Bradley v. Crow Tribe of Indians

No. 02-474

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 82

SARAH BRADLEY, Personal Representative for
the Estate of STEPHEN E. BRADLEY, d/b/a
Native American Indian Design,

Plaintiff and Appellant,

v.

CROW TRIBE OF INDIANS,

Defendant and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DV 00-0980,
The Honorable Susan P. Watters, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Thomas E. Towe, Towe, Ball, Enright, Mackey & Sommerfeld, P.L.L.P.,
Billings, Montana

For Respondent:

Steven B. Bolstad, Keith A. Molyneaux, Elk River Law Office, P.L.L.P.,
Billings, Montana

Submitted on Briefs: February 6, 2003

Decided: April 15, 2003

Filed:

__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1 The Plaintiff, Stephen Bradley, brought this action for breach of contract by the

Defendant, Crow Tribe of Indians, in the District Court for the Thirteenth Judicial District

in Yellowstone County. The District Court dismissed Bradley's complaint based on

sovereign immunity. Bradley appeals from the District Court's order dismissing the

complaint. We reverse and remand for further proceedings.

¶2 The issue on appeal is whether the District Court erred when it dismissed Bradley's

claim based on its conclusion that the Tribe had not unequivocally waived its immunity from

suit in state court.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In 1994, Stephen Bradley, a member of the Crow Tribe, assisted the Tribe in the

formation of a corporation to develop a coal power plant and obtain federal funding for its

construction. The Tribe passed Resolution No. 95-02 on October 8, 1994, which authorized

the project and permitted the Chairperson of the Tribe and other designated officers to

negotiate contracts on behalf of the power plant project. Bradley alleges that on or about

November 15, 1994, he entered into a seven-year service contract with the Tribe, by which

he agreed to provide consulting services and act as program director for the planning and

construction of a power plant on tribal property and the Tribe agreed to pay him for his

services. Bradley signed and submitted a copy of the contract drafted by him to the Tribe

for signature. The written contract includes a provision that states:

11. MONTANA LAW AND VENUE
The parties agree that any action at law, suit in equity, or judicial proceeding
for the enforcement of this AGREEMENT or any provision thereof shall be
instituted only in the courts of the STATE OF MONTANA, and it is

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 mutually agreed that this AGREEMENT shall be governed by the laws of the
STATE OF MONTANA, both as to interpretation and performance.
[Emphasis in original.]

Clara Nomee, who was the Chairperson of the Tribe at that time, recalled signing the

contract, but neither party has a copy of a contract signed by Nomee or any other authorized

representative of the Tribe.

¶4 From 1994 until 2000, Bradley provided his consulting services for the Tribe. In

1998, however, the Tribe became aware of impropriety by officials in the Tribal Government

and, as a result of a criminal investigation, Nomee was convicted of embezzlement in federal

court on September 16, 1998, and was removed from her position as Chairperson of the

Tribe. On July 8, 2000, the Tribe passed Resolution No. 2000-30, that addressed prior acts

of Nomee's alleged misconduct, including her conduct involving the power plant project.

The resolution concluded that Nomee:

[O]perated in an improper, illegal, unethical manner, in violation of the laws
of the Crow Tribe by using Resolution 90-35, which is unconstitutional on its
face, when Nome[e] and her administration failed to comply with the
provision contained in Resolution 90-35, requiring that all decisions made by
Nomee or her administration between Tribal Council meetings, be ratified at
the next Tribal Council meeting . . . .

Resolution 2000-30 declared that all decisions, contracts and agreements made by Nomee

were thereafter voidable and on August 15, 2000, Clifford BirdinGround, then the

Chairperson of the Crow Tribe, sent a Notice of Termination to Bradley, which stated:

The Crow Tribe hereby provides thirty (30) day notice of its intention to
terminate the consultant agreement entered into by yourself and the previous
elected administration . . . .

¶5 On October 10, 2000, Bradley filed a complaint in District Court, alleging that the

Tribe breached its contract with him and had failed to pay him as provided by contract. On

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December 19, 2000, the Tribe moved to dismiss the action on grounds that the District Court

lacked personal and subject matter jurisdiction due to the Tribe's sovereign immunity. The

District Court denied the Tribe's motion to dismiss on February 8, 2001, concluding that the

Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1604 to 1607, permitted Indian

tribes to be sued in state and federal courts for causes of action arising from "commercial

activities" carried on in the United States, and that the alleged contract provision was a

waiver of the Tribe's sovereign immunity. However, the District Court reserved the right to

readdress the issue of subject matter jurisdiction.

