tribal member of the Nottawaseppi Huron Band of the Potawatomi (NHBP), a federally recognized, sovereign Indian tribe located in Fulton, Michigan. Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 83 Fed. Reg. 34863 (July 23, 2018). In February 2017, Nathaniel sought an ex parte personal protection order (PPO) from the NHBP tribal court, alleging that Spurr engaged in a campaign of harassment against him that included, among many other things, unwanted visits to Nathaniel‘s residence on the NHBP reservation and several hundred letters, emails, and phone calls. R. 22-3, PageID 268–81. The tribal court issued the ex parte PPO.
That same month, the tribal court held a hearing to determine whether to make the PPO “permanent“—in other words, to make it last one year. After considering witness testimony, other evidence, and the parties’ arguments, the tribal court issued a permanent PPO against Spurr. This PPO swept broadly, prohibiting Spurr from cоntacting Nathaniel or “appearing within [his] sight.” R. 1-3, PageID 31. The court later denied Spurr‘s motion to reconsider or modify that order in a thorough, thirty-six-page opinion. On appeal, the NHBP Supreme Court affirmed, holding that tribal law authorizes the tribal court to issue civil personal protection orders against “a non-Indian who resides outside of the boundaries of Nottawaseppi Huron Band Indian country.”
About six months later, Nathaniеl again initiated proceedings in tribal court, claiming that Spurr violated the PPO. After holding two hearings (Spurr did not attend the first) where the parties presented evidence and testimony, the tribal court found Spurr “in civil contempt for violating the
After Nathaniel alleged that Spurr violated the PPO—but before either hearing—Spurr went on the offensive. In federal district court, she sued (1) Melissa L. Pope, the Chief Judge of the NHBP Tribal Court (who issued the PPO), (2) the NHBP Supreme Court (that affirmed), and (3) the Band (a sovereign Indian tribe), seeking a declaratory judgment and injunctive relief. In an order denying Spurr‘s request for a preliminary injunction, the court limited the parties’ motion-to-dismiss briefing to two issues: sovereign immunity and subject-matter jurisdiction. In its joint motion to dismiss, the Tribal defendants argued that Spurr‘s claims against the Band and the NHBP Supreme Court were barred by sovereign immunity and should be dismissed under
The district court held that, under
II.
We review de novo a motion to dismiss under
III.
Spurr‘s briefs present a cornucopia of grievances—sоme reference the Constitution, others the emotional and financial burden of this litigation. But as her opening brief posits, this case involves “a single issue of law“: Did the NHBP tribal court have jurisdiction under federal law to issue this personal protection order against her, a non-Indian and non-tribal member? After first resolving the threshold issue of tribal sovereign immunity, we hold that it did.
A. Tribal Sovereign Immunity
The district court determined that it had federal question jurisdiction over thе claims raised, so it needn‘t address the issue of tribal sovereign immunity. But tribal sovereign immunity is a jurisdictional doctrine. That means we must address it—and must do so first. If it
“Indian tribes are ‘domestic dependent nations’ that exercise ‘inherent sovereign authority.‘” Id. at 788 (citations omitted). That sovereignty includes “common-law immunity from suit traditionally enjoyed by sovereign powers.” Id. (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)). It shields not only an Indian tribe itself, but also “arms of the tribe” acting on its behalf. Memphis Biofuels, 585 F.3d at 921; Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754–55 (1998) (recognizing that the Court has not “yet drawn a distinction between governmental and commercial activities of a tribe“). As the Supreme Court recently reminded us, the baseline rule “is tribal immunity.” Bay Mills, 572 U.S. at 790.
But the Constitution grants Congress plenary control over tribes, and thus the power to abrogate tribal sovereign immunity. Id.; United States v. Lara, 541 U.S. 193, 200 (2004). To do so, “Congress must ‘unequivocally’ express that purpose.” C & L Enters., Inc. v. Citizen Band Potawatomi Tribe of Okla., 532 U.S. 411, 418 (2001) (quoting Santa Clara Pueblo, 436 U.S. at 58); Bay Mills, 572 U.S. at 790. Indeed, Indian tribes remаin separate sovereigns that pre-existed the Constitution, and “courts will not lightly assume that Congress in fact intends to undermine Indian self-government.” Bay Mills, 572 U.S. at 790. “Thus, unless and ‘until Congress acts, the tribes retain’ their historic sovereign authority.” Id. at 788 (quoting United States v. Wheeler, 435 U.S. 313, 323 (1978)).
