Abrams, Robert H

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To Sue and Not Be Sued (In State Court)

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Florida A&M University College of LawScholarly Commons @ FAMU LawJournal Publications Faculty Works1986To Sue and Not Be Sued (In State Court)Robert H. AbramsFlorida A&M University College of Law, robert.abrams@famu.eduFollow this and additional works at: http://commons.law.famu.edu/faculty-researchPart of the Environmental Law Commons, and the Water Law CommonsThis Article is brought to you for free and open access by the Faculty Works at Scholarly Commons @ FAMU Law. It has been accepted for inclusion inJournal Publications by an authorized administrator of Scholarly Commons @ FAMU Law. For more information, please contactlinda.barrette@famu.edu.Recommended CitationRobert H. Abrams, To Sue and Not Be Sued (In State Court), 1985-86 Preview U.S. Sup. Ct. Cas. 329 (1986)INDIAN RIGHTSTo Sue and Not Be Sued (In State Court)by Robert H. AbramsThree Affiliated Tribes of theFort Berthold Reservationv.Wold Engineering(Docket No. 84-1973)ArguedMarch 24, 1986This jurisdictional struggle finds an Indian tribeseeking access to North Dakota state court to sue non-Indians for breach of contract arising out of work doneon Indian reservation lands. The state of North Dakotarefused to entertain the suit, relying on a state "door-closing" statute that expressly conditions Indian accessto state court upon the surrender of tribal immunity tobe sued in state court. The Indians challenge the state'sauthority to so limit Indian access to state court.The case is in the United States Supreme Court forthe second time. Previously, the North Dakota courtsupheld the door-closing statute on a variety of grounds,many of which implicated difficult questions of federallaw. In its previous decision, the United States SupremeCourt found that the North Dakota Supreme Court mayhave relied on an erroneous interpretation of federallaw and therefore vacated the dismissal of the Indian'ssuit and remanded the case. The North Dakota SUopreme Court reinstated its earlier decision, this tinutaking into account the dictates of federal law explicatedby the United States Supreme Court.The United States Supreme Court is now faced witha new set of federal law based challenges to the requiredwaiver of Indian immunity to suit as a precondition toIndian use of state courts. While the case seems tiedclosely to a very complex array of statutes, the Court'sresolution of the bottom line issues of state-Indianpower relationships are of wider interest.ISSUESThe ultimate issue is this case is simple: Can the stateof North Dakota refuse to entertain lawsuits by Indiantribes or individual Indians in its civil courts if thewould-be-plaintiff Indians will not submit to the juris-diction of those same North Dakota courts for all pur-Robert H. Abrams is Professor of Law and Associate Dean atWayne State Law School, Detroit M1 48202; telephone (313)577-3973.1JSueNo.12poses? Put slightly differently, can the ability of Indiansto sue in the state court be conditioned on their waiverof immunity to suit in state court?Resolving the ultimate issue may require the UnitedStates Supreme Court to ponder a number of funda-mental precepts about the federal law limitations on thepower ofstates as sovereigns in their relations with tribesand individual Indians. First, the Supreme Court mustdecide if the state's door-closing statute is preempted by,or otherwise inconsistent with, federal laws governingIndian rights. Invalidation on this basis would rest onthe supremacy of federal law, especially the federal pol-icy of respect for tribal sovereignty evident in numerouscongressional enactments and previous United StatesSupreme Court decisions. If the North Dakota door-closing statute survives the Supremacy Clause, it mustnext pass muster under an equal protection scrutiny.Here, the Court must decide if North Dakota can openits courts to Indians on grounds different and morerestrictive than those on which their courts are open tonon-Indians.FACTSLong ago (1974) and far away in North Dakota, theIndians of the Fort Berthold Reservation contractedwith Wold Engineering and other defendants in thislawsuit to design and install an on-reservation public~orks project. When completed, the project would pro-vide much of the reservation with a reliable and safedomestic water system. When the system was completedin 1977 it was, even after attempts at repairs by de-fendants, alleged to be an unreliable failure for whichdamages were sought in 1980 in North Dakota statecourt. Thus, as it started out, this case was little rn, I ...than a simple breach of contract action, raising the mostordinary sort ofstate lawclaims for damanges.Wold Engineering did not immediately contest themerits, choosing instead to argue that the North Dakotatrial court lacked jurisdiction over the lawsuit. The prin-cipal ground for this defense was the assertion that thesitus of the alleged breach, being on the Indian reserva-tion, ousted the state court from jurisdiction as a matterof federal law. The trial court agreed and dismissed thecase.The tribe appealed to the North Dakota SupremeCourt which affirmed the decision but relied instead onthe chapter 27-19 of the North Dakota Century Codewhich required a waiver of Indian immunity as a pre-329condition lor Indian use of the state courts. This ratherunusual