¶6 Following further discovery, neither party could locate or produce a copy of the

written contract that was signed by an authorized representative of the Tribe.

¶7 On November 27, 2001, Bradley moved for summary judgment. In support of his

motion, Bradley filed the sworn affidavit of Clara Nomee dated July 12, 2001. In the

affidavit, she stated that she had signed a contract with Bradley to administer the power plant

project. She recognized the written contract relied on by Bradley, and declared in her

affidavit that:

Although I have no specific recollection of exactly when I signed this
document, I am quite certain I did sign it. I would recall any reason for not
doing so, and there were none. Further, I do know that under a federal grant
program if a contract was not signed, we were not allowed to disburse funds.
Failure to have a signed contract would have been called to my attention
immediately by the accountants, and there was no such communication.

Also submitted in support of the motion was an affidavit by Bradley in which he claimed the

existence of a contractual relationship between him and the Tribe.

¶8 The Tribe failed to timely respond to Bradley's motion, and the District Court granted

Bradley's motion on February 5, 2002, and entered judgment on February 15, 2002.

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¶9 On March 12, 2002, the Tribe moved to alter or amend the judgment of the District

Court pursuant to Rule 59(g), M.R.Civ.P., and in the alternative, to set aside the judgment

pursuant to Rule 60(b), M.R.Civ.P. The Tribe contended that its prior counsel had failed to

notify the Tribe of the existing matter or the motions pending before the District Court and,

as a result, the Tribe had not filed a timely brief in opposition to summary judgment. The

Tribe also argued that the District Court should consider the Tribe's motion because it

addressed sovereign immunity and whether the District Court had the subject matter

jurisdiction to enforce the terms of the alleged contract.

¶10 The District Court ordered a hearing on the matter for April 18, 2002. The parties did

not dispute that there was some contractual relationship between Bradley and the Tribe, but

argued that there was no formal written contract signed by the Tribe that waived their

immunity from suit in state court, and that there was a dispute as to whether the alleged

written contract contained the actual terms of Bradley's contract with the Tribe. However,

no evidence was submitted which controverted Nomee's or Bradley's affidavits. The District

Court found that there was an express agreement which had been partially performed and

that it included a waiver of tribal immunity from suit in state court. However, the District

Court concluded that because a signed copy of the agreement had not been produced, it was

not sufficient to overcome the presumption against waiver of immunity and dismissed the

action for lack of jurisdiction.

STANDARD OF REVIEW

¶11 "[A] court's determination of a motion to dismiss based on a claim of sovereign

immunity is a legal question over which our review is plenary." Thompson v. Crow Tribe

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of Indians, 1998 MT 161, ¶ 10, 289 Mont. 358, ¶ 10, 962 P.2d 577, ¶ 10 (citation omitted).

A determination by a district court that it lacks subject matter jurisdiction is a conclusion of

law that we will review for correctness. General Constructors v. Chewculator, Inc., 2001

MT 54, ¶ 16, 304 Mont. 319, ¶ 16, 21 P.3d 604, ¶ 16.

¶12 "When deciding a motion to dismiss based on lack of subject matter jurisdiction, a

trial court must determine whether the complaint states facts that, if true, would vest the

court with subject matter jurisdiction." General Constructors, ¶ 16 (citing Liberty v. State

Fund, 1998 MT 169, ¶ 7, 289 Mont. 475, ¶ 7, 962 P.2d 1167, ¶ 7). A motion to dismiss

"should be construed in a light most favorable to the non-moving party and should not be

granted unless it appears beyond a doubt that the non-moving party can prove no set of facts

in support of its claim which would entitle it to relief." General Constructors, ¶ 17 (citation

omitted).

DISCUSSION

¶13 Did the District Court err when it dismissed Bradley's claim based on its conclusion

that the Tribe had not unequivocally waived its immunity from suit in state court?

