David M. Wagner CROWLEY FLECK PLLPApr 06, 2015 · Green, Ellen Burdeau, Randy Augare, Robert...

David M. Wagner Kelsey Bunkers CROWLEY FLECK PLLP P.O. Box 10969 Bozeman, MT 59719-0969 Telephone: (406) 556-1430 Fax: (406) 556-1433 [email protected] [email protected] Justin B. Lee Burk, Lee & Bieler, PLLC 216 Main Avenue North PO Box 1350 Choteau, MT 59422 Telephone: (406) 466-5755 Fax: (406) 466-5754 [email protected] Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, GREAT FALLS DIVISION

Glacier Electric Cooperative, Inc., Brian Elliott, Willard Hjartarson, Jim Newman, Darrol Berkrarn, Zita Bremner, Miles Lewis, Dave Losing, and James Taylor, in their official capacities as directors of Glacier Electric Cooperative, Inc., and Dan Brewer, in his official capacity as Interim General Manager of Glacier Electric Cooperative, Inc., Plaintiffs, v.

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CAUSE NO. 4:14-CV-00075-BMM

PLAINTIFFS’ BRIEF IN OPPOSITION TO

DEFENDANTS’ MOTION TO DISMISS

Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 1 of 30

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Floyd "Bob" Gervais, James Kittson, Scott Smith, Emerald "Beep" Grant, Suzie Murray, Tashina McNabb, William Guardipee, Fred Guardipee, Heather Juneau, Joseph Arrowtop, William Wetzel, Troy Wilson, Melissa Gervais, Wilfred DeRoche, Georgia Matt, Rodney "Minnow'' Gervais, Ralph Johnson, Mike Kittson, Kathy Broere, Lenore Matt, Evie Birdrattler, Rodney Gervais, Duane Ladd, Marcella Birdrattler, Tom Gervais, Jim Gervais, Marlene Matt, Wilfred DeRoche, Titus Upham, John DeRoche, Carl Evans, Jeri J. Elliott, Dennis Juneau, Teri Ann DeRoche, Paul McEvers, Patricia Calflooking, Tony Carlson, Sarah Calf Boss Ribs, Kathy Gervais, Marcella Green, Ellen Burdeau, Randy Augare, Robert Wagner, Kenny Walter, Honey Davis, Anna Horn, Cherlyl Gervais, Anita Potts, Therese Salois, Faith Gervais, and the Honorable Chief Judge Dave Gordon, Defendants.

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TABLE OF CONTENTS

INTRODUCTION ..................................................................................................... 1

ARGUMENT ............................................................................................................. 2

A. Defendants Have Not Complied With L.R. 7.1. .............................................. 2

B. Defendants Have Failed To Identify Any Standard Of Review Governing Their Motion. .......................................................................................................... 3

C. Defendants Ignore Factual Allegations in Plaintiffs’ Complaint That Must Be Accepted As True For Purposes Of A Motion Dismiss. ........................................ 8

D. Defendants’ Motion Includes Inadmissible Factual Representations And Disregards The Scope Of The Relief Defendants Seek In The Blackfeet Tribal Court Lawsuit. ....................................................................................................... 10

E. GEC, GEC’s Former Interim Manager, and GEC’s Trustees, Save One, Are Not Members Of The Blackfeet Tribe And Exhaustion of Tribal Court Remedies Is Not Required. .................................................................................................... 11

1. Under The Blackfeet Tribal Law And Order Code, The Blackfeet Tribal Court Does Not Have Jurisdiction Over Non-Indians. ...................................... 13

a. GEC Is Not An Indian. ................................................................................ 13

b. The Trustees And Dan Brewer Are Not Indians For Purposes of Tribal Court Jurisdiction. .............................................................................................. 18

F. The Tribal Court Does Not Have Jurisdiction Over this Matter Because Neither Montana Exception is Satisfied. .............................................................. 19

1. Defendants’ Allegations In The Tribal Court Lawsuit Are Not Based On Any Consensual Relationship Between Plaintiffs And The Tribe. ................... 20

2. Defendants’ Allegations In The Tribal Court Lawsuit Do Not Threaten the Welfare of the Tribe. .......................................................................................... 22

CONCLUSION ........................................................................................................ 23


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CERTIFICATE OF COMPLIANCE .................................................................. 24


v

TABLE OF AUTHORITIES

Cases

Airvator v. Turtle Mt. Mfg. Co., 329 N.W.2d 596 (N.D. 1983) ....................... 16, 17

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .............................................. 6

Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001) ............................................ 21

Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990) ............................. 5

Big Horn Co. Elec. Coop., Inc. v. Adams, 219 F.3d 944 (9th Cir. 2000) ..... 9, 17, 20

Bird v. Glacier Elec. Co-op, Inc., 255 F.3d 1136 (9th Cir. 2001) ............................ 16

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .......................................................... 6

Flat Center Farms, Inc. v. State Dept. of Revenue, 2002 MT 140, 310 Mont. 206, 49 P.3d 578 .............................................................................................. 14, 15, 16

Glacier Elec. Co-op, Inc. v. Williams, 96 F. Supp. 2d 1089 (D. Mont. 1999) ........ 16

Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005) ....................................................... 5

Kuntz v. Lamar Corp., 385 F.3d 1177 (9th Cir. 2004) ............................................. 17

Montana v. United States, 450 U.S. 544 (1981) ............................................... 19, 20

Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985) ..... 11

Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) ........................................................ 5

Nevada v. Hicks, 533 U.S. 353 (2001) ..................................................................... 12

Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099 (9th Cir. 2000) ....................................................................................................................... 7

Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978) ................................................ 19

Philip Morris USA, Inc. v. King Mt. Tobacco Co., 569 F.3d 932 (9th Cir. 2009) .. 21

Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008) . 5, 7, 11, 12, 19, 20, 22


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Reservation Tel. Co-op v. Henry, 278 F. Supp. 2d 1015 (D.N.D. 2003) ................ 20

Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035 (9th Cir. 2010) ....... 5

Strate v. A-1 Contractors, 520 U.S. 438 (1997) ............................. 12, 19, 20, 21, 22

Young v. U.S., 769 F.3d 1047 ( 9th Cir. 2014) .......................................................... 6

Statutes

28 U.S.C. § 1331 ........................................................................................................ 7

Mont. Code Ann. § 35-18-102(3) ............................................................................ 16

Other Authorities

Blackfeet Tribal Law and Order Code, Chapter 1, Section 1 .................................. 13

F. Cohen, Handbook on Federal Indian Law (1982 ed.) ......................................... 16

Rules

Fed. R. Civ. P. 12(b)(1) ............................................................................. 1, 4, 6, 7, 8

Fed. R. Civ. P. 12(b)(6) ................................................................................. 1, 4, 5, 8

Fed. R. Civ. P. 12(d) .................................................................................................. 4

Fed. R. Civ. P. 56 .......................................................................................... 1, 4, 6, 8

Fed. R. Civ. P. 56(a) ................................................................................................... 6

Fed. R. Civ. P. 56(c)(2) .............................................................................................. 7

L.R. 56.1(a) ................................................................................................................ 7

L.R. 56.1(d) ................................................................................................................ 7

L.R. 7.1 ...................................................................................................................2, 3

L.R. 7.1(c)(1) ............................................................................................................. 2

L.R. 7.1(d)(1)(A) ........................................................................................................ 2

L.R. 7.1(d)(2)(E) ........................................................................................................ 3


1

Defendants filed a Motion to Dismiss and Brief in Support. (Dkt. 3). Plaintiffs file

this Brief in Opposition to Defendants’ Motion to Dismiss.

INTRODUCTION

Defendants’ Motion to Dismiss and Brief in Support (“Motion”) fails to

comply both with the Federal Rules of Civil Procedure and the Local Rules of

Procedure. Defendants’ Motion does not identify a single Federal Rule of Civil

Procedure that governs the Motion. Defendants’ Motion also does not set forth

any standard of review which would suggest, for example, whether the Motion is

made under Fed. R. Civ. P. 12(b)(1), Fed. R. Civ. P. 12(b)(6), or Fed. R. Civ. P.

56. However, Defendants’ Motion nonetheless contains representations of fact,

none of which is supported by a citation to admissible evidence. See, e.g., Dkt. 3,

“II. Nature of the Case,” pp. 2-3.1 Defendants have not provided the Court with

the proper framework within which it can analyze Plaintiffs’ argument and, as a

result, Defendants’ Motion should be summarily denied.

Additionally, Plaintiffs’ Motion should be denied on the grounds that the

Blackfeet Tribe does not have adjudicative authority over Glacier Electric

Cooperative, Inc. (“GEC”), GEC’s Board of Trustees, and GEC’s former interim

manager, Dan Brewer. GEC is not an Indian or a member of the Blackfeet Tribe.

Dkt. 1, p. 7, ¶ 19; p. 13, ¶ 36. With the exception of Trustee Zita Bremner, none of

1 Defendants did not submit any affidavit in support of their Motion and Brief. See Dkt. 3.


2

the Trustees is a member of the Blackfeet Tribe. Id., pp. 4-6, ¶¶ 6-13. Similarly,

GEC’s former interim manager, Dan Brewer, is not a member of the Blackfeet

Tribe. Id., p. 6, ¶ 14.

Furthermore, contrary to what Defendants suggest, the relief Defendants

seek in the Tribal Court Lawsuit extends far beyond the delivery of electricity to

tribal members living within the exterior boundaries of the Blackfeet Indian

Reservation. See Dkt. 1, pp. 14-15, ¶ 41. Rather, Defendants, eleven of whom are

not members of GEC, seek to regulate and control the affairs of GEC without

regard to the voting rights of GEC’s membership or the provisions of GEC’s

Bylaws. See Id., p. 6, ¶ 17; pp. 14-15, ¶ 41; see also Dkt. 1-2. Defendants’ attempt

to wrest control of GEC from its duly elected Trustees and GEC’s membership is

improper and, even if it was proper, Blackfeet Tribal Court is not the proper forum

in which to adjudicate the matter. Thus, Defendants’ Motion must be denied.

