 |
|
U.S. 9th Circuit Court of Appeals
JOHNSON v GILA RIVER
9717213
BRUCE JOHNSON, Plaintiff-Appellant, v. No. 97-17213 GILA RIVER INDIAN COMMUNITY; D.C. No. LONE BUTTE INDUSTRIAL CV-96-02594-EHC DEVELOPMENT CORPORATION, a OPINION corporation chartered by the Gila River Indian Community, Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted
February 11, 1999--San Francisco, California
Filed April 22, 1999
Before: James R. Browning, Harlington Wood, Jr.,1 and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Sidney R. Thomas
SUMMARY
_________________________________________________________________
_________________________________________________________________
COUNSEL
Richard J. Sundberg, Bloomington, Minnesota, for the
plaintiff-appellant.
Kane Jorden von Oppenfeld, Douglas A. Jorden, and Ellen M.
Van Riper, Bischoff & Biskind, Phoenix, Arizona, for
defendant-appellee Lone Butte Industrial Development Cor-
poration.
Rodney B. Lewis, Sacaton, Arizona, for defendant-appellee
Gila River Indian Community.
_________________________________________________________________
OPINION
THOMAS, Circuit Judge:
This appeal involves the question of whether a litigant must
exhaust his appellate remedies in tribal court when the tribal
appellate court has not responded to initial appellate pleadings
for an extended period of time. Because the record creates
sufficient doubt as to whether the futility exception to the
exhaustion doctrine applies, we reverse the district court's
grant of summary judgment and remand for further proceed-
ings.
I
The Gila River Indian Community ("the Tribe") is a feder-
ally recognized Indian tribe with its reservation located in
Arizona. In 1966, the Tribe leased real property located on its
reservation to Lone Butte Industrial Development Corporation
("Lone Butte"), a corporation chartered by the Tribe. In 1979,
Lone Butte entered into a sublease of the property with Gen-
star Corporation, which built a rubber processing plant on the
property. In 1987, the Tonson Corporation purchased Gen-
star's business with funds loaned by Tonson shareholder
Bruce Johnson. As part of the transaction, Johnson acquired
a security interest in rubber processing equipment located on
the property. Subsequently, Johnson foreclosed his security
interest, took possession of the secured property, and Tonson
ceased operation. Another corporation, International Rubber,
then assumed the Genstar lease, but failed to pay rent to Lone
Butte. In 1991, Lone Butte terminated the Genstar lease.
Later that year, International Rubber entered into a new
sublease with Lone Butte for the use of the property and
leased the rubber processing equipment from Johnson. After
International Rubber failed to fulfill its obligations under the
new lease, Lone Butte terminated the new lease and secured
the premises. Lone Butte notified Johnson that it claimed a
landlord's lien on the equipment for unpaid rents and dam-
ages. Thereafter, Johnson attempted to remove the rubber pro-
cessing equipment and the building but was denied access to
the property.
In December 1993, Lone Butte filed a claim in the Gila
River Indian Community Tribal Court, contesting the owner-
ship of the building and the rubber processing equipment
located on the property. Lone Butte sued International Rubber
and Bruce Johnson, as it believed that both defendants might
have ownership interests in the building and the equipment.
Lone Butte also sued International Rubber for its alleged fail-
ure to remove rubber tires from the property.
After receiving notice by mail, Johnson specially appeared
in the tribal court to challenge the tribal court's jurisdiction
over him and his property and to request transfer to federal
district court. He also filed an answer and a counterclaim,
alleging he was the rightful owner of the building and the rub-
ber processing equipment. The tribal court permitted Lone
Butte to amend its complaint and file an in personam claim
against Johnson for trespass and environmental nuisance.
Johnson challenged the tribal court's personal jurisdiction
over him.
In January 1995, a trial commenced in the tribal court. In
September 1995, the court announced its decision, issued
findings of fact, and held that Johnson was liable to Lone
Butte for $660,000--$500,000 of which was punitive dam-
ages.
Johnson attempted to file an appeal in tribal court. He filed
a notice of appeal in October 1995, requested the rules of the
appellate court, and requested the address of the clerk of the
appellate court. He received some of this information in
November 1995. Johnson then filed an appellate memoran-
dum. In December, Johnson wrote a letter to the clerk request-
ing more information, for example, when the appellate brief
was due, if there were additional rules other than those with
which he had been provided, and when and how he would
receive a transcript of the trial. At the same time, he sent the
clerk a copy of the transcript of the tribal court proceedings
that he had prepared at his own expense as well as copies of
his trial and post-trial briefs.
In January 1996, Lone Butte filed response briefs, addi-
tional memorandum, and two motions in tribal court. The par-
ties heard nothing from the appellate court for more than a
year. In March 1996, Lone Butte filed a request for a ruling
on the pending motions, but the clerk never responded to this
request.
On March 11, 1996, Johnson filed a complaint in the
United States District Court for District of Arizona, claiming
that the tribal court lacked personal jurisdiction over him, that
his property had been taken without just compensation, that
Lone Butte was liable for conversion, and asking the court to
issue an injunction to prevent Lone Butte from enforcing the
tribal court judgment. The district court, in May 1996, dis-
missed his complaint for failure to exhaust tribal remedies. In
October 1996, Lone Butte requested that the tribal appellate
court render a decision in the pending appeal.
