dissenting.
I respectfully dissent. At this stage of the proceedings, I conclude Minnesota state courts still retain jurisdiction and thus, outright dismissal is not proper. The record does not adequately support a conclusion that the State of Minnesota lacks any and all jurisdiction, and genuine issues of material fact remain precluding summary judgment.
Indian tribes possess “the common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978). This immunity, however, is not absolute. As the supreme court observed:
Clearly Congress may waive tribal immunity provided that Congress, by unequivocal expression, clearly indicates its intent to do so.
Tibbetts v. Leech Lake Reservation Business Comm., 397 N.W.2d 883, 886 (Minn.1986).
Congress stated clearly that tribal institutions are supplemented by state law, and that the state has jurisdiction over offenses committed by or against Indians in Indian country, or over civil causes of action between Indians or to which Indians are parties. See 18 U.S.C.A. § 1162 (West 1984) (state criminal laws) and 28 U.S.C.A. § 1360 (West 1993) (state civil laws). Where the state law is not preempted by federal law, and where the tribe does not have a tradition of self-governance on an issue, state law operates to supplement tribal law. See County of Vilas v. Chapman, 122 Wis.2d 211, 361 N.W.2d 699, 703 (1985) (county had jurisdiction over non-criminal traffic offense where no federal preemption and no tradition of tribal self-governance over traffic regulation).
The record is not yet sufficiently developed regarding what laws are in effect in the tribe that would control in this situation. Therefore, on this record there remains a serious issue of whether Minnesota law on defamation should supplement tribal law in this case.
*293The Divers correctly argue that they may have been required by federal law to report the incidents of sexual abuse. See 18 U.S.C.A. § 1169 (West 1994). Section 1169 requires child day care workers who reasonably suspect that a child was abused in Indian country to immediately report the abuse to the local child protective services agency or local law enforcement. 18 U.S.C.A. 1169(a). It is undisputed that Carlton County is the proper authority to which reports of child abuse should be made. Respondents concede that Carlton County (i.e., the State of Minnesota) and Carlton County alone has the jurisdiction to investigate alleged criminal conduct involving child abuse on the Fond du Lae reservation. In addition, respondents have to concede that Carlton County alone has the jurisdiction to investigate the allegations of theft made against appellants by respondents.
We also note that federal law limits the tribe’s authority to inhibit the reporting of sexual abuse, see 18 U.S.C.A. § 1169(b) (supervisor or person with authority over person described in section (a)(1) who inhibits or prevents that person from making a report can be fined or imprisoned). We note that the category of those covered is extremely broad including, but not limited to, all forms of medical providers, and not just teachers and school counsellors, but teachers’ aides, teachers’ assistants and bus drivers. 18 U.S.C.A. § 1169(a)(1).
Respondents argue the law does not apply to the Divers because they worked as janitors. The determination of whether the Divers were acting under the statute, however, requires a factual determination of whether or not they were child care workers. Lynn Diver states that she had worked as a child day care worker. Mary Diver states that she had worked as a cook. They both state that they expected to return to their respective positions. Lynn Diver states that she believed she was required to report suspected child abuse. If the Divers can be found to be subject to the federal requirement on reporting sexual abuse, it is difficult to conclude that they do not have a right to go to court when the tribe’s attorney allegedly defamed them regarding their actions in making the report.
The record is also not yet sufficiently developed to allow a determination that Peterson is a high level executive officer of the tribe such that he should be accorded absolute immunity. In Davis v. Littell, 398 F.2d 83, 86 (9th Cir.1968), cert. denied, 393 U.S. 1018, 89 S.Ct. 621, 21 L.Ed.2d 562 (Jan. 13, 1969), the Ninth Circuit concluded the tribal general counsel there qualified for absolute immunity. In that case, however, the record reflected the duties that the general counsel was to perform, such as “those functions generally required of a General Counsel’s office in organizations engaged in the administration of public affairs.” Id. Here the record does not adequately reflect the extent of Peterson’s duties, and therefore summary judgment is not proper on this basis.
As to official immunity, summary judgment would not be proper because, under Bauer v. State, 511 N.W.2d 447, 449 (Minn.1994), official immunity does not extend to allegedly defamatory statements. Id. at 449. “[Ejither the statement is true or it is not, and there is no discretionary conduct for official immunity to cover and protect.” Id.
Under qualified immunity, genuine issues of material fact remain as to whether Peterson acted with malice. Peterson stated to the press that the Divers were fired for stealing and that criminal charges would be filed against them. According to the Divers, Peterson made this statement after he was aware that Carlton County had investigated the incident and would not be filing charges against the Divers. It is interesting to note respondent’s position that to make a charge of theft against appellants they had to go to Carlton County and invoke Carlton County’s and the State of Minnesota’s jurisdiction. When appellants responded with this lawsuit they are arguing that the Carlton County District Court and the State of Minnesota have no jurisdiction.
Peterson argues that the Divers are raising the sex abuse reporting issue to cover up the fact that they stole school property. This argument is a smoke screen. It appears rather that the accusation of theft against appellants by respondents may be *294being used to divert attention away from appellants’ claim that sexual abuse of minors may not have been reported. The theft issue raised by respondents is inconsequential. Respondents claim that appellants “stole” a piece of school paper with notes on it is hardly actionable, as the Carlton County attorney’s refusal to charge attests.
The seminal issue revolves around the Divers reporting alleged sexual abuse of minors. This is where I respectfully differ with the trial court and the majority. The trial court’s Memorandum of law which was made a part of the trial court Order states:
This action arose out of activities that are strictly intra-tribal when the Fond du Lac Tribe decided to fire the Plaintiffs from their jobs as custodians at the tribal school. After the Plaintiffs went public with their side of the story, the tribe specifically authorized Defendant Peterson to give the reason for the firings.
I find this issue cannot be an “intra-tribal” dispute. The controlling federal law requires a reporting, not to the Fond du Lac tribal Council, but to the Carlton County attorney’s office. The next issue is whether the Divers are protected from retaliation after making a report. This is not an intra-tribal dispute as the Divers protection from retaliation, if they are entitled to it, will come from a state or federal court and not from the tribal council. On the issue of their defamation lawsuit, if the tribe does not have a tradition of regulating defamation, the State of Minnesota’s laws are available, and the state may have jurisdiction.
Although this action is for defamation, the issues of the report of sexual abuse and that of defamation are so intertwined that summary judgment is not proper at this stage. This is not a matter of an intra-tribal dispute. Rather, serious state and federal issues are raised as well. I disagree that dismissal or summary judgment are proper at this time.