ARGUMENT

A. Defendants Have Not Complied With L.R. 7.1.

As a preliminary matter, Defendants’ motion to dismiss should be

summarily denied because it fails to comply with L.R. 7.1. Under L.R. 7.1(c)(1),

the text of a motion must state that other parties have been contacted and whether

the other parties object to the motion. If a motion is opposed, L.R. 7.1(d)(1)(A)


3

requires the movant to file the motion separately from the brief. Defendants have

not complied with either of these Local Rules.2

Plaintiffs obviously object to Defendants’ Motion and Defendants’ failure to

note that in the text of their Motion is, on its face, a technical error. However,

presumably there is a substantive reason why the Local Rules require Defendants

to file the motion separately from the brief. While a brief should set forth the

reasons supporting the motion, the motion itself typically identifies the specific

Federal Rule of Civil Procedure authorizing the motion and the specific relief

requested. The Court’s standard of review is governed by the actual rule

authorizing the motion. Thus, the motion should, at a minimum, set forth the rule

of civil procedure, statute, regulation, or law authorizing the motion and the relief

requested. Defendants have not done this and their Motion should be denied for

failing to comply with L.R. 7.1.

B. Defendants Have Failed To Identify Any Standard Of Review Governing Their Motion.

Defendants’ failure to set forth the authority for their motion, as well as the

applicable standard of review, hampers Plaintiffs’ and the Court’s ability to

properly evaluate Defendants’ Motion. Plaintiffs should not have to divine the

procedural basis for Defendants’ motion and the corresponding standard of review.

2 Defendants’ Brief also does not include a certificate of compliance as required by L.R. 7.1(d)(2)(E).


4

In any event, regardless of the standard of review applied to this matter,

Defendants’ Motion should be denied.

Every defense to a claim for relief in any pleading must be asserted in the

responsive pleading if one is required. Fed. R. Civ. P. 12(b)(6). But, a party may

assert certain defenses by motion, such as the defense of lack of subject matter

jurisdiction or failure to state a claim upon which relief may be granted. Fed. R.

Civ. P. 12(b)(1) & 12(b)(6). If a party presents matters outside the pleadings in

connection with a Rule 12(b)(6) motion, and the Court does not exclude those

matters, then the motion must be treated as one for summary judgment under Rule

56 and all parties must be given a reasonable opportunity to present all material

that is pertinent to the motion. Fed. R. Civ. P. 12(d).

In the instant case, Defendants have not filed a responsive pleading and have

elected, instead, to file their Motion. Plaintiffs respectfully submit that

Defendants’ Motion is a Rule 12(b)(6) motion to dismiss for failure to state a claim

upon which relief can be granted. Alternatively, Plaintiffs may have intended to

bring their Motion under Rule 12(b)(1) (lack of subject matter jurisdiction), or

Rule 56 (motion for summary judgment), since the Motion and Brief reference

matters outside the pleadings. See Dkts. 3-1, 3-2, & 3-3. Different standards of

review govern each of these motions. Under any of these standards, Defendants’

Motion should be denied.


5

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) “tests the legal

sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A

dismissal under Rule 12(b)(6) is proper only if there is a “lack of a cognizable legal

theory or the absence of sufficient facts alleged under a cognizable legal theory.”

Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). A complaint

will survive a motion to dismiss if it asserts sufficient facts “to state a facially

plausible claim to relief.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d

1035, 1041 (9th Cir. 2010). The Court must accept all factual allegations in the

complaint as true and construe the complaint in the light most favorable to the

plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).

Here, Plaintiffs’ Complaint presents the question of whether the Blackfeet

Tribe has adjudicative authority over GEC, a nonmember of the Blackfeet Tribe,

GEC’s Board of Trustees, and GEC’s former interim manager. See Dkt. 1, p. 7, ¶

19. Whether a tribal court has adjudicative authority over nonmembers is a federal

question. See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S.

316, 324 (2008). Accepting all factual allegations in the Complaint as true and

construing the Complaint in the light most favorable to Plaintiffs, Plaintiffs have

set forth sufficient facts to state a facially plausible claim to relief and, therefore, if

Defendants’ Motion is made pursuant to Fed. R. Civ. P. 12(b)(6), it must be

denied.


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Similarly, if Defendants’ motion is made pursuant to Fed. R. Civ. P.

12(b)(1) or converted to a motion for summary judgment under Fed. R. Civ. P. 56,

it must be denied. A court reviewing a motion to dismiss for lack of subject matter

jurisdiction generally must accept as true the factual allegations of the plaintiff’s

complaint and ask whether the allegations set forth a claim sufficient to survive a

motion to dismiss. Young v. U.S., 769 F.3d 1047, 1052 ( 9th Cir. 2014). However,

if necessary, the court may hear evidence and resolve factual disputes. Id. If the

jurisdiction motion involves factual issues which also go to the merits, the court

should employ the standard applicable to a motion for summary judgment because

resolution of jurisdiction is, in effect, a decision on the merits. Id. Thus, the

moving party should only prevail if the material jurisdiction facts are not in dispute

and the moving party is entitled to judgment as a matter of law. Id.; see also Fed.

