Miner Electric, Inc. v. Muscogee (Creek) Nation

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH
September 19, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court

TENTH CIRCUIT

M IN ER ELECTRIC, IN C.;
RUSSELL E. M INER,

Plaintiffs-Appellees,
No. 06-5216
v.

M U SCOG EE (C REEK ) N A TION,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E NO RTH ERN DISTRICT O F O K LAH O M A
(D.C. No. 05-CV-359-HDC-PJC)

Submitted on the briefs: *

Shannon B. Cozzoni, M uscogee (Creek) Nation, Okmulgee, Oklahoma, for
Defendant-Appellant.

Tony M . Graham, W illiam F. Smith, Graham and Freeman, PLLC, Tulsa,
Oklahoma, for Plaintiffs-Appellees.

Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
B ALDO C K , Circuit Judge.

M iner Electric, Inc., and Russell E. M iner (“M iner parties”) filed a

complaint in federal district court against M uscogee (Creek) N ation (“Nation”), a

federally-recognized Indian tribe. In their complaint, the M iner parties sought

declaratory and injunctive relief related to a forfeiture order entered by the

Nation’s District Court (“Tribal Court”). The Nation moved to dismiss the

complaint based upon its sovereign immunity. The district court denied the

motion to dismiss and subsequently granted summary judgment in favor of the

M iner parties. On appeal, the Nation argues that the district court erred in

denying its motion to dismiss and in granting summary judgment. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we hold that the Nation has not waived,

nor has Congress abrogated, its sovereign immunity. W e therefore REVERSE

and REM AND, with instructions to the district court to VACATE its judgment in

favor of the M iner parties and to enter a judgment of DISM ISSAL.

I. Background

The relevant historical and procedural facts are undisputed. The Nation

operates a casino on “Indian country” land, as defined by 18 U.S.C. § 1151.

M r. M iner parked a vehicle owned by M iner Electric in the casino parking lot on

June 15, 2004, where it remained until the following day. On June 16, tribal

security officers seized the vehicle, as well as suspected illegal drugs and

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approximately $1,400 in cash found inside of the vehicle. The officers issued

M r. M iner a civil citation for Disorderly Conduct: Possession of Controlled

Dangerous Substance. He entered a guilty plea to the civil citation in the Tribal

Court on June 30, 2004, and was assessed and paid a civil fine and court costs.

That same day, the N ation served M r. M iner w ith notice of a civil forfeiture

proceeding in the Tribal Court, seeking to forfeit to the Nation the vehicle and

cash seized on June 16, pursuant to tribal law. M iner Electric intervened in the

forfeiture proceeding, asserting ownership of the vehicle. After a hearing in

which the M iner parties participated, the Tribal Court entered an order on

January 10, 2005, forfeiting the property to the Nation. The Tribal Court’s order

was upheld on appeal by the Nation’s Supreme Court on April 29, 2005.

The M iner parties filed this action in district court on June 23, 2005. In

their complaint they sought relief from the forfeiture order on the basis that the

Tribal Court lacked jurisdiction over a quasi-criminal proceeding against

non-Indians. 1 They contended that the forfeiture was a denial of their rights

under the Fifth and Eighth Amendments and Title I of the Indian Civil Rights Act

(“ICRA”), 25 U.S.C. §§ 1301-03. They also argued that the forfeiture was not

authorized by tribal statute. The M iner parties sought declaratory and injunctive

relief, including an injunction against execution of the forfeiture order; a

1
The M iner parties’ original complaint is not included in either party’s
appendix. References to their complaint pertain to their Amended Complaint
filed on December 1, 2005.

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declaration that the Tribal Court did not have jurisdiction over them for purposes

of the forfeiture proceeding; and a return of the seized property to them. In their

complaint, the M iner parties asserted that they had exhausted all tribal remedies

and that the ICRA operated as a waiver of tribal immunity.

The N ation moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(1),

arguing that it was not subject to suit based upon its sovereign immunity. The

district court denied the motion, reasoning that because it had authority to

determine w hether the Tribal Court exceeded its jurisdiction in the forfeiture

proceeding, it therefore also had jurisdiction over the Nation. The district court

then granted summary judgment in favor of the M iner parties. The Nation filed a

timely appeal.