To support her view that Congress unequivocally expressed the purpose to subject the Band to this suit, Spurr points to
Beyond the text of
Indeed, the Tenth Circuit rejects this same argument. In Miner Electric, plaintiffs sought declaratory and injunсtive relief related to a forfeiture order issued by the Nation‘s tribal court, arguing that the court did not have jurisdiction over them. 505 F.3d at 1008. The Nation moved to dismiss the complaint on sovereign immunity grounds, and the district court denied the motion, reasoning that it had “the authority [under
The district court here, in implicitly reasoning otherwise, cited National Farmers Union Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985), specifically the Court‘s statement that “[t]he question whether an Indian tribe retains the power to compel a non-Indian property owner to submit to the civil jurisdiction of a tribal court is one that must be answered by reference to federal law and is a ‘federal question’ under
The Court in National Farmers went no further, resolving that petitioners needed to first exhaust their tribal court remedies before a federal cоurt could entertain the claim. See El Paso Natural Gas. Co. v. Neztsosie, 526 U.S. 473, 478 (1999) (explaining that National Farmers announced the “tribal-court exhaustion” rule). In fact, the Supreme Court has expressed doubt that
We reject Spurr‘s reliance on
B. The Source of Tribal Jurisdiction
Having dispensed with Spurr‘s claims аgainst the Band and NHBP, only the claims against Chief Judge Pope remain. The Band explicitly waived sovereign immunity as to the Chief Judge, so we finally get to the meaty question of whether federal law vests the NHBP tribal court with jurisdiction to issue this personal protection order against Spurr.
Indian tribes have the “right to make their own laws and be governed by them.” Nevada v. Hicks, 533 U.S. 353, 361 (2001). This inherent sovereign authority includes the power to determine tribal membership, regulate relations among its members, and punish tribal offenders. Id. But this authority generally “do[es] not extend to the activities of nonmembers of the tribe.” Montana v. United States, 450 U.S. 544, 565 (1981); Hicks, 533 U.S. at 359. When it comes to non-Indians and nonmembers, the “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegаtion.” Montana, 450 U.S. at 564; see South Dakota v. Bourland, 508 U.S. 679, 695 n.15 (1993). Thus, to exercise tribal authority over nonmembers, an Indian tribe must point to one of two sources of power: its inherent sovereign authority or an Act of Congress. Hicks, 533 U.S. at 360; Strate v. A-1 Contractors, 520 U.S. 438, 445–46 (1997).
The parties argue only the second source, focusing their arguments on different statutes, both enacted as part of the Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, 127 Stat. 54 (2013). The Band argues that
“A matter requiring statutory interpretation is a question of law requiring de novo review, and the starting point for interpretation is the language of the
1. 18 U.S.C. § 2265(e)
As argued by the Band,
(e) Tribal court jurisdiction.--For purposes of this section, a court of an Indian tribe shall have full civil jurisdiction to issue and enforce protection orders involving any person, including the authority to enforce any orders through civil contempt proceedings, to exclude violators from Indian land, and to use other appropriate mechanisms, in matters arising anywhere in the Indian country of the Indian tribe (as defined in section 1151) or otherwise within the authority of the Indian tribe.
But Spurr does dispute whether this PPO is a civil protection order. She suggests that the tribal court here issued a criminal protection order, an action not authorized by
The NHBP Code authorizes a tribal court to issue a “civil protection order,” NHBP Code § 7.4-49, on behalf of “any person claiming to be the victim of . . . stalking,” NHBP Code § 7.4-50. And the Code also states that “[t]his article is intended to provide victims [of harassment] with a speedy and inexpensive method of obtaining civil harassment protection
orders preventing all further unwanted contact between the victim and the perpetrator.” NHBP Code § 7.4-71 (emphasis added).