R. Civ. P. 56(a).

A party seeking summary judgment has the burden of informing the court of

the basis for its motion, and identifying those portions of the pleadings, admissions

on file, together with the affidavits, if any, which demonstrate the absence of a

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Material facts are those which may affect the outcome of the case. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).


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The moving party “without the ultimate burden of persuasion at trial—

usually, but not always, a defendant—has both the initial burden of production and

the ultimate burden of persuasion on a motion for summary judgment.” Nissan

Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir.

2000). “In order to carry its burden of production, the moving party must either

produce evidence negating an essential element of the nonmoving party's claim or

defense or show that the nonmoving party does not have enough evidence of an

essential element to carry its ultimate burden of persuasion at trial.” Id. Evidence

submitted to support a motion for summary judgment must be admissible. Fed. R.

Civ. P. 56(c)(2). A party seeking summary judgment must file a Statement of

Undisputed Facts. L.R. 56.1(a). The failure to file a Statement of Undisputed

Facts will be deemed an admission that material facts are in dispute. L.R. 56.1(d).

Here, Plaintiffs’ Complaint sets forth a claim sufficient to survive a motion

to dismiss under to Fed. R. Civ. P. 12(b)(1). The issue in this case is whether the

Blackfeet Tribe has adjudicative authority over Plaintiffs who, with the exception

of Zita Bremner, are not members of the Blackfeet Tribe. See Dkt. 1, p. 7, ¶ 19;

pp. 4-6, ¶¶ 6-13; p. 7, ¶ 19. Whether a tribal court has adjudicative authority over

nonmembers is a federal question and, therefore, this Court has jurisdiction over

the subject matter of this action pursuant to 28 U.S.C. § 1331. See Plains

Commerce, 554 U.S. at 324. Further, Defendants have failed to produce any


8

admissible evidence establishing that there is no genuine issue of material fact and

that they are entitled to judgment as a matter of law under Fed. R. Civ. P. 56. As a

result, regardless of whether Plaintiffs’ Motion is treated as a motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(b)(1), or it is converted to

a motion for summary judgment pursuant to Fed. R. Civ. P. 56, it should be denied.

C. Defendants Ignore Factual Allegations in Plaintiffs’ Complaint That Must Be Accepted As True For Purposes Of A Motion Dismiss.

As set forth in Plaintiffs’ Complaint, GEC is a non-profit, Montana rural

electric cooperative with its principal place of business in Cut Bank, Montana,

located outside the exterior boundaries of the Blackfeet Indian Reservation. Dkt.

1, p. 3, ¶ 3. GEC is subject to the provisions of Montana’s Rural Electric and

Telephone Cooperative Act, Title 35, Chapter 18 of the Montana Code Annotated.

Id. GEC is not an Indian, not a member of the Blackfeet Tribe, and not a tribal

entity. Id., p. 13, ¶ 36.

GEC’s service area includes Glacier County, Montana. Id., p. 10, ¶ 26.

GEC provides services to its members located within the exterior boundaries of the

Blackfeet Indian Reservation and to its members located outside the exterior

boundaries of the Blackfeet Indian Reservation. Id. The electricity GEC delivers

to its members is generated outside the exterior boundaries of the Blackfeet Indian

Reservation and is delivered to points on the Reservation through a system located

largely outside of the Reservation. Id., p. 10, ¶ 27. GEC has rights-of-way through


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the Blackfeet Indian Reservation which are the equivalent of non-Indian fee land.

Id., pp. 13-14, ¶ 38; Big Horn Co. Elec. Coop., Inc. v. Adams, 219 F.3d 944, 950

(9th Cir. 2000).

GEC’s Bylaws address and govern, among other matters, the requirements

of membership, the rights of members, the meetings of members, voting, elections,

the Board of Trustees, Trustee meetings and officers. Dkt 1, p. 4, ¶ 4. A person or

entity may be a member of GEC if the person or entity has “agreed to comply with

and be bound by the Articles of Incorporation and By-Laws of the Cooperative and

any rules and regulations adopted by the Board of Trustees.” Id., pp. 4, 11-12, ¶¶ 4

& 39.

In August 2014, Defendants filed a lawsuit in the Blackfeet Tribal Court

against Plaintiffs. Dkt. 1, p. 8, ¶ 24. The following Plaintiffs are GEC Trustees

and are not members of the Blackfeet Tribe: Brian Elliott, Willard Hjartarson, Jim

Newman, Darrol Berkram, Miles Lewis, Dave Losing, and James Taylor. Id., pp.

4-6, ¶¶ 6-13. Plaintiff Zita Bremner also is a GEC Trustee and an enrolled member

of the Blackfeet Tribe. Id., p. 5, ¶ 10. GEC’s former interim general manager,

Dan Brewer, is a named Plaintiff in this suit, but he is not an enrolled member of

the Blackfeet Tribe. Id., p. 6, ¶ 14. At the time Defendants filed the lawsuit

against Plaintiffs in the Blackfeet Tribal Court, eleven of the Defendants were not


10

members of GEC.3 Id., p. 6, ¶ 17. Defendants’ failure to acknowledge or address

these allegations, which must be accepted as true and construed in the light most

favorable to Plaintiffs, should result in the summary denial of Defendants’ Motion.