¶14 The District Court recognized the contractual relationship between Bradley and the

Tribe; however, it concluded that because it was a contract for employment for more than

one year, the Statute of Frauds, found at § 28-2-903(1), MCA, is applicable. The District

Court then concluded that Bradley's performance of the contract would normally create an

exception to the applicability of the Statute of Frauds pursuant to the court's "equitable

powers," but concluded that in this case to exercise those powers would circumvent the

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Tribe's sovereign immunity and be contrary to federal law. Specifically, the District Court

stated:

Federal case law does not support this Court using its equitable powers under
Montana law to (1) lift the Agreement out of the Statute of Frauds thereby
making it a valid contract pursuant to Montana law, and in turn (2) using that
valid contract under Montana law to establish a clear waiver of tribal
immunity under federal constitutional case law.

¶15 Bradley contends that his allegations and evidence show that the Tribe did waive its

sovereign immunity and that the District Court erred by denying him the opportunity to

present additional evidence and testimony on the issue of waiver, especially considering that

the Tribe presented no contradictory evidence or affidavits.

¶16 The Tribe contends that Bradley had the burden of proving unequivocal waiver and

that because he was unable to produce a signed contract, there was insufficient direct

evidence to prove that the Tribe consented to waive its sovereign immunity. Without a

signed written waiver, the Tribe contends that the District Court could, at best, find an

implied waiver, which is insufficient to avoid the Tribe's sovereign immunity. Furthermore,

the Tribe contends that Nomee's and Bradley's affidavits lack credibility, and that Nomee's

affidavit failed to "affirmatively and unequivocally state that she signed the contract."

Finally, the Tribe contends that the District Court correctly dismissed the complaint because

the validity and the terms of the contract should be litigated in tribal court.

¶17 We begin our analysis by recognizing that Indian tribes generally enjoy common-law

immunity from suit, although this right is subject to the control of Congress. Wippert v.

Blackfeet Tribe (1993), 260 Mont. 93, 104, 859 P.2d 420, 426; Santa Clara Pueblo v.

Martinez (1978), 436 U.S. 49, 58, 98 S.Ct. 1670, 1677. In addition, we recognize that the

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sovereign immunity of Indian tribes "is a matter of federal law and is not subject to

diminution by the States." Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc.

(1998), 523 U.S. 751, 756, 118 S.Ct. 1700, 1703, 140 L.Ed.2d 981. We have previously

acknowledged, however, that Indian tribes may waive their right to sovereign immunity and

consent to suit in state courts. Wippert, 260 Mont. at 104, 859 P.2d at 426 (citing Santa

Clara Pueblo, 436 U.S. at 58, 98 S.Ct. at 1677). Any waiver of sovereign immunity,

however, "cannot be implied but must be unequivocally expressed." United States v. King

(1969), 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52; see Thompson, ¶ 20; see also C

& L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Okla. (2001), 532 U.S. 411, 418,

121 S.Ct. 1589, 1594, 149 L.Ed.2d 623 ("A tribe's waiver must be 'clear'"). "There is a

strong presumption against waiver of tribal sovereign immunity." DeMontiney v. U.S. ex rel.

Dept. of Interior (9th Cir. 2001), 255 F.3d 801, 811 (citing Pan American Co. v. Sycuan

Band of Mission Indians (9th Cir. 1989), 884 F.2d 416, 419).

¶18 Although neither this Court nor the United States Supreme Court have specifically

addressed the procedural requirements that a district court should follow when determining

whether an Indian tribe has waived its sovereign immunity, we find several decisions in the

federal circuits to be persuasive and adopt the following guidelines. The D.C. Circuit Court

of Appeals held that where a motion to dismiss is based on a claim of sovereign immunity,

"the court must engage in sufficient pretrial factual and legal determinations to 'satisfy itself

of its authority to hear the case' before trial." Jungquist v. Sheikh Sultan Bin Khalifa Al

Nahyan (D.C. Cir. 1997), 115 F.3d 1020, 1027-28 (quoting Prakash v. American University

(D.C. Cir. 1984), 727 F.2d 1174, 1179); see also Foremost-McKesson v. Islamic Republic

8
of Iran (D.C. Cir. 1990), 905 F.2d 438, 449 (where foreign sovereign immunity was

asserted, "more than the usual is required of trial courts in making pretrial factual and legal

determinations"). In Prakash, the D.C. Circuit Court of Appeals stated:

When subject-matter jurisdiction is questioned, the court must, of course,
satisfy itself of its authority to hear the case, and in so doing, it may resolve
factual disputes. The court has considerable latitude in devising the procedures
it will follow to ferret out the facts pertinent to jurisdiction, and normally it
may rely upon either written or oral evidence. The court must, however, afford
the nonmoving party "an ample opportunity to secure and present evidence
relevant to the existence of jurisdiction."

