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Published online by Cambridge University Press: 27 February 2017
Our consideration of these questions of dominion and authority has its genesis in a personal tragedy. On January 14, 1986, Christine Gilham was fatally injured when the car in which she was a passenger struck a permanently anchored highway sign at the intersection of U.S. Highways 2 and 89 within the external boundaries of the Blackfeet Indian Reservation, located in the State of Montana. Toni Gilham (“Gilham”), Christine's mother, brought an action against the driver of the car, who was intoxicated at the time of the accident, and the State of Montana (“Montana”) in the Blackfeet Tribal Court. She alleged that Montana was negligent in its design, construction, and maintenance of the intersection.
* 127F.3d897(9thCir. 1997). Reproduced and reformatted for publication.
* Honorable John W. Sedwick, United States District Judge for the District of Alaska, sitting by designation.
1 Montana contends that the tribal court lacked jurisdiction under Strate.v. A-l Contractors,_U.S._, 117 S. Ct. 1404 (1997). However, whether the accident occurred on a right-of-way granted by the Blackfeet Tribe is a disputed genuine issue of material fact which the district court did not resolve, so we cannot consider it on summary judgment.
2 A more forceful view was expressed by Pennsylvania Delegate George Mason in commenting on the possibility that States could be sued in federal court: “Is this not disgraceful? Is this state to be brought to the bar of justice like a delinquent individual? Is the sovereignty of the state to be arraigned like a culprit, or private offender?” 2 Elliot's Debates in the Several State Conventions on the Adoption of the Federal Constitution 490 (2ded. 1863).
3 For example, 18 U.S.C. § 1162(a) (1970) affects the jurisdictional relationships between some States and tribes. However, it is not operative between the Blackfeet Indian Nation and Montana. Iowa Mut. Ins. Co. v. La Plante, 480 U.S. 9,13 n.7,107 S.Ct. 971, 976 n.7, 94 L.Ed.2d 10 (1987).
4 This result is consistent with immunity decisions in other contexts. For example, the United States, as a superior sovereign, is absolutely immune from unconsented suit in tribal court. United States v. Yakima Tribal Court, 806 F.2d 853, 858-60 (9th Cir. 1986). Further, tribes have retained their sovereign immunity even from claims raised in a compulsory counterclaim by a State to an action filed by the tribe. Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509-10 (1991).
5 In connection with a Nevada v. Hall analysis, “[t]ribal sovereign immunity … is not precisely the same as either international sovereign immunity or sovereign immunity among the States. “ Richardson v. Mt. Adams Furniture (In re Greene), 980 F.2d 590, 600 (9th Cir. 1992) (J. Rymer, concurring).
6 Even if Nevada v. Hall were extended to include Indian tribes, it could not apply to Gilham's suit. Nevada v. Hall was limited to cases in which the exercise of another sovereign's jurisdiction did not threaten “our constitutional system of cooperative federalism.” Id. at 424 n.24. Nevada v. Hall involved a simple case of respondeat superior tort liability for a traffic accident caused by a government employee. Potential liability for this type of action could not interfere with Nevada's capacity to fulfill its sovereign responsibilities. Id. See, e.g., Guarini v. New York, 521 A.2d 1362,1366-68, (N.J. Super. Ct. Ch. Div.) (New York immune from suit in New Jersey court because suit would “violate principles of cooperative federalism and interfere with New York's exercise of sovereign responsibilities“) (citing Nevada v. Hall, 440 U.S. at 424 n.24), aff’d, 521 A.2d 1294 (N.J. Super. Ct.App. Div. 1986). Gilham's suit directly implicates the exercise of Montana's sovereign functions. Gilham would hold Montana liable for its governmental decisions concerning highway design. This is far different from respondeat superior tort liability, which would normally only have financial effect. Because the suit's theory would affect governmental processes, it falls outside the scope of Nevada v. Hall. Additionally, Nevada v. Hall liability turns on the law of the forum sovereign concerning immunity. In this case, the Blackfeet Supreme Court has recognized Montana's sovereign immunity from suit in tribal court, although it erroneously construed Montana's Constitution as waiving that immunity.
7 Because Montana has partially waived sovereign immunity for tort suits in its own courts, Gilham has an adequate remedy by pursuing her action in Montana state courts. Gilham contends that Montana state courts would reject jurisdiction of her claim. However, this misreads State ex rel. Iron Bear v. District Court, 512 P.2d 1292 (Mont. 1973) and its progeny. Iron Bear specifically endorses the proposition that a tribal member “has the same rights as are accorded any other person to invoke the state courts to protect his rights in matters not affecting the federal government.” Id. at 1295. Iron Bear established criteria by which a Montana state district court should assess whether a suit was more appropriately heard in tribal court. Id. at 1299. However, under the circumstances presented in this case, where the tribal courts lack jurisdiction because of Montana's sovereign immunity, state court jurisdiction would be proper. Further, equitable tolling would prevent the assertion of a statute of limitations defense against Gilham based on the passage of time litigating in tribal and federal court if Gilham elects to refile her complaint in Montana state court. Chance v. Harrison, 899 P.2d 537, 539 (Mont. 1995).
8 Gilham reasons from the Constitution of Montana and Montana's Enabling Act, 25 Stat. 676 (1889), that federal law preempts Montana's immunity. However, the disclaimer provision in an enabling act has been construed as having no independent preemptive effect. Arizona v. San Carlos Apache Tribe, 463 U.S. 545,563 (1983). Further, the doctrine of preemption cannot apply here because there is no state action. Richardson, 980 F.2dat595.
9 For example, we decline to address whether agents of a State may be sued in tribal court or whether States may be subject to a contract suit in tribal court. Our holding is limited to the facts presented by this case: an individual filing a tort action against Montana in Blackfeet tribal court.