D. Defendants’ Motion Includes Inadmissible Factual Representations And Disregards The Scope Of The Relief Defendants Seek In The Blackfeet Tribal Court Lawsuit.

Defendants represent that they have information to believe that “cooperative

members are primarily Indian and more than half the cooperative’s revenue comes

from these members.” Dkt. 3, pp. 2-3. Defendants represent that GEC members

on the Blackfeet Indian reservation have not received electricity during the winter

months. Id. However, none of these representations is supported by admissible

evidence and, more importantly, Defendants’ Motion to Dismiss disregards the

actual relief they seek in the Tribal Court Lawsuit, which extends far beyond

whether certain members have electricity during winter months. See Dkt. 1-2.

Defendants effectively are seeking to vitiate the Bylaws to which all members have

agreed and to assume control over GEC corporate affairs.

Defendants have asked the Blackfeet Tribal Court to override and disregard

GEC’s Bylaws governing the distribution of GEC’s membership list, voting, the

conduct of elections, and election judges. Dkt. 1, pp. 14-15, ¶ 41.a. – b; see also

3 A legitimate question exists about whether these eleven Defendants have standing to assert any action against GEC or its Trustees.


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Dkt. 1-2. Defendants seek to control how and when GEC collects payment for

services provided to all members and to control the sale of GEC property,

including property that is not located within the exterior boundaries of the

Blackfeet Indian Reservation. Id., p. 15, ¶ 41.d. Defendants also seek to control

compensation of the Trustees, notwithstanding the provision in the Bylaws

governing compensation. Id., p. 15, ¶ 41.e. Finally, Defendants have asked the

Blackfeet Tribal Court to amend GEC’s Bylaws without following the proper

procedure set forth in the Bylaws. Id., p. 15, ¶ 41.f. Inadmissible factual

representations and Defendants’ recharacterization of the relief they seek in the

Tribal Court do not and cannot provide the basis for dismissing Plaintiffs’

Complaint in this case.

E. GEC, GEC’s Former Interim Manager, and GEC’s Trustees, Save One, Are Not Members Of The Blackfeet Tribe And Exhaustion of Tribal Court Remedies Is Not Required.

Tribal court jurisdiction over nonmembers is a federal question. Plains

Commerce Bank, 554 U.S. at 324. Thus, a party may bring a federal action to

challenge tribal court jurisdiction. Nat’l Farmers Union Ins. Cos. v. Crow Tribe of

Indians, 471 U.S. 845, 857 (1985).

Generally, federal courts must give the tribal court the opportunity to

determine its own jurisdiction. Id. Exhaustion of tribal court remedies is a

prudential rule based on comity; it is not a jurisdictional prerequisite to a federal


12

court action. Strate v. A-1 Contractors, 520 U.S. 438, 451 (1997). However, tribal

courts do not have subject matter jurisdiction over the activities of non-tribal

members within the tribe’s border and tribal efforts to regulate non-tribal members

are presumptively invalid. Plains Commerce Bank, 554 U.S. at 328,330.

The United States Supreme Court has outlined four exceptions to exhaustion

of tribal court remedies: (1) when an assertion of tribal court jurisdiction is

“motivated by a desire to harass or is conducted in bad faith”; (2) when the tribal

court action is “patently violative of express jurisdictional prohibitions”; (3) when

“exhaustion would be futile because of the lack of an adequate opportunity to

challenge the [tribal] court's jurisdiction”; or (4) when it is “plain” that tribal court

jurisdiction is lacking, so that the exhaustion requirement “would serve no purpose

other than delay.” Nevada v. Hicks, 533 U.S. 353, 369 (2001). In other words,

when the tribal court plainly does not have jurisdiction, there is no requirement to

exhaust tribal court remedies.

Here, GEC is not a member of the Blackfeet Tribe, Dan Brewer is not a

member of the Blackfeet Tribe, and none of the Trustees, save Zita Bremner, is a

member of the Blackfeet Tribe. However, since Defendants sued Ms. Bremner

solely to control her conduct as a Trustee, her status as a tribal member is

inconsequential because she cannot unilaterally make decisions for GEC or its

Board of Trustees. In effect, she cannot effectuate the relief Defendants seek in the


13

Tribal Court Lawsuit. Because tribal court jurisdiction is lacking in this case,

exhaustion of tribal court remedies is not required and this Court may properly

determine whether the tribal court has jurisdiction.

1. Under The Blackfeet Tribal Law And Order Code, The Blackfeet Tribal Court Does Not Have Jurisdiction Over Non-Indians.