In granting the PPO, titled “Personal Protection Order (Non-Domestic) (Stalking),” the tribаl court found that Spurr engaged in “conduct prohibited under the [NHBP] Domestic Violence Code.” R. 1-3, PageID 31. And the PPO‘s text states that Nathaniel‘s petition “has been filed and is enforceable under the authority of . . .
On appeal, after wrestling with this inartful drafting and Spurr‘s arguments, the NHBP Supreme Court held that the Tribal Code authorizes tribal courts to issue civil PPOs for stalking or harassment, which includes the PPO issued here. R. 22-2, PageID 258–59. And “[o]rdinarily, we defer to tribal court interpretations of tribаl law ‘because tribal courts are best qualified to interpret and apply tribal law.‘” Kelsey v. Pope, 809 F.3d 849, 864 (6th Cir. 2016) (quoting Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16 (1987)).
But even without this decision from the Band‘s highest court, Spurr‘s argument falls short. The tribal court‘s decision to issue the PPO explicitly to prohibit stalking supports the conclusion that the court issued a civil PPO on behalf of a “victim of . . . stalking,” NHBP Code § 7.4-50. So does its express statement that the petition was filed and enforceable under
That leaves us with Spurr‘s contention that the penalties for violating the PPO and its restrictions on her “freedom of movement and communication” make it criminal in nature. The PPO states that “[v]iolation of this order subjects [Spurr] to immediate arrest and to the сivil and criminal contempt powers of the court. If found guilty, the respondent shall be imprisoned for not more than 90 days and/or may be fined not more than $1,000.00.” R. 1-3, PageID 31. But the fact that Spurr faces criminal contempt or imprisonment if she violates this PPO fails to change the nature of the order. See United States v. Bayshore Assocs., Inc., 934 F.2d 1391, 1400 (6th Cir. 1991) (“Incarceration has long been established as an appropriate sanction for civil contempt.“); Smith v. Leis, 407 F. App‘x 918, 920 (6th Cir. 2011) (noting that the Shеriff‘s Office arrested the defendant for “violating the terms of a civil protection order“). The same goes for its restrictions on her movement and communication. See Morrison v. Warren, 375 F.3d 468, 470 (6th Cir. 2004) (civil protection order issued against husband for allegations of domestic abuse prohibited him “from possessing, using, carrying, or obtaining any deadly weapon for up to five years“); Kelm v. Hyatt, 44 F.3d 415, 417–18 (6th Cir. 1995) (domestic violence victim sought and obtained a civil proteсtion order requiring her husband to “vacate the marital residence“).
The Band notes that it modeled its civil PPO‘s language after the Michigan statute authorizing a state court to issue civil PPOs under state law for stalking. The Band even went so far as to copy Michigan‘s list of restricted conduct. Compare R. 1-3 | 5, PageID 31, with
Spurr also presses a contextual argument that fares no better. She argues that
Titles “are but tools available for the resolution of a doubt.” Bhd. of R.R. Trainmen, 331 U.S. at 529. Thus, “considering the title is not appropriate unless the statute is ambiguous.” United States v. Cain, 583 F.3d 408, 416 (6th Cir. 2009). And we find no ambiguity here. Section 2265 unequivocally states that tribal courts “shall have full civil jurisdiction to issue and enforce protection orders involving any person.”
2. 25 U.S.C. § 1304
That brings us to Spurr‘s argument that an entirely different statute,
(i) resides in the Indian cоuntry of the participating tribe;
(ii) is employed in the Indian country of the participating tribe; or
(iii) is a spouse, intimate partner, or dating partner of—
(I) a member of the participating tribe; or
(II) an Indian who resides in the Indian country of the participating tribe.
Spurr argues that, because she meets none of these criteria, the tribal court had no authority to issue the PPO against her.
But the tribal court did not exercise its “special domestic violence jurisdiction.” Not one of
Spurr insists that
(A) mean[] any injunction, restraining order, or other order issued by а civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence against, contact or communication with, or physical proximity to, another person; and
(B) include[] any temporary or final order issued by a civil or criminal court . . . if the civil or criminal order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection.
Because
IV. CONCLUSION
We AFFIRM the district court‘s judgment.