II. Discussion

“Tribal sovereign immunity is a matter of subject matter jurisdiction, which

may be challenged by a motion to dismiss under Fed. R. Civ. P. 12(b)(1).”

E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1302-03 (10th Cir.

2001) (citation omitted). W e review de novo a district court’s denial of a motion

to dismiss based on tribal sovereign immunity. See id. at 1303.

A. Tribal Sovereign Im m unity

The N ation argues that dismissal was required under Santa Clara Pueblo v.

M artinez, 436 U.S. 49, 58 (1978), in which the Supreme Court observed that

“Indian tribes have long been recognized as possessing the common-law

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immunity from suit traditionally enjoyed by sovereign powers.” The Court noted

that “[t]his aspect of tribal sovereignty, like all others, is subject to the superior

and plenary control of Congress.” Id. It concluded that, absent Congressional

authorization, “Indian Nations are exempt from suit.” Id. (quotation omitted).

The Court held specifically that Title I of the ICRA–the same statute upon which

the M iner parties base some of their claims for relief–did not abrogate tribal

sovereign immunity, and therefore suits against a tribe under the ICRA are barred.

Id. at 59.

In Kiowa Tribe of Oklahoma v. M anufacturing Technologies, Inc., 523 U.S.

751, 754 (1998), the Supreme C ourt affirmed that, “[a]s a matter of federal law,

an Indian tribe is subject to suit only where Congress has authorized the suit or

the tribe has w aived its immunity.” W hile noting that “[t]here are reasons to

doubt the wisdom of perpetuating the doctrine,” it nonetheless rejected the

defendant’s invitation to narrow the scope of tribal sovereign immunity. Id. at

758. The Court recognized that it had “taken the lead in drawing the bounds of

tribal immunity,” id. at 759, but it deferred to Congress to limit or abrogate the

doctrine through legislation, as it has done w ith respect to limited classes of suits,

see id. at 758-60.

This court has applied the Supreme Court’s straightforward test to uphold

Indian tribes’ immunity from suit. In Burrell v. Arm ijo, 456 F.3d 1159, 1161

(10th Cir. 2006), cert. denied, 127 S.Ct. 1132 (2007), non-Indian plaintiffs filed

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suit in district court against a federally-recognized Indian tribe and other

defendants, alleging civil rights violations and breach of a lease. A tribal court

had previously dismissed the same claims based on the tribe’s sovereign

immunity and the plaintiffs asked the district court to declare the tribal court

proceedings “null and void.” Id. at 1165 (quotation omitted). But the tribe again

asserted its immunity from suit in the district court. Id. Because the plaintiffs

advanced no argument that C ongress had abrogated the tribe’s immunity, and we

rejected their argument that the tribe had waived it, we held that the tribe was

entitled to sovereign immunity and we dismissed it from the action. Id. at 1174,

1175. See also Walton v. Tesuque Pueblo, 443 F.3d 1274, 1277-80 (10th Cir.)

(reversing district court’s denial of motion to dismiss where tribal defendants did

not w aive immunity and no statute authorized the suit), cert. denied, 127 S.Ct.

587 (2006); E.F.W., 264 F.3d at 1304-05 (affirming dismissal of claims against

tribal defendants on same grounds); Bank of Okla. v. M uscogee (Creek) Nation,

972 F.2d 1166, 1169-70 (10th Cir. 1992) (same).

The Nation contends on appeal, as it did in the district court, that its

immunity from suit has not been abrogated by Congress, nor has the Nation

unequivocally waived it. See E.F.W., 264 F.3d at 1304 (“It is settled that a

waiver of sovereign immunity cannot be implied but must be unequivocally

expressed.” (quotation omitted)). The M iner parties do not dispute either of these

contentions on appeal and normally our analysis would end there. But they

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contend that the district court correctly concluded that federal-question

jurisdiction is sufficient to confer jurisdiction over the Nation in this action. The