Under the Blackfeet Tribal Law and Order Code, the Blackfeet Tribal Court

does not have jurisdiction over GEC because it is not an Indian. The Blackfeet Law

and Order Code specifically states that Tribal Court does not have jurisdiction over

non-Indians:

The Blackfeet Tribal Court has jurisdiction over all persons of Indian descent who are members of the Blackfeet Tribe of Montana and over all other American Indians unless its authority is restricted by an Order of the Secretary of the Interior. The Court does not have jurisdiction over non-Indians or over Indians from Canada. An Indian subject to the jurisdiction of the Blackfeet Tribal Court, including members of the Blackfeet Tribe, who also is employed in the Bureau of Indian Affairs, has a right to appeal from any sentence of the Court to the Secretary of the Interior, and the sentence if so appealed, does not become effective until approved by the Secretary.

Blackfeet Tribal Law and Order Code, Chapter 1, Section 1 (emphasis added).

Therefore, Defendants cannot establish a colorable claim of tribal jurisdiction over

GEC, the Trustees, or Dan Brewer.

a. GEC Is Not An Indian.


14

Plaintiffs incorrectly characterize the issue before this Court as “whether

GEC is an Indian owned entity or not.” See Dkt. 3, p. 5. The issue, however, is

not how many tribal members are members of GEC. The issue is whether GEC is

an Indian for jurisdictional purposes. These are mutually exclusive issues. Under

the applicable law, regardless of how many tribal members are members of GEC,

GEC is not an Indian for jurisdictional purposes. As an entity, GEC is a non-

profit, Montana corporation organized pursuant to Montana’s Rural Electric and

Telephone Cooperative Act. GEC is not a tribally chartered corporation or an

enrolled member of the Blackfeet Tribe. As a result, GEC is not an Indian for

purposes of determining whether the Blackfeet Tribal Court has jurisdiction over

this matter.

Defendants cite Flat Center Farms, Inc. v. State Dept. of Revenue, 2002 MT

140, 310 Mont. 206, 49 P.3d 578 for the proposition that GEC’s status as a

Montana corporation is not the determinative factor in deciding whether the tribal

court has jurisdiction. Dkt. 3, p. 5. However, Flat Center Farms does not have

anything to do with tribal court jurisdiction over a Montana corporation.

In Flat Center Farms, the sole issue before the Montana Supreme Court

was whether the Montana Department of Revenue could impose on Flat Center

Farms the Montana Corporation License Tax, a net income based tax imposed on

Montana corporations for the “privilege carrying on business in this state.” Flat


15

Center Farms, ¶ 9. The Montana Supreme Court held that, even though Flat

Center Farms was a Montana corporation, it was not subject to the license tax

because it was a tribally chartered corporation owned by Indians, it conducted its

business entirely on the Fort Peck Indian Reservation and, thus, it “did not carry on

business in this state.”4 Id., ¶ 15.

In reaching this conclusion, the Court noted that the situs of the activity the

State sought to tax is the primary factor in determining whether state taxation

jurisdiction exists. Id., ¶ 19. The Court reasoned:

However, and most importantly, the statutory language pursuant to which the State asserts taxing authority limits that authority based on the situs of the activity from which income is earned. Flat Center, whether it is technically a tribal “member” or not, conducts all its commercial activity and generates all the value that the State now targets for taxation on the Fort Peck Reservation.

Id., ¶ 20. Because Flat Center Farm’s commercial activity occurred on the Fort

Peck Reservation, outside of the state of Montana, the Montana Corporation

License tax did not apply to Flat Center Farms, Inc. See id. However, the Court in

Flat Center Farms did not hold, or even suggest, that a Montana corporation with

Indian members is an Indian for purposes of establishing tribal court jurisdiction.

Flat Center Farms also is not analogous to the case at bar. GEC is a

Montana corporation, it is not a member of the Blackfeet Tribe, it is not chartered

4 The parties in the Flat Center Farms case had stipulated that the tax payer conducted all of its business on the Fort Peck Reservation.


16

by the Blackfeet Tribe, its former manager is not a member of the Blackfeet Tribe,

its Trustees, save one, are not members of the Blackfeet Tribe, and it does not

conduct its business entirely on the Blackfeet Indian Reservation. See, e.g., Bird v.

Glacier Elec. Co-op, Inc., 255 F.3d 1136, 1139 (9th Cir. 2001); Glacier Elec. Co-

op, Inc. v. Williams, 96 F. Supp. 2d 1089, 1090 (D. Mont. 1999). Flat Center

Farms is distinguishable, inapplicable and should be disregarded by the Court.

GEC cannot be construed as an Indian merely because some of its members

are enrolled members of the Blackfeet Tribe. See Dkt. 3, pp. 8-9. GEC is a

creature of Montana law – it is an entity that exists solely as a result of Montana

laws that provide for the existence of Montana non-profit corporations and rural

electric cooperatives. Mont. Code Ann. § 35-18-102(3). A corporation created by

statute is treated by the law as though it were a fictional person, “or by regarding it

as an artificial person distinct and separate from its individual stockholders.”

