Trenton Indian Housing Authority v. Poitra

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
APRIL 28, 2022
STATE OF NORTH DAKOTA

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2022 ND 87

Trenton Indian Housing Authority, Plaintiff and Appellee
v.
Lisa Poitra, Defendant and Appellant
and
All Other Unknown Occupants, Defendants

No. 20210302

Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Joshua B. Rustad, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Jordon J. Evert (argued) and Dustin A. Richard (on brief), Williston, ND, for
plaintiff and appellee.

Alexander S. Turner , Minot, ND, for defendant and appellant.
 Trenton Indian Housing Authority v. Poitra
No. 20210302

Jensen, Chief Justice.

[¶1] Lisa Poitra appeals from an order of eviction arguing that the district
court lacked jurisdiction to enter the eviction order because the Trenton Indian
Housing Authority (“TIHA”) constitutes a dependent Indian community, and a
contract provision requires the eviction to be handled by the Turtle Mountain
Band of Chippewa Indians Tribal Court. We conclude the record supports the
district court’s finding that TIHA is not a dependent Indian community, the
court’s determination it had subject matter jurisdiction, and the finding TIHA
did not have a contractual obligation to bring the eviction action in the tribal
court.

I

[¶2] Poitra is an enrolled member of the Turtle Mountain Band of Chippewa
Indians (hereinafter “Turtle Mountain”). She lives in a housing unit operated
by TIHA and located within the Trenton Indian Service Area (“TISA”). The
TISA is approximately 240 miles away from the Turtle Mountain reservation.

[¶3] TIHA initiated this eviction against Poitra in the North Dakota district
court. Poitra asserted the state court lacked subject matter jurisdiction and
moved to dismiss the eviction action. The court denied Poitra’s motion to
dismiss.

[¶4] During the subsequent eviction hearing, Poitra renewed her motion to
dismiss for a lack of subject matter jurisdiction. The district court granted the
request to provide additional briefing on the issue. The court entered an order
denying the motion to dismiss and granting an eviction.

[¶5] Poitra’s primary contention is that the district court erred in determining
TIHA is not a dependent Indian community subject to tribal court jurisdiction,
rather than state court jurisdiction. In denying Poitra’s motion to dismiss, the
district court conducted a four-factor analysis under United States v. South
Dakota, 665 F.2d 837 (8th Cir. 1981), as well as a two-factor analysis under

1
Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998),
and concluded TIHA does not constitute a dependent Indian community and is
not Indian country. Poitra raised a second issue related to a contract provision
between Turtle Mountain and TIHA. The court did not analyze the contract
provision after finding the determinative issue to be whether or not TIHA was
a dependent Indian community.

II

[¶6] Poitra argues that the district court erred in determining TIHA is not a
dependent Indian community constituting “Indian country,” and a contract
provision requires the case be heard in Turtle Mountain tribal court. Both
issues are asserted by Poitra as challenges to the state court’s subject matter
jurisdiction. Our standard of review is as follows:

Subject-matter jurisdiction cannot be conferred by agreement,
consent, or waiver, and issues involving subject-matter jurisdiction
can be raised by the court or a party at any time in a proceeding.
When the jurisdictional facts are not in dispute, we review the
district court’s decision on subject-matter jurisdiction de novo. If
the underlying jurisdictional facts are disputed, this Court is
presented with a mixed question of law and fact, and we review
the question of law de novo and the district court’s findings of fact
under the clearly erroneous standard of review. A finding of fact is
clearly erroneous if it is induced by an erroneous view of the law,
if no evidence exists to support it, or if, upon review of the entire
record, this Court believes a mistake has been made.

Gustafson v. Poitra, 2018 ND 202, ¶ 6, 916 N.W.2d 804 (quoting Fredericks v.
Fredericks, 2016 ND 234, ¶ 6, 888 N.W.2d 177).

[¶7] Poitra contends the jurisdictional facts are not in dispute and the
question of subject matter jurisdiction should be reviewed de novo. TIHA
argues that Poitra’s argument places facts in dispute, and a mixed standard of
review should be utilized. Poitra’s challenge to the district court’s subject
matter jurisdiction in this case gives rise to factual disputes requiring a mixed
standard of review, including the exact status of the land at issue. For example,
Poitra argues the TIHA land was set aside by the federal government while

2
TIHA argues it was not set aside by the federal government. Because the
underlying jurisdictional facts are disputed, we utilize a mixed standard of
review to resolve the issues on appeal.