Prakash, 727 F.2d at 1179-80 (quoting Gordon v. National Youth Work Alliance (D.C. Cir.

1982), 675 F.2d 356, 363) (other citations omitted); see also Local 336, American Fed. of

Musicians, AFL-CIO v. Bonatz (3rd Cir. 1973), 475 F.2d 433, 437 ("[W]e have never

departed from the rule that even on such an issue the record must clearly establish that after

jurisdiction was challenged the plaintiff had an opportunity to present facts by affidavit or

by deposition, or in an evidentiary hearing, in support of his jurisdictional contention").

With respect to the plaintiff's burden in these proceedings, the Second Circuit Court of

Appeals stated that the plaintiff must prove by a preponderance of evidence that jurisdiction

exists. See Garcia v. Akwesasne Housing Authority (2nd Cir. 2001), 268 F.3d 76, 84 (rule

applies when an Indian tribe claims sovereign immunity); Makarova v. U.S. (2nd Cir. 2000),

201 F.3d 110, 113 (rule applies when the United States claims sovereign immunity).

¶19 In this case, Bradley contends that the District Court erred by concluding that an

equitable exception to the Statute of Frauds could not overcome sovereign immunity. We

agree that the District Court employed an incorrect analysis. While tribal immunity is a

federal rule of law–the waiver of which must be unequivocally expressed, the Statute of

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Frauds is a state rule of law. Partial performance is an equitable exception to that state rule

of law. See Hayes v. Hartelius (1985), 215 Mont. 391, 396-97, 697 P.2d 1349, 1353. It is

a method of proving unequivocal waiver. It is not an exception to the immunity itself.

¶20 Montana's Statute of Frauds, § 28-2-903(1), MCA, is a statute that limits the

enforceability of certain contracts: it is not a statute that affects a district court's subject

matter jurisdiction. Other jurisdictions have reached a similar conclusion. See Chambers

v. Industrial Com'n (Ill. 1989), 547 N.E.2d 470, 471 ("[T]he statute of frauds merely sets

forth a writing requirement for certain classes of contracts. It cannot confer subject-matter

jurisdiction"); see also Holley Equipment Co. v. Credit Alliance Corp. (11th Cir. 1987), 821

F.2d 1531, 1535 (The Eleventh Circuit Court of Appeals concluded that a district court

erroneously dismissed a case for a lack of subject matter jurisdiction where the dismissal was

based upon a defendant's successful affirmative defense that Alabama's Statute of Frauds,

Ala.Code § 7-2-201, precluded recovery on an alleged contract). The District Court need

not consider Montana's Statute of Frauds when determining whether it has subject matter

jurisdiction; nor does it need to invoke its "equitable powers" to find jurisdiction.

¶21 Nor is the Tribe correct when it contends that because a signed copy of the contract

has not been produced, the waiver can only be implied and is not unequivocal. Whether the

waiver is unequivocal, depends on the language of the contract itself–in this case Paragraph

11–which the District Court correctly concluded was sufficient to waive jurisdictional

objections. Whether or not the contract was signed simply relates to whether Paragraph 11

had been agreed upon. That fact was also subject to proof by direct testimony or affidavit

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from parties authorized to execute the contract–in this case Clara Nomee and Stephen

Bradley.

¶22 In this case, it is apparent that because of its erroneous reliance on the Statute of

Frauds and its equitable powers, the District Court failed to address the only factual

consideration that was essential to a determination of whether the Tribe "clearly" and

"unequivocally" waived its sovereign immunity. Bradley's complaint alleged sufficient facts

that, if true, would vest the District Court with subject matter jurisdiction. See General

Constructors, ¶ 16; Liberty, ¶ 7. Bradley provided a copy of the alleged written contract

between the parties, alleged that Nomee signed it as an authorized representative, and Nomee

signed an affidavit testifying to that effect. The Tribe disputes the credibility of Bradley and