Airvator v. Turtle Mt. Mfg. Co., 329 N.W.2d 596, 602 (N.D. 1983) (citing Moline

Properties,Inc. v. Commr. of Internal Revenue, 319 U.S. 436 (1943)). For

purposes of analyzing jurisdiction, “state-chartered corporations should be treated

as non-Indians independent of their percentage of Indian shareholders.” Airvator,

Inc., 329 N.W.2d at 602 (relying on F. Cohen, Handbook on Federal Indian Law

(1982 ed.)). Because a corporation is a distinct entity, for purposes of jurisdiction,

it is a citizen of, and is subject to, the jurisdiction of the courts of the state in which


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it is incorporated. Id. at 604. The status of shareholders, directors, officers, or

agents, as Indians or non-Indians, does not influence the status of the state-

incorporated corporation as either an “Indian” or a “non-Indian” corporation. Id.

“To give credence to the status of individual shareholders would overlook the

general theory of corporations relative to their status as a distinct entity.” Id.

Additionally, “such credence would promote an unmanageable and undesirable

method of determining jurisdiction because the possibility of a change in the

percentage of Indian shareholders.” Id.

Because GEC is separate and distinct from its members, the fact that some

of its members are enrolled members of the Blackfeet Tribe does not make GEC an

Indian. See Kuntz v. Lamar Corp., 385 F.3d 1177, 1182-1183 (9th Cir. 2004)

(finding a cooperative with a non-stock, non-profit, equal voting membership

structure is a corporation and, therefore, its members are irrelevant for purposes of

jurisdiction). In fact, the Ninth Circuit has disregarded the argument that an

electric cooperative is, in part, a tribal entity where tribal members make up

approximately half of the cooperative’s membership. See Big Horn County Elec.

Coop. v. Adams, 219 F.3d 944, 948-49 (9th Cir. 2000). Rather, the Ninth Circuit

has concluded that such an assertion is too vague to provide a sufficient basis for

holding that the cooperative was a tribal entity. Id.


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The same situation exists in this case. Even if more than half of GEC’s

membership was comprised of tribal members, GEC is still a non-Indian for

jurisdictional purposes. This conclusion is logical, particularly since, under

Defendants’ legal theory, GEC’s status as an Indian or non-Indian corporation for

purposes of jurisdiction could change from day to day depending upon the number

of tribal members obtaining electric service or terminating existing electric service.

The parties and Court would, therefore, be tasked with determining jurisdiction

every time a new member joined GEC or an existing member left GEC. This is not

the law. As a result, GEC is not an Indian and it is not subject to tribal court

jurisdiction.

b. The Trustees And Dan Brewer Are Not Indians For Purposes of Tribal Court Jurisdiction.

Defendants’ Motion makes no mention of the Trustees and interim general

manager they sued. However, seven of the Trustees are not Blackfeet Tribal

members. GEC’s former interim manager also is not a Blackfeet Tribal member.

Although Zita Bremner is a tribal member, Defendants have sued her in her official

capacity as a Trustee of GEC. See Dkt. 1-2. As noted above, however, Defendants

cannot seek the relief they desire in the Tribal Court Lawsuit against Ms. Bremner.

Thus, the Blackfeet Tribal Court does not have jurisdiction over the Trustees or

Dan Brewer. Accordingly, Defendants’ Motion should be denied because the

Blackfeet Tribal Court does not have jurisdiction over any of the Plaintiffs.


19

F. The Tribal Court Does Not Have Jurisdiction Over this Matter Because Neither Montana Exception is Satisfied.

Defendants also cannot establish a colorable claim of tribal court jurisdiction

because neither of the Montana exceptions is satisfied. Generally, tribal courts do

not have subject matter jurisdiction over the activities of non-Indians within their

borders. Plains Commerce Bank, 554 U.S. at 328. Tribal efforts to regulate non-

tribal members are presumptively invalid. Id. at 330. By incorporation into this

country, tribes lost “the right of governing . . . person[s] within their limits except

themselves.” Oliphant v. Suquamish Tribe, 435 U.S. 191, 209 (1978). The general

rule restricting authority over nonmembers is particularly strong when the tribe

seeks to regulate activities on fee simple lands. Plains Commerce, 554 U.S. at

328; see also Strate v. A-1 Contractors, 520 U.S. 438, 446 (1997).

In Montana v. United States, 450 U.S. 544 (1981), the United States

Supreme Court set forth two limited exceptions, also known as the Montana

exceptions, by which a tribe may exercise jurisdiction over non-Indian activities.

The first Montana exception provides that “[a] tribe may regulate, through

taxation, licensing, or other means, the activities of nonmembers who enter

consensual relationships with the tribe or its members, through commercial

dealings, contracts, leases, or other arrangements.” Id. at 565. The second

Montana exception is that “[a] tribe may . . . exercise civil authority over the


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conduct of non-Indians on fee lands within its reservation when that conduct

threatens or has some direct effect on the political integrity, the economic security,

or the health or welfare of the tribe.” Id. at 566. These two exceptions, however,

are limited and cannot be construed in a manner that would “swallow the rule,” or

“severely shrink it.” Plains Commerce Bank, 554 U.S. at 330. Because neither

exception applies, Defendants cannot establish a colorable claim of tribal court

jurisdiction.

1. Defendants’ Allegations In The Tribal Court Lawsuit Are Not Based On Any Consensual Relationship Between Plaintiffs And The Tribe.