III

[¶8] Poitra’s assertion the state court lacks subject matter jurisdiction is
dependent upon a determination of whether the land is Indian country subject
to tribal court jurisdiction. Section 1151, 18 U.S.C., defines “Indian country.”
“The definition of Indian country is found in the federal criminal code. [ ]
Nonetheless, this definition ‘applies in the civil context as well.’” Lavallie v.
Jay, 2021 ND 140, ¶ 15, 963 N.W.2d 287 (internal citation omitted). Section
1151, 18 U.S.C., provides:

Except as otherwise provided in sections 1154 and 1156 of this
title, the term “Indian country”, as used in this chapter, means (a)
all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running
through the reservation, (b) all dependent Indian communities
within the borders of the United States whether within the
original or subsequently acquired territory thereof, and whether
within or without the limits of a state, and (c) all Indian
allotments, the Indian titles to which have not been extinguished,
including rights-of-way running through the same.

[¶9] “Unless federal law directs otherwise, ‘[a] state ordinarily may not
regulate the property or conduct of tribes or tribal-member Indians in Indian
country.’” Lavallie, 2021 ND 140, ¶ 13 (quoting F. Cohen, Handbook of Federal
Indian Law § 6.03[1][a], at 511 (2012)). The parties agree that TIHA is not a
reservation or allotment. The parties also agree that the land is not held in
trust by the federal government. The dispositive issue is whether the district
court erred in determining TIHA is not a “dependent Indian community” under
18 U.S.C. § 1151(b).

[¶10] Both parties rely on the cases of Narragansett Indian Tribe of Rhode
Island v. Narragansett Electric Company, 89 F.3d 908 (1st Cir. 1996), United
States v. South Dakota, 665 F.2d 837 (8th Cir. 1981), and Alaska v. Native

3
Village of Venetie Tribal Government, 522 U.S. 520 (1998) in their arguments
of whether TIHA is a dependent Indian community and therefore “Indian
country.” In Alaska, the United States Supreme Court articulated a two-part
review to determine what constitutes a dependent Indian community:

We now hold that [dependent Indian community] refers to a
limited category of Indian lands that are neither reservations nor
allotments, and that satisfy two requirements—first, they must
have been set aside by the Federal Government for the use of the
Indians as Indian land; second, they must be under federal
superintendence.

522 U.S. at 527. We understand Alaska to be binding precedent, and we
accordingly apply the Alaska two-part test to resolve the issues presented here.
This Court previously considered the land around Trenton, North Dakota. See
State v. Gohl, 477 N.W.2d 205 (N.D. 1991). In Gohl, this Court noted the
following:

As the area around Trenton is not within the confines of an Indian
reservation, this issue seems to be whether or not the area could
be deemed a “dependent Indian community,” or, whether or not the
land in the area and where the gaming establishment is situated
is “allotted land.” As Attorney General Nicholas Spaeth noted in a
letter, dated February 15, 1990, to the Williams County State’s
Attorney, both questions are essentially factual in nature. The
record before us discloses few facts relevant to resolving this
matter.

Id. at 208. In Gohl we concluded “the record in its present state does not
contain facts from which we could determine whether or not the theft occurred
in ‘Indian country.’” Id.

[¶11] The parties provided analysis of factors such as how federally dependent
the Indian population is, the relationship of the community to the tribe and
the federal government, and the nature of the area in question. The TIHA
Director testified at the eviction hearing and provided testimony on the federal
funding practices, status of the land, Tribal Ordinance 30 (the ordinance at
issue), and whether the tribal court would have jurisdiction.

4
[¶12] When a challenge to subject matter jurisdiction is raised, we have held
the moving party has the burden. Lavallie v. Jay, 2020 ND 147, ¶ 6, 945 N.W.2d
288. Our decision in Lavallie was in the context of whether the accident at
issue occurred within “Indian Country.” Id. In Lavallie we concluded as follows:

