Healy Lake Village v. Mt. McKinley Bank

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
HEALY LAKE VILLAGE, d/b/a )
MENDAS CHA~AG TRIBE, a ) Supreme Court No. S-14987
Federally Recognized Indian Tribe, )
) Superior Court No. 4FA-12-01800 CI
Appellant, )
) OPINION
v. )
) No. 6890 – April 11, 2014
MT. McKINLEY BANK and )
HEALY LAKE TRADITIONAL )
COUNCIL, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael P. McConahy,
Judge.
Appearances: Michael J. Walleri, Gazewood & Weiner, P.C.,
Fairbanks, for Appellant. James D. DeWitt, Guess & Rudd,
P.C., Fairbanks, for Appellee Mt. McKinley Bank.
Richard D. Monkman and Samuel E. Ennis, Sonosky,
Chambers, Sachse, Miller & Munson, LLP, Juneau, for
Appellee Healy Lake Traditional Council.
Before: Fabe, Chief Justice, Stowers, and Bolger, Justices.
[Winfree and Maassen, Justices, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
Members of Healy Lake Village Tribe who claim to constitute the newly
elected tribal council brought suit in superior court against Mt. McKinley Bank after the
Bank refused to change the signatory authority on the Tribe’s accounts to reflect the
alleged leadership change. A second group of tribal members, who also claim to
represent the Tribe based on a competing election, was granted intervention in order to
contest the superior court’s jurisdiction. The superior court determined that the
fundamental issue in the case was the determination of the legitimate governing body of
the Tribe, which was an internal self-governance matter within the Tribe’s retained
inherent sovereignty. The superior court dismissed the case for lack of subject matter
jurisdiction, and the group that brought the initial action now appeals. Because
determining the real party in interest would have required the superior court to decide
matters solely within the Tribe’s retained inherent sovereignty, we affirm the superior
court’s dismissal of the case for lack of subject matter jurisdiction.
II. FACTS AND PROCEEDINGS
A. Tribal Election Dispute
Healy Lake Village, also known as the Mendas Cha~Ag Tribe, is a
federally recognized Indian tribe with a tribal constitution adopted in 1997.1 The tribal
constitution provides for the periodic election of a traditional council to serve as the
governing body of the Tribe, with the First Chief serving as the presiding officer. A
tribal election ordinance was adopted in 1998. Two separate groups each currently
contend that they are the properly elected and legitimate traditional council. The
1
Indian Entities Recognized and Eligible To Receive Services From the
Bureau of Indian Affairs, 77 Fed. Reg. 47868, 47872 (Aug. 10, 2012) (providing a
current list of federally recognized tribes).
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appellant group is led by Robert “Ray” Fifer, and the appellee group is led by JoAnn
Polston.
Both the Fifer Group and the Polston Group argue that the election that
seated the competing group failed to comply with tribal law and regulations. The Fifer
Group alleges a series of actions on the part of JoAnn Polston, beginning as far back as
2007, that it claims violated the tribal constitution. In the Fifer Group’s version of
events, JoAnn Polston was elected to the tribal council sometime prior to 2007. She then
“removed” the former First Chief, installed herself, and had de facto control of the Tribe
between 2007 and 2012. According to the Fifer Group, between 2007 and 2012 no tribal
elections were held, despite the constitutional provision that calls for tribal council
elections to be held the last week of March.2 The tribal constitution does not state
whether elections must be held each year;3 however, it does specify that the term of
office for traditional council members is two years.4 The record does not contain
documentary evidence of elections between 2007 and 2012, nor does the Polston Group
claim that elections took place during that period.
The tribal constitution provides for the possibility of tribal courts, but the
Tribe has not established one. The tribal council does have the power to establish tribal
2
Traditional Constitution of the Mendas Cha~Ag Tribe, art. 8, § 3:
Section 3. Traditional Council Elections. Elections for
Traditional Council positions shall be held the last week in
March in Healy Lake. The Council shall set the date and
shall give at least two (2) weeks notice of such elections.
Notice shall be posted in public places in Healy Lake prior to
such elections.
3
Id.
4
Id. art. 4, § 6.
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courts or other judicial bodies,5 and the council is given authority to regulate matters
such as child custody, domestic relations, and inheritance.6 The Fifer Group states that
there is no tribal court, and the Polston Group does not dispute this fact. The tribal
constitution provides for the recall of any member of the tribal council and a special
election upon receipt of a “[a] valid petition requesting such recall signed by at least 50%
of the qualified voters . . . . If the Council fails to call a special election to consider the
recall, the tribal membership may hold a tribal membership meeting to conduct such
business.”7 The Mendas Cha~Ag Tribal Election Ordinance also provides a procedure
for challenging election results:
Section 12. Challenging Election Results
As specified in the Constitution, tribal members may
challenge election results if the terms of the Mendas Cha~Ag
Traditional Constitution or the tribal Election Ordinance are
violated. Such challenge may be done through a petition and
election process. A petition must be circulated and signed by
at least 50% of qualified tribal voters. The petition shall state
the violation of the Mendas Cha~Ag Constitution or Election
Ordinance. Once presented to the Council, the Council shall
hold a new election following the procedures outlined in the
Mendas Cha~Ag Constitution and the tribal Election
Ordinance. If the Tribal Council fails to hold such an
election within 30 days after receiving the petition, the tribal
membership may meet to conduct a new election. At such a
meeting, 50% of qualified voters shall constitute a quorum.
In 2011 the Fifer Group circulated a petition calling for new elections,
which the Fifer Group claims was signed by over 50% of the tribal membership in
5
Id. art. 9, § 3(j).