statute was held to be authorized by a federalstatute popularly known as Public Law 280, wich didauthorize some exercise of state judicial jurisdiction overactivities on Indian reservations. (See, 321 N.W.2d 510(N.D. 1982»The United States Supreme Court granted rertioraria first time and speaking through Justice Blackmun,vacated the decision of the North Dakota courts. Theopinion clarified certain aspects of the application of theoverarching federal statutes and found that it appearedthat the North Dakota Supreme Court might have basedits decision on improper application of federal law (104S.Ct. 2267 (1984». The North Dakota Supreme Courtafter new briefs and argument reinstated its prior deci-sion, admitting that the prior decision had been basedon erroneous interpretation of federal grounds, but nowfinding that the same result could be reached purely onslate grounds-the non-compliance by the tribe withsection 27-19 (364 N.W.2d 98 (N.D. 1985)1' Certiorariwas again sought and granted.BACKGROUND AND SIGNIFICANCEIndian-state sovereignty disputes have a long andsometimes bitter history that need not be recounted.This case, at one level, is yet another wager of theirsovereign wills. The state, here North Dakota, is pro-claiming its sovereign prerogative to limit access to itscourts to Indian plaintiffs that consent to North Dakotajurisdiction in the event that lawsuits are filed againstthem. The Indians on the other side are claiming thattheir sovereign immunity is not subject to abrogation byany action of a state.It is hard to gauge the significance of this case. Thespecific state door-closing statute appears to be uniqueto North Dakota. Thus, its constitutionality is not ofimmediate moment elsewhere. Similarly, there do notappear to be numerous other states waiting in the wingsto enact similar statutes in the event that Wold (and thestate of North Dakota) prevail in the litigation.If the statute is upheld, however, it represents an-other inroad of tribal sovereignty. Tribes and individualIndians can be forced to choose between retaining tradi-tional immunity from state court jurisdiction over on-reservation disputes and having no access to state courtfor on-reservation disputes. This is not a dire Hobson'schoice, for the Indian plaintiff can always retain theimmunity and seek a remedy in either tribal or federalcourt, but it may require Indian plaintiffs to forego themost convenient and efficacious forum. Still, even thismodest detriment to Indians represents an increase inthe power of the states at the expense of the tribes andindividual Indians.ARGUMENTSFor theAffiliated Tribes (Counsel of Record,john O. Holm, 17Second Avenue West, Dickinson, ND 58601; telephone (701)225·6066)330I. Excluding tribal and individual Indian plaintiffs fromstate courts when a similarly circumstanced non-In-dian would not be excluded violated the due processand equal protection guarantees of the FourteenthAmendment.2. The slate door-closing statute invidiously discrimi-nates against persons onthe basis of race and must besubjected to strict judicial scrutiny (i.e., it must befound to be necessary to support a compelling stateinterest) which it cannot survive.3. The door-closing statute is preempted by governingfederal law because it attempts to regulate Indianaffairs in a manner that is not permitted by governingfederal law.4. The door-closing statute violates the "open courts"guarantee of the North Dakota Constitution.For WoldEngineering (Counsel of Record, Gary H. Lee, 200Heritage Place, P. O. Box 939, Minot, ND 58702·0939;telephone (701) 852-3578)I. The denial of jurisdiction was based on an adequateand independent state law ground and therefore isnot open to review by the United States' SupremeCourt.2. The door-closing statute is not preempted by govern-ing federal law; the statute accepts the offer made byCongress in P.L. 280 to the states to assume jurisdic-tional responsibility over Indian country.3. The challenged statute is immune to equal protectioninvalidation because it represents a political compro-mise between the state of North Dakota and the In-dian people.4. The challenged statute is not subject to strict scrutinybecause the use of the racial classification is traceableto a specific congressional authority.AMICUS ARGUMENTSIn Supportofthe Affiliated TribesTwo separate Indian amici filed briefs: the StandingRock and Devils Lake Sioux Tribes and Tuttle MountainBand of Chippewa Indians. Both attacked the NorthDakota jurisdictional provision as violating due processand equal protection. The Sioux also claimed that fed-eral law preempted the statute while the Chippewaclaimed that the statute infringed on tribal sovereignty.In Support ofWold EngineeringThe state of North Dakota in support of its interestin the application of its jurisdiction statute urged affir-mance. The principal argument asserted that NorthDakota's statute was authorized by P.L. 280 and theNorth Dakota Constitution. The statute does not act as atotal bar to Indian access to the state's courts, but merelyconditions access on Indian waiver of immunity fromsuit in that same judicial system. Borrowing and adapt-ing a phrase popular in equity civil contempt jurispru-dence, the state argues that the tribes "hold the keys tothe courthouse."PREVI:EW

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To Sue and Not Be Sued (In State Court)

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