As a preliminary matter, GEC has not entered into a “consensual

relationship” with the Tribe or its members as a result of providing electricity on

the Reservation. Reservation Tel. Co-op v. Henry, 278 F. Supp. 2d 1015, 1023

(D.N.D. 2003). To the extent GEC conducts any activities on the Reservation, it

conducts those activities within its rights-of-way, which are non-Indian fee land.

See Strate, 520 U.S. at 445-46; see also Big Horn County Electric Co-op., Inc. v.

Adams, 219 F.3d 944, 950 (9th Cir. 2000). GEC’s use of non-Indian fee land

within the Reservation does not constitute a “consensual relationship” with the

Tribe.

Additionally, Defendants seek to regulate GEC property located outside of

the exterior boundaries of the Blackfeet Reservation. See Dkt. 1-2. For example,


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Defendants’ Tribal Court Complaint seeks court regulation of: (1) all pre-pay

meters; (2) sale of GEC property located outside the exterior boundaries of the

Blackfeet Reservation; (3) deposits for electricity by customers located outside the

exterior boundary of the Reservation; and (3) use of GEC money. See id. Thus,

there is no colorable claim for tribal jurisdiction.

Even if a consensual relationship exists, the consensual relationship

exception does not apply because Defendants’ allegations in the Tribal Court

Lawsuit are not based on any relationship between GEC and the Tribe. The

consensual relationship exception will not apply unless the cause of action actually

arises from the relationship invoked for jurisdictional purposes; otherwise the

relationship has no bearing on the case or the jurisdiction of the court. See e.g.,

Strate, 520 U.S. at 457-58. Random agreements which do not affect the outcome

of the case should be ignored. Id. “The mere fact that a nonmember has some

consensual commercial contacts with a tribe does not mean that the tribe has

jurisdiction over all suits involving that nonmember, or even over all such suits

that arise within the reservation; the suit must also arise out of those consensual

contacts.” Philip Morris USA, Inc. v. King Mt. Tobacco Co., 569 F.3d 932, 941

(9th Cir. 2009). In other words, “[a] nonmember’s consensual relationship in one

area does not trigger tribal civil authority in another – it is not in for a penny, in for

a Pound.” Atkinson Trading Co. v. Shirley, 532 U.S. 645, 656 (2001).


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Defendants’ allegations in the Tribal Court Lawsuit are not based on any

relationship between GEC and the Tribe. While Defendants claim that GEC has

entered into contracts with tribal members to provide electricity to each of them,

most of whom reside on trust land (Dkt. 1-2, p. 5, ¶ 20), none of these alleged

agreements are at issue in the lawsuit filed in the Blackfeet Tribal Court. Rather,

the Tribal Court Lawsuit centers on GEC’s Bylaws and the alleged actions of

GEC’s directors – both of which are unrelated to the actual provision of service to

each of the Defendants. In fact, eleven of the Defendants are not even members of

GEC and none of the Defendants has asserted in their Motion any direct harm

arising from GEC’s alleged conduct in connection with any relationship between

the Tribe and GEC. Thus, the first Montana exception is not satisfied and does not

provide for tribal court jurisdiction over Plaintiffs.

2. Defendants’ Allegations In The Tribal Court Lawsuit Do Not Threaten the Welfare of the Tribe.

The second Montana exception – the political integrity exception – only

applies if the exercise of state or federal court jurisdiction would “menace” the

tribe’s ability to govern itself. Strate, 520 U.S. at 457-58. “The conduct must do

more than injure the tribe, it must imperil the subsistence of the tribal community.”

Plains Commerce Bank, 554 U.S. at 341. This elevated threshold suggests that

“tribal power must be necessary to avert catastrophic consequences.” Id. Federal

or state control over this case would not harm the Tribe’s ability to govern its own


23

members or reduce the Tribe’s control over internal relations. Defendants are not

claiming injuries arising from the Tribe’s inability to govern its own members or

control internal relations. In fact, Defendants do not even allege that Plaintiffs are

members of the Blackfeet Tribe. GEC’s internal governance and Bylaws do not

affect internal relations with the Blackfeet Tribe and, therefore the second

Montana exception does not apply. Because Defendants cannot satisfy either

Montana exception, the tribal court does not have jurisdiction over the lawsuit they

filed in tribal court and their Motion should be denied.

CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully request that the Court

deny Defendants’ Motion to Dismiss.

Dated this 22nd day of January, 2015.

CROWLEY FLECK PLLP /s/ David M. Wagner David M. Wagner Kelsey Bunkers P. O. Box 10969 Bozeman, MT 59719-0969 Justin B. Lee Burk, Lee & Bieler, PLLC 216 Main Avenue North PO Box 1350 Choteau, MT 59422 Attorneys for Plaintiffs


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CERTIFICATE OF COMPLIANCE

Pursuant to Rule 7.1(d)(2) of the United States Local Rules, I certify that

this Brief is limited to 6500 words, excluding caption and certificates of service

and compliance, printed in at least 14 points and is double spaced, except for

footnotes and indented quotations.

DATED this 22nd day of January, 2015.

/s/ David M. Wagner David M. Wagner


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