Who bears the burden of proving a court’s subject matter
jurisdiction is a question this Court has not previously answered.
North Dakota district courts are courts of general jurisdiction. See
N.D. Const. art. VI, § 8; N.D.C.C. § 27-05-06; In re Estate of Brandt,
2019 ND 87, ¶ 20, 924 N.W.2d 762. State courts of general
jurisdiction enjoy a presumption of jurisdiction, and the party
challenging subject matter jurisdiction bears the burden of proving
the court lacks jurisdiction. See Nowlin v. United States, 81
F.Supp.3d 514, 523 (N.D. Miss. 2015); Calvagno v. Bisbal, 430
F.Supp.2d 95, 99 (E.D.N.Y. 2006); Alpine Vill. Co. v. City of McCall,
154 Idaho 930, 303 P.3d 617, 623 (2013); Gruszeczka v. Ill. Workers’
Comp. Comm’n, 372 Ill. Dec. 833, 992 N.E.2d 1234, 1238 (2013);
GKN Co. v. Magness, 744 N.E.2d 397, 403-04 (Ind. 2001); Credit
Acceptance Corp. v. Prevo, 277 So. 3d 847, 851 (La. Ct. App. 2019);
In re John F., 169 Md.App. 171, 899 A.2d 976, 981 (2006); McGrath
v. VRA I Ltd. P’ship, 244 S.W.3d 220, 224 (Mo. Ct. App. 2008);
Quinlan v. Five-Town Health All., Inc., 207 Vt. 503, 192 A.3d 390,
398 (2018); 13 Charles Alan Wright et al., Federal Practice &
Procedure § 3522 (3d ed. 2008).

Lavallie, at ¶ 6.

[¶13] Recognition as a dependent Indian community requires the land be set-
aside by the federal government. Alaska, 522 U.S. 520, 527 (“[F]irst, [the land]
must have been set aside by the Federal Government for the use of the Indians
as Indian land[.]”). Further, section B beginning on page 532 in Alaska, the
United States Supreme Court, in its consideration of the set-aside
requirement, concluded as follows:

[T]hat ANCSA transferred reservation lands to private, state-
chartered Native corporations, without any restraints on
alienation or significant use restrictions, and with the goal of
avoiding “any permanent racially defined institutions, rights,
privileges, or obligations.” [ ] By ANCSA’s very design, Native

5
 corporations can immediately convey former reservation lands to
non-Natives, and such corporations are not restricted to using
those lands for Indian purposes. Because Congress contemplated
that non-Natives could own the former Venetie Reservation, and
because the Tribe is free to use it for non-Indian purposes, we must
conclude that the federal set-aside requirement is not met. Cf.
United States v. McGowan, 302 U.S., at 538, 58 S.Ct., at 287
(noting that the land constituting the Reno Indian Colony was held
in trust by the Federal Government for the benefit of the Indians);
see also United States v. Pelican, 232 U.S., at 447, 34 S.Ct., at 398
(noting federal restraints on the alienation of the allotments in
question).

Id. at 532-33.

[¶14] The Tenth Circuit noted the following with regard to the set-aside
requirement:

What does it mean for the federal government to set aside land for
Indian use and to superintend it? The Court noted that the set-
aside requirement means that there must be “some explicit action
by Congress (or the Executive, acting under delegated authority) .
. . to create or to recognize” the “land in question” as part of a
federally recognized and dependent Indian community. [Alaska]
522 U.S. at 531 n. 6, 118 S.Ct. 948. Through an Act of Congress or
some equally explicit executive action, then, the federal
government must identify the land as “set apart for the use of the
Indians as such.” Id. at 529, 118 S.Ct. 948 (internal quotation
marks omitted) (emphasis in original). So, for example, land
simply conveyed by Congress to individual Indians or tribes that
they are then “free to use . . . for non-Indian purposes” or sell as
they wish does not qualify. Id. at 533, 118 S.Ct. 948. While groups
of Indians may very well live on such lands in socially and
politically discrete communities, they do not live in “Indian
country” because the land in question has not been explicitly set
aside by Congress for use as a “dependent Indian community.” The
superintendence requirement means that the federal government
currently must be “actively controll[ing] the lands in question,
effectively acting as a guardian for the Indians.” Id. This
requirement, too, necessarily excludes lands that the government
has conveyed without restriction to Indians or others because such

6
 lands do not implicate any sense of “guardian [ship],” “wardship[,]
or trusteeship.” Id. (internal quotation marks omitted).

Hydro Resources, Inc. v. U.S. E.P.A., 608 F.3d 1131, 1148-49 (10th Cir. 2010).

