Ford v. Moore

AMUNDSON, Justice

(dissenting).

[¶ 19] In this case, after Moore commenced an action in state court on behalf of Ford, the issue of whether or not the CHRP contract was a self-determination contract was the issue presented to the trial court on CHRP’s motion to dismiss for lack of jurisdiction. Moore had been discharged by Ford prior to the hearing on this motion. Counsel representing Ford at the hearing on the motion to dismiss did not resist the relief requested. Therefore, the motion was granted.

[¶ 20] After this dismissal and no appeal therefrom, Ford commenced this malpractice action. The first time any investigation was made into the records surrounding the CHRP contract was by counsel defending Moore in this action. The information discovered through counsel’s efforts was submitted to the trial court in the summary judgment proceeding which resulted in this appeal. After review of this data, the trial court found there was no tribal resolution for this CHRP contract.

[¶21] The majority correctly points out that “[t]he law further mandates that a tribal organization must obtain a tribal resolution before entering into a self-determination contract.” Not only is this requirement stated at 25 U.S.C. § 450f(a)(2) (1996), it is also stated at 25 C.F.R. § 271.18(a) (1996). The *856contract before us did not receive the required tribal resolutions. The majority believes that, since Miner states that the contract is a self-determination contract and Clifford states it is a Buy Indian Act, this creates a genuine issue of material fact.

[¶ 22] Two uncontroverted facts in this record are that the Cheyenne River Tribe’s resolution refers specifically to the 1990 OB/ GYN contract and, second, the front page of the CHRP contract expressly mentions 25 U.S.C. § 47, the Buy Indian Act, whereas the OB/GYN contract cites 25 U.S.C. § 450g, the Indian Self-Determination Act. Ford asserts that the tribal resolutions applicable to the OB/GYN contract are also the prerequisite tribal resolutions for the CHRP contract. Yet there is simply no factual support for this conclusion. “A waiver of sovereign immunity by the United States must be strictly construed and may not be extended by implication.” Comes Flying v. U.S. Through Bur. of Indian Aff., 830 F.Supp. 529, 530 (D.S.D.1993); see also Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2702, 69 L.Ed.2d 548, 553-54 (1981) (limitations and conditions upon sovereign immunity must be strictly observed and exceptions are not to be implied).

[¶23] Based upon these undisputed facts considered by the trial court, I agree there was no tribal resolution supporting the CHRP contract and, therefore, I would affirm the circuit court in this matter.