M iner parties also argue that the district court properly denied the N ation’s

motion to dismiss based on this court’s decision in Tenneco Oil Co. v. Sac & Fox

Tribe of Indians of O klahom a, 725 F.2d 572, 575 (10th Cir. 1984), in which we

stated that “[t]he presence or absence of federal question jurisdiction is to some

extent tied to the sovereign immunity issue.” They argue that, “[i]t was an

implicit requirement in the court’s ruling [in Tenneco] that there be a forum

available to non-Indians to question and if necessary to prevent the unlawful

exercise of tribal jurisdiction.” Aplee. Br. at 9. In the alternative, the M iner

parties assert that the district court had jurisdiction under the narrow exception to

sovereign immunity recognized in Dry Creek Lodge, Inc. v. Arapahoe &

Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980). W e address each of these

arguments in turn.

B. Federal-Question Jurisdiction

The M iner parties argue that the district court properly denied the N ation’s

motion to dismiss because the court had jurisdiction to decide the federal question

regarding the scope of the Tribal Court’s jurisdiction. They assert that

“[r]esolving the question of federal question jurisdiction necessarily involves

delineating the reach of tribal sovereign immunity.” Aplee. Br. at 6. The Nation

counters that the district court erred in equating subject-matter jurisdiction based

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upon a federal question under 28 U.S.C. § 1331 with subject-matter jurisdiction

over the Nation. Although the district court acknowledged the N ation’s

contentions that its sovereign immunity had not been abrogated or waived, it did

not grant the motion to dismiss on that basis. Instead, after reviewing cases

defining the scope of tribal court jurisdiction and the origin and nature of civil

forfeiture proceedings, the district court denied the motion, holding that

[a] federal district court has the authority to determine w hether a
tribal court had the power to exercise civil subject matter jurisdiction
over a non-Indian’s property rights. Accordingly, the Court finds
that it has jurisdiction over the Creek Nation, and the subject matter
of this action, and the power to issue injunctive relief as requested in
this proceeding.

Aplt. App. at 48 (citation omitted).

W e disagree that federal-question jurisdiction negates an Indian tribe’s

immunity from suit. Indeed, nothing in § 1331 unequivocally abrogates tribal

sovereign immunity. In the context of the United States’ sovereign immunity, w e

have held that

[w]hile 28 U.S.C. § 1331 grants the court jurisdiction over all civil
actions arising under the Constitution, laws or treaties of the United
States, it does not independently waive the Government’s sovereign
immunity; § 1331 will only confer subject matter jurisdiction where
some other statute provides such a w aiver.

High Country Citizens Alliance v. Clarke, 454 F.3d 1177, 1181 (10th Cir. 2006)

(quotation omitted), cert. denied, 127 S.Ct. 2134 (2007). Tribal sovereign

immunity is deemed to be coextensive with the sovereign immunity of the United

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States. Ramey Constr. Co. v. Apache Tribe of M escalero Reservation, 673 F.2d

315, 319-20 (10th C ir. 1982). Therefore, in an action against an Indian tribe, we

conclude that § 1331 will only confer subject matter jurisdiction where another

statute provides a waiver of tribal sovereign immunity or the tribe unequivocally

waives its immunity. Thus, the district court erred in denying the N ation’s

motion to dismiss on the basis that it had jurisdiction to determine the extent of

the Tribal Court’s jurisdiction under § 1331.

C. Tenneco

The M iner parties argue that the district court properly relied on Tenneco,

725 F.2d 572, in denying the Nation’s motion to dismiss. The non-Indian

plaintiff in Tenneco filed an action in district court against an Indian tribe and

tribal officers, seeking declaratory and injunctive relief with respect to certain

tribal ordinances it contended were unconstitutional, preempted by federal

regulation, or exceeded the scope of Indian sovereignty over non-Indians. Id. at

574. W e noted that Indian tribes’ “limited sovereign immunity from suit is

well-established” and that the tribe in that case “ha[d] not chosen to waive that

immunity.” Id. W e then proceeded to consider whether the tribe’s sovereign

immunity extended to the tribal-officer defendants, holding:

W hen the complaint alleges that the named officer defendants have
acted outside the amount of authority that the sovereign is capable of
bestowing, an exception to the doctrine of sovereign immunity is
invoked. If the sovereign did not have the power to make a law, then
the official by necessity acted outside the scope of his authority in

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 enforcing it, making him liable to suit. Any other rule would mean
that a claim of sovereign immunity would protect a sovereign in the
exercise of pow er it does not possess.