6
Id. art. 9, § 3(m)-(o).
7
Id. art. 7, § 2.
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compliance with the constitutional and election ordinance provisions. The Fifer Group
alleges that the tribal council, led by Polston, took no action on the petition, and that on
April 28, 2012, the tribal membership conducted a tribal election with the assistance and
under the observation of the Bureau of Indian Affairs [BIA] Fairbanks Agency
Superintendent, Kathy Cline, and Tribal Operations staff from the Tanana Chiefs
Conference. The Fifer Group was elected as the tribal council at the April 28 election.
The Polston Group alleges various irregularities in the April 28 election and
disputes the Fifer Group’s leadership claim. In her affidavit, JoAnn Polston claims that
the Fifer Group failed to provide notice of the election to many tribal members and to
follow constitutional requirements for recalling a sitting council. She asserts that the
election dispute is “solely a matter for my Tribe’s resolution” and describes an attempt
to resolve the dispute at a tribal “Talking Circle.” She asserts that the Fifer Group’s
claim to majority support rests on a disputed definition of tribal membership: “[the Fifer
Group] disputes the membership of many lineal descendants of original Tribal enrollees.
Its count of Tribal members is much smaller than actual Tribal membership.”
On May 14, 2012, JoAnn Polston issued a notice of elections to be held on
July 14, 2012, in Fairbanks. The record contains a certificate and report from a tribal
election committee certifying that an election was held on July 14 and that JoAnn
Polston was elected as First Chief. The certificate form contains spaces to insert the
number of undisputed adult tribal members that were present at the election; these spaces
are left blank. The Fifer Group alleges a variety of irregularities and tribal constitutional
violations in the July 14 election, including disputed issues of tribal membership. On
August 23, 2012, the United States Department of Transportation renewed a federal
transportation funding agreement with the Tribe, and JoAnn Polston signed on behalf of
the Tribe after informing the Department of the internal dispute.
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B. Tribal Account Access
The Mendas Cha~Ag Tribe has over $1,000,000 on deposit in various
accounts with Mt. McKinley Bank. The Bank’s deposit agreement form for business
accounts opened by legal entities provides that the Bank “may require the governing
body of the legal entity opening the account to give us a separate authorization telling
us who is authorized to act on its behalf. We will honor the authorization until we
actually receive written notice of a change from the governing body of the legal entity.”
Most of the tribal accounts provide for single signatory authority. JoAnn Polston has
been a signatory on the accounts since 2005.
After the April 28 election, the Fifer Group informed the Bank that the
governing body of the Tribe had changed and sought to gain access to the tribal
accounts. On April 30, 2012, Kathy Cline, the BIA Superintendent, sent a letter to
Mt. McKinley Bank informing the Bank that she “had official oversight of the 2012
Election for the Healy Lake tribal membership on April 28, 2012 here in Fairbanks and
certify its validity. The Bureau of Indian Affairs lawfully recognizes the following
elected members [the Fifer Group] to conduct official business on behalf of the Healy
Lake Traditional Council.”
On May 1, 2012, Cline rescinded her previous letter: “[p]lease [accept] my
apologies but I am rescinding my letter dated April 30, 2012. The Bureau of Indian
Affairs does not have the authority to certify a tribal election.” On the same day, the
attorney for the Polston Group sent a letter to the Bank offering his legal opinion that the
Fifer Group had no legal authority to act on behalf of the Tribe and requesting that the
Bank return full signatory authority to JoAnn Polston. He asserted that the Polston
Group remained the current tribal leaders and retained the legal authority to control the
tribal bank accounts. On May 7 the attorney for the Fifer Group sent a letter to the Bank
reasserting the authority of the Fifer Group, alleging improper accounting and
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misappropriation of tribal funds by JoAnn Polston, and requesting that the Bank freeze
the tribal accounts until the dispute could be resolved or a receiver appointed. On
May 11, 2012, the Bank responded to the Fifer Group and informed them that the
accounts could not be frozen until the Bank was indemnified or received a court order.
The Bank suggested that the Fifer Group take appropriate action through the Alaska
Court System.
The Bank referred the Fifer Group to AS 06.05.145, which it believed
pertained to conflicting claims of account ownership and signature authority.8 On
May 18, 2012, Ray Fifer filed an affidavit with the Bank pursuant to AS 06.05.145 to
put the Bank on notice that the funds on deposit were held subject to fiduciary
8
AS 06.05.145 provides:
Adverse claim to a bank deposit. Notice to a bank of an
adverse claim to a deposit standing on its books to the credit
of a person is ineffective unless the adverse claimant procures
a restraining order, injunction or other appropriate process
against the bank from a court in a cause where the person to
whose credit the deposit stands is made a party or executes to
the bank in form and with sureties acceptable to it a bond,
indemnifying the bank from any liability, loss, damage, costs
and expenses on account of the payment of the adverse claim
or the dishonor of the check or other order of the person to
whose credit the deposit stands on the books of the bank.
This section does not apply where the person to whose credit
the deposit stands is a fiduciary for the adverse claimant, and
the facts constituting that relationship and the facts showing
a reasonable belief on the part of the claimant that the
fiduciary is about to misappropriate the deposit are made to
appear by the affidavit of the claimant.
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obligations owed to the Tribe and its members and that Ray Fifer had reason to believe
that JoAnn Polston intended to misappropriate the funds.9
C. Superior Court Proceedings
On June 6, 2012, the Fifer Group filed a petition for declaratory relief
against Mt. McKinley Bank to determine the party authorized to act on behalf of the
Tribe and access tribal accounts. The petition did not name the Polston Group as a
defendant. On July