[¶15] The Second Circuit has also discussed the set-aside by the Federal
Government requirement. Citizens Against Casino Gambling in Erie Cty. v.
Chaudhuri, 802 F.3d 267, 282 (2nd Cir. 2015). Citing the Tenth Circuit, the
Second Circuit noted the following:

We agree with the Tenth Circuit that “[s]imply put, Venetie held
that Congress—not the courts, not the states, not the Indian
tribes—gets to say what land is Indian country subject to federal
jurisdiction.” Hydro Res., Inc. v. E.P.A., 608 F.3d 1131, 1151 (10th
Cir. 2010) (en banc). In determining whether Congress has
designated land as a “dependent Indian community,” we consider
whether the land bears the dual marks of federal set-aside and
federal superintendence. The set-aside requirement ensures that
the federal government designated the land to serve the interests
of an “Indian community”—the tribe qua tribe—while the
superintendence requirement ensures that the tribe is
“dependent” on the federal government in the sense of being
subject to federal control.

Chaudhuri, 802 F.3d at 282.

[¶16] Poitra had the burden in her challenge to the district court’s subject
matter jurisdiction. Poitra did not provide evidence of any explicit action by
Congress (or the Executive branch, acting under delegated authority) to create
or to recognize the land in question as part of a federally recognized and
dependent Indian community. Applying the two-part Alaska test, the court
found the property was not part of a dependent Indian community. Poitra has
not presented evidence of how, or if, the TIHA land was set-aside by the federal
government for the use of the Indians. Given the lack of evidence to establish
the land had been set aside by the federal government, the district court’s
finding was not induced by an erroneous view of the law, there is evidence in
the record to support the finding, and, after a review of the entire record, we
are not left with a definite and firm conviction that a mistake has been made.

7
The court’s finding the land was not located within a dependent Indian
community was not clearly erroneous and we affirm the court’s finding.

IV

[¶17] Poitra contends that the “contractual agreement” between TIHA and
Turtle Mountain provides that TIHA is required by the United States
Department of Housing and Urban Development [HUD] to include a provision
providing that “Tribal Courts shall have jurisdiction to hear and determine
actions for eviction.” Poitra further argues that Tribal Ordinance 30, the Tribal
ordinance that established TIHA, requires TIHA bring eviction actions in the
tribal court. Tribal Ordinance 30 provides, in relevant part, as follows:

e. The Tribe Government hereby declares that the powers of the
Tribal Government shall be vigorously utilized to enforce eviction
of a tenant or homebuyer for nonpayment or other contract
violations including action through the appropriate courts.

f. The Tribal Courts where appropriate and legal shall have
jurisdiction to hear and determine an action for eviction of a tenant
or homebuyer. The Tribal Government hereby declares that the
powers of the Tribal courts shall be vigorously utilized to enforce
eviction of a tenant or homebuyer for nonpayment or other contract
violations.

[¶18] The district court provided the following analysis of Ordinance 30:
“Ordinance 30 discusses enforcing evictions through appropriate courts.” The
court concluded that no contractual provisions or long-arm statutes required
tribal court jurisdiction.

[¶19] Poitra has not argued a contractual agreement in the context of a choice
of laws, but challenges the subject matter jurisdiction of the North Dakota
district court by asserting Tribal Court jurisdiction is mandated by the
contractual provision. However, as noted in Gustafson, 2018 ND 202, ¶ 6,
“[s]ubject-matter jurisdiction cannot be conferred by agreement, consent, or
waiver[.]” (quoting Fredericks, 2016 ND 234, ¶ 6.) Having concluded the
district court did not clearly err in determining TIHA is not a dependent Indian
community under the two-part test articulated in Alaska, we also conclude a

8
contractual provision, in itself, cannot establish subject matter jurisdiction
with the tribal court.

V

[¶20] Poitra’s challenge to the district court’s jurisdiction in her briefing to this
Court references jurisdiction without specifying whether her challenge
included a challenge to personal jurisdiction. At oral argument, Poitra could
not identify how personal jurisdiction was deficient, but asserted both personal
and subject matter jurisdiction were at issue. Her briefing on appeal does not
offer any guidance to how she believes personal jurisdiction may have been
deficient or offer any argument to support a challenge to personal jurisdiction.
A party abandons an argument by failing to raise it in the party’s appellate
brief. Bearce v. Yellowstone Energy Dev., LLC, 2019 ND 89, ¶ 29, 924 N.W.2d
791. To the extent Poitra contends the court lacked personal jurisdiction, we
deem her argument to have been abandoned.

VI

[¶21] The district court’s finding that TIHA is not a dependent Indian
community was not clearly erroneous, the court did not err in determining it
had subject matter jurisdiction, and the court did not err in finding TIHA did
not have a contractual obligation to bring the eviction action in the tribal court.
We affirm.

[¶22] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte

9