Id. (citation omitted). Thus, we concluded that the tribal officer defendants were

not protected by the tribe’s immunity and that the suit could go forward against

them. Id. at 575. W e noted that our holding was consistent with Santa Clara

Pueblo, where the Supreme Court held that a tribal officer was not protected by

the tribe’s immunity from suit. See Tenneco, 725 F.2d at 574-75 (citing Santa

Clara Pueblo, 436 U.S. 49, 59). W e also concluded that, in the suit against the

tribal officers, the extent of the tribe’s sovereignty to enact the challenged

ordinances raised a federal issue sufficient for federal-question jurisdiction in the

district court. See id. at 575.

Like this case, Tenneco involved two different aspects of an Indian tribe’s

“sovereignty”: its immunity from suit and the extent of its power to enact and

enforce laws affecting non-Indians. But it does not stand for the proposition, as

the M iner parties suggest, that an Indian tribe cannot invoke its sovereign

immunity from suit in an action that challenges the limits of the tribe’s authority

over non-Indians. On the contrary, we held in Tenneco that the tribe was immune

from suit. See id. at 574. Here, because the M iner parties named only the Nation

itself as a defendant, we do not reach the question whether any of the N ation’s

officials would be subject to suit in an action raising the same claims.

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 D. Dry Creek Exception

The M iner parties’ final argument against the Nation’s immunity from suit

relies on this court’s decision in Dry Creek, 623 F.2d 682, in which we

recognized an exception to the Supreme Court’s ruling in Santa Clara Pueblo.

The non-Indian plaintiffs in Dry Creek were involved in a land-related dispute

with tw o Indian tribes. See 623 F.2d at 684. They originally sought a remedy in

a tribal court, but were refused access to that forum. In response to the same

claims in federal court, the tribes challenged the district court’s jurisdiction. See

id. W e held that the district court erred in dismissing the claims against the

tribes. W e distinguished Santa Clara Pueblo, noting that the Supreme Court in

that case emphasized the availability of the tribal courts and the intra-tribal nature

of the issues, whereas in Dry Creek the plaintiffs were non-Indians who had been

denied any remedy in a tribal forum. Id. at 685. This court later expressly

limited the holding in Dry Creek to apply only where the tribal remedy is “shown

to be nonexistent by an actual attempt” and not merely by an allegation that resort

to a tribal remedy would be futile. White v. Pueblo of San Juan, 728 F.2d 1307,

1313 (10th Cir. 1984). The Dry Creek rule has “minimal precedential value”; in

fact, this court has never held it to be applicable other than in the Dry Creek

decision itself. Walton, 443 F.3d at 1278 (quotation omitted).

The M iner parties clearly fail to come within the narrow Dry Creek

exception to tribal sovereign immunity. Considering whether they could have

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brought this action in the Tribal Court rather than the district court, they

hypothesize that the Nation would have claimed immunity from suit in that forum

as well. But they must show an actual attempt; their assumption of futility of the

tribal-court remedy is not enough. M oreover, “[a] tribal court’s dismissal of a

suit as barred by sovereign immunity is simply not the same thing as having no

tribal forum to hear the dispute.” Walton, 443 F.2d at 1279. In any event, the

M iner parties participated in the Tribal Court forfeiture proceeding and they

affirmatively contended in their district court complaint that they have exhausted

all tribal remedies. This certainly belies their assertion that such remedies were

“nonexistent,” as is required by White, 728 F.2d at 1313.

III. Conclusion

W e conclude that, in the absence of congressional abrogation of tribal

sovereign immunity from suit in this action, or an express waiver of its sovereign

immunity by the N ation, the district court erred in failing to grant the N ation’s

motion to dismiss. The judgment of the district court is REVERSED and this

case is REM ANDED, with instructions to the district court to VACATE the

judgment in favor of M iner Electric, Inc., and Russell E. M iner and to enter a

judgment of DISM ISSAL.

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