Nomee, and whether the alleged written contract contained the actual contractual terms

between Bradley and the Tribe. However, the Tribe produced no evidence to refute the

affidavits of the authorized signatories of the contract. Nor did it provide any other contract

pursuant to which Bradley could have been performing for the previous six years. Nomee's

affidavit was not equivocal. In reference to the contract she stated: "I am quite certain I did

sign it." Had the Tribe controverted either of the affiants or offered direct evidence to

contradict their recollections of the agreement we would remand for resolution of that

limited factual issue. However, because there is, in the present posture of the case, no

factual issue to resolve, we conclude that the undisputed evidence establishes that a contact

between Stephen Bradley and the Crow Tribe, which included the unequivocal waiver of

sovereign immunity found at paragraph 11, was proven. Therefore, we reverse the District

11
Court's order which dismissed Bradley's complaint for lack of jurisdiction and remand to the

District Court for further proceedings.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JIM RICE

Justice James C. Nelson dissenting.

¶23 I dissent. While I generally agree with the Court’s holding, but not its reasoning, that

the District Court’s contract analysis is in error, I strongly disagree with the Court’s

conclusion at ¶ 21 that the District Court properly decided Paragraph 11 of the Bradley/Crow

Tribe contract “was sufficient to waive jurisdictional objections.” Indeed, because the

contract was not a sufficient waiver of tribal immunity, I would affirm the District Court for

reaching the correct result, albeit for the wrong reason.

¶24 There are two fundamental issues of jurisdiction present in this case, tribal sovereign

immunity from suit and tribal court jurisdiction versus state court jurisdiction. Because

proper subject matter jurisdiction can be raised at any time and can be raised sua sponte by

this Court, these jurisdictional issues should be raised and addressed by this Court.

Thompson v. Crow Tribe of Indians, 1998 MT 161, ¶ 12, 289 Mont. 358, ¶ 12, 962 P.2d 577,

¶ 12 (holding tribe immune from suit). By virtue of its decision reversing the District Court

13
on a contract analysis alone, the majority opinion fails to properly address either of these

issues.

A. Tribal Sovereign Immunity

¶25 First, I do not believe that the possibility of a valid contract compels reversal of the

District Court. Even assuming a valid, binding agreement was formed between Bradley and

the Crow Tribe (Tribe), I do not agree with the District Court’s conclusion that the Tribe

unequivocally waived its immunity from suit by virtue of Paragraph 11 of that same contract.

¶26 Further, although Bradley asserts in his reply brief that the Tribe has not raised the

issue of a proper interpretation of Paragraph 11 of the contract by disputing the trial court’s

conclusion, as mentioned above, this Court has already determined that tribal sovereign

immunity is a jurisdictional question which may be raised at any time and may be raised by

this Court. Further, this Court’s rule regarding preservation of arguments for appeal is based

on whether the trial court was given an opportunity to consider the issue. In this case, the

trial court twice directly considered whether Paragraph 11 of the contract between Bradley

and the Tribe constituted waiver of tribal immunity. See Order Denying Motion to Dismiss,

p.4-5 (Feb. 8, 2001), and Order and Memorandum Setting Aside Judgment and Dismissing

Complaint for Lack of Subject Matter Jurisdiction, p.7 (June 10, 2002). Therefore, this

Court is free to and should address the issue that the contract here does not constitute waiver.

To that issue I now turn.

¶27 As the Court correctly notes, the rule is well established that tribes retain sovereign

immunity from suit unless that immunity is unequivocally waived by Congress or by a tribe.

C & L Enters. v. Citizen Band Potawatomi Indian Tribe (2001), 532 U.S. 411, 418, 121 S.Ct.

14
1589, 1594, 149 L.Ed.2d 623. In other words, unlike the United States or the State of

Montana, no broad based waiver of tribal immunity has ever been enacted. Compare Federal

Tort Claims Act, 28 U.S.C. §§ 2671-2680; Administrative Procedure Act, 5 U.S.C. §§ 701-

706; Art. II, Sec. 18, Mont. Const. Therefore, any case presenting the issue of tribal

immunity starts with the presumption that the tribe has immunity. From that presumption,

a court must address whether that immunity has been waived.

