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.
))))))))))))))
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
ii
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.
)))))))))))))))))))))))
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 2 of 30
iii
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 3 of 30
iv
CERTIFICATE OF COMPLIANCE .................................................................. 24
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 4 of 30
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 5 of 30
vi
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 6 of 30
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.
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 7 of 30
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)
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 8 of 30
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).
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 9 of 30
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.
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 10 of 30
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.
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 11 of 30
6
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).
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 12 of 30
7
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 13 of 30
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 14 of 30
9
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 15 of 30
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.
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 16 of 30
11
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 17 of 30
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 18 of 30
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.
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 19 of 30
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 20 of 30
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.
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 21 of 30
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 22 of 30
17
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.
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 23 of 30
18
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.
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 24 of 30
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 25 of 30
20
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,
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 26 of 30
21
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).
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 27 of 30
22
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 28 of 30
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 29 of 30
24
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
Case 4:14-cv-00075-BMM Document 6 Filed 01/22/15 Page 30 of 30
Top Related