In November 1996, Johnson filed a second complaint in the
same district court, this time alleging, in relevant part, that the
tribal court had violated the Indian Civil Rights Act and that
Lone Butte had wrongfully converted his property. Johnson
also asked the district court to issue a declaratory judgment
and an injunction prohibiting Lone Butte from enforcing the
tribal court judgment because he claimed that the tribal court
had lacked personal jurisdiction over him and his property. He
alleged that the district court had jurisdiction over the Tribe
under 28 U.S.C. S 1331, and over Lone Butte under 28 U.S.C.
S 1332. In October 1997, the district court again dismissed
Johnson's action.
II
[1] As sovereign nations, Indian tribes possess common
law immunity from suit in federal court. See Santa Clara
Pueblo v. Martinez,
436 U.S. 49, 58
(1978). Accordingly, the
district court correctly dismissed Johnson's claims against the
Tribe pursuant to the Indian Civil Rights Act ("ICRA"), 25
U.S.C. SS 1302(5) and 1302(8). The only recognized excep-
tion to a sovereign immunity defense under the ICRA is a
habeas corpus action. See Santa Clara,
436 U.S. at 59
; Pink
v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1189
(9th Cir. 1998). Because Johnson does not seek such relief,
and the Tribe has not waived its sovereign immunity defense,
the district court properly dismissed Johnson's claims against
the Tribe.2
III
[2] Because Lone Butte and Johnson are citizens of differ-
ent states and the amount in controversy exceeds $75,000, the
district court had concurrent jurisdiction with the tribal court
over Johnson's claims against Lone Butte pursuant to 28
U.S.C. S 1332.3
[3] When federal and tribal courts have concurrent jurisdic-
tion over a claim, "considerations of comity direct that tribal
remedies be exhausted before the question is addressed by the
District Court." Iowa Mut. Ins. Co. v. LaPlante,
480 U.S. 9
,
15 (1987); see also National Farmers Union Ins. Cos. v.
Crow Tribe,
471 U.S. 845, 857
(1985); Stock West Corp. v.
Taylor, 964 F.2d 912, 920 (9th Cir. 1992) (en banc).
[4] However, this prudential rule has exceptions, as the
Supreme Court noted in Iowa Mutual:
[E]xhaustion [is] not required where an assertion of
tribal court jurisdiction is motivated by a desire to
harass or is conducted in bad faith, or where the
action is patently violative of express jurisdictional
prohibitions, or where exhaustion would be futile
because of the lack of adequate opportunity to chal-
lenge the court's jurisdiction.
480 U.S. at 19
n.12 (citations and internal quotation marks
omitted).
[5] Johnson's primary claim is that a two-year delay in the
tribal appellate court renders his appellate claim futile. Delay
alone is not ordinarily sufficient to show that pursuing tribal
remedies is futile. However, if a functioning appellate court
does not exist, exhaustion is per se futile. See, e.g., Krempel
v. Prairie Island Indian Community, 125 F.3d 621, 622 (8th
Cir. 1997) (holding that a litigant need not exhaust tribal rem-
edies when no functioning court existed at the time the origi-
nal complaint was filed in district court). In this instance, the
lack of a briefing schedule, scheduled appellate argument, a
meaningful response to the notice of appeal, or an answer to
any of Johnson's correspondence for an abnormally extensive
period create doubt that a functioning appellate court exists.
Accordingly, Johnson raised sufficient genuine issues of
material fact as to whether exhaustion would be futile, thus
precluding dismissal of his claim.
[6] We therefore reverse the district court's dismissal of
Johnson's claims against Lone Butte and remand for the dis-
trict court to conduct a further inquiry into whether a suffi-
cient tribal appellate remedy exists for the purposes of
exhaustion. We affirm the dismissal of Johnson's claims
against the Tribe. Each party shall bear its own costs.
AFFIRMED IN PART, REVERSED IN PART AND
REMANDED. the end
_______________________________________________________________
FOOTNOTES
1 The Honorable Harlington Wood, Jr., Senior United States Circuit
Judge for the United States Court of Appeals for the Seventh Circuit, sit-
ting by designation.
2 Johnson argues that Dry Creek Lodge, Inc. v. Arapahoe & Shoshone
Tribes, 623 F.2d 682, 685 (10th Cir. 1980), affords him relief under the
ICRA. However, except in habeas corpus actions, this circuit has not rec-
ognized relief under the Act against a tribe in a civil action. See Pink, 157
F.3d at 1189; Snow v. Quinault Indian Nation , 709 F.2d 1319, 1323 (9th
Cir. 1983); Trans-Canada Enters., Ltd. v. Muckleshoot Indian Tribe, 634
F.2d 474, 476-77 (9th Cir. 1980). In addition, the Tenth Circuit has limited
Dry Creek to extraordinary circumstances not present in this case. See
Bank of Okla. v. Muscogee (Creek) Nation, 972 F.2d 1166, 1170 (10th Cir.
1992); White v. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir. 1984).
3 The tribal court had subject matter jurisdiction over the claims because
they arose out of commercial relationships with the Tribe on its reserva-
tion. See Strate v. A-1 Contractors,
520 U.S. 438, 446
(1997). We do not
reach the question of whether the tribal court had personal jurisdiction
over Johnson.
Ads by FindLaw