¶28 In the case of relinquishment of immunity by contract, the waiver must be clear. C

& L Enters., 532 U.S. at 418, 121 S.Ct. at 1594. Most cases addressing waiver of sovereign

immunity by contract also involve either an interpretation of applicable federal law, an

interpretation of tribal constitution, code, or charter, or address the agent authority of the

signatory to the contract. See, e.g., Wippert v. Blackfeet Tribe (1993), 260 Mont. 93, 104,

859 P.2d 420, 426-27 (addressing immunity in the context of the tribe’s corporate charter).

However, some cases also address the issue of whether standard contract language that does

not mention sovereign immunity nonetheless constitutes waiver.

¶29 Recently, the United States Supreme Court addressed a conflict among courts

regarding waiver based on contract language. C & L Enters., 532 U.S. at 418, 121 S.Ct. at

1594. In C & L Enters., the Court addressed a standard form construction contract for

installation of a foam roof on a building. The Court held that an arbitration clause coupled

with a choice of law clause constituted clear waiver because the tribe in that case agreed to

adhere to specific dispute resolution procedures according to the American Arbitration

Association rules. The Court also pointed out that the tribe agreed to judicial enforcement

of an arbitration judgment by those rules. Further, the Court specifically noted that its

15
decision was based in part on the fact that the tribe in that case prepared and tendered the

contract. Therefore, because federal law governs the issue of tribal immunity from suit, C

& L Enters. establishes baseline contract provisions which unequivocally constitute waiver

of sovereign immunity by a tribe.

¶30 In this case, Paragraph 11 of the parties’ contract reads:

11. MONTANA LAW AND VENUE
The parties agree that any action at law, suit in equity, or judicial proceeding
for the enforcement of this AGREEMENT or any provision thereof shall be
instituted only in the courts of the STATE OF MONTANA, and it is
mutually agreed that this AGREEMENT shall be governed by the laws of the
STATE OF MONTANA, both as to interpretation and performance.
[Emphasis in original.]

This case then presents the question of whether something less, something substantially less,

than the arbitration language in C & L Enters. constitutes waiver.

¶31 The District Court concluded that C & L Enters. requires that Paragraph 11 must be

considered an unequivocal waiver. I conclude that the District Court erred in its

interpretation of C & L Enters. as a matter of law because the court simply did not address

the differences between the contract in C & L Enters. and the contract in this case. This

point is crucial because of the presumption that sovereign immunity is not waived.

¶32 After comparing the contract at issue with the provisions at issue in C & L Enters.,

I conclude that the Bradley/Crow Tribe contract cannot be considered a clear waiver of tribal

sovereign immunity. First, unlike the contract in C & L Enters., the contract at issue here

does not contain an arbitration provision; it only has a forum and choice of law clause.

Therefore, unlike C & L Enters., the Tribe in this case did not agree to adhere to specific

16
dispute resolution procedures. Further, unlike C & L Enters., the Tribe in this case did not

agree to procedures for enforcement of judgment.

¶33 In addition, Bradley drafted the contract at issue here, not the Tribe. It is a standard

form contract intended to apply to any of Bradley’s clients, as is evident from its title:

“Standard Agreement for Consulting Services.” Accordingly, our interpretation of any

ambiguity in the contract is to be construed against Bradley, not against the Tribe.

Therefore, unlike C & L Enters., the fact that Bradley drafted and tendered the contract

rather than the Tribe removes any inference that the Tribe intended to waive immunity by

offering the contract.

¶34 Finally, the District Court cited a number of cases in support of its conclusion that

Paragraph 11 constituted clear waiver. However, all the cases cited by the court in which

a tribe was a party involved a contract which included an arbitration clause, similar to the

situation in C & L Enters. Further, although the court cited cases that involved contracts

with choice of law provisions, none of these cases dealt with tribes or tribal sovereign

immunity. Rather, these cases each deal with foreign sovereigns and countries under the

provisions of the Foreign Sovereign Immunities Act, which does not apply to tribes.

Further, after reviewing the cases involving Indian tribes, it appears that a choice of law

provision is simply insufficient to waive tribal immunity. See, e.g., Danka Funding Co. v.

Sky City Casino (N.J. Super. Ct. Law Div. 1999), 747 A.2d 837, 843 (holding forum and

choice of law provision insufficient to waive tribal immunity and stating: “The court has not

found any authority nor has any been cited by counsel to support a waiver of immunity based

on a tribal member signing a contract containing a forum selection clause . . . [unlike] a

17
waiver of tribal immunity where an arbitration clause was contained in a disputed contract.”);

American Indian Agric. Credit Consortium, Inc. v. Standing Rock Sioux Tribe, 780 F.2d

1374, 1376 (8th Cir. 1985) (promissory note with choice of law provision and provision for

attorney fees held insufficient to constitute waiver of tribal immunity).

¶35 To hold that waiver is “clear” from a contract such as the one here is to substantially

eliminate the concept of tribal sovereign immunity by giving effect to any standard form

contract with a choice of law provision. I cannot agree that such a common standard form

provision in a contract that is not prepared by a tribe should override sovereign immunity.

Therefore, I would hold that the District Court erred in concluding that the contract at issue

here constitutes a waiver of tribal sovereign immunity.

B. Tribal Court Jurisdiction Versus State Court Jurisdiction

¶36 Next, I am disturbed that a case such as this is even being litigated in the state court

system.

¶37 Tribal court versus federal court versus state court jurisdiction is one of the most

challenging Indian law issues facing the courts today. However, one thing is clear: tribal

courts have jurisdiction over tribal members conducting business on tribal land with other

tribal members. See CONFERENCE OF WESTERN ATTORNEYS GENERAL, AMERICAN INDIAN

LAW DESKBOOK, 135-37, n.82, 90 (1993) (discussing tribal, federal, and state jurisdiction).

See also Kennerly v. District Court of Ninth Judicial Dist. (1971), 400 U.S. 423, 429, 91

S.Ct. 480, 483, 27 L.Ed.2d 507, 511 (noting that, absent an act by Congress, a tribe has

exclusive jurisdiction over debt collection action arising out of a transaction on the

reservation between a non-Indian creditor and an Indian defendant); National Farmers Union

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Ins. Cos. v. Crow Tribe of Indians (1985), 471 U.S. 845, 855-56, 105 S.Ct. 2447, 2453-54,

85 L.Ed.2d 818 (In civil matters “the existence and extent of a tribal court's jurisdiction will

require a careful examination of tribal sovereignty, the extent to which that sovereignty has

been altered, divested, or diminished, as well as a detailed study of relevant statutes,

Executive Branch policy as embodied in treaties and elsewhere, and administrative or

judicial decisions.”).

¶38 Further, we have previously adhered to jurisdictional rules that require this Court to

refrain from obstructing tribal court jurisdiction when “the exercise of state jurisdiction

would interfere with reservation self-government.” General Constructors, Inc. v.

Chewculator, Inc., 2001 MT 54, ¶¶ 23-25, 304 Mont. 319, ¶¶ 23-25, 21 P.3d 604, ¶¶ 23-25.

In addition, we have stated: “Absent the clearest evidence of the Tribes' intent to consent to

the assertion of authority by state courts onto their sovereign land, the Tribes retain their

exclusive jurisdiction.” Balyeat Law, P.C. v. Pettit, 1998 MT 252, ¶ 25, 291 Mont. 196, ¶

25, 967 P.2d 398, ¶ 25. See also Agri West v. Koyama Farms, Inc. (1997), 281 Mont. 167,

173, 933 P.2d 808, 812 (Montana applies the doctrine of abstention, as a matter of comity).

¶39 In this case, as already discussed above, the contract itself does not constitute clear

evidence of the Tribe’s consent to the assertion of authority by Montana’s courts. Further,

this case falls squarely within tribal court jurisdiction: Bradley is a tribal member, the

contract is with the Tribe, and the contract involves business on tribal land with the Tribe

itself. In addition, the dispute involves a contract with the Tribe itself regarding a grant from

the United States government to facilitate energy development by the Tribe. See Affidavit

of Stephen E. Bradley (“Sometime in 1985, I proposed to the Crow Tribe that the Crow Tribe

19
ought to construct a power plant which could utilize the abundant coal supply owned by the

Crow Tribe on the Crow Reservation.”).

¶40 I cannot imagine a more straightforward issue of tribal self government. Therefore,

again, I would affirm the District Court and allow resolution of this matter to be handled

where resolution is most appropriate: in the Crow Tribal Court.

/S/ JAMES C. NELSON

Chief Justice Karla M. Gray and Justice Jim Regnier join in the foregoing dissent.

/S/ KARLA M. GRAY
/S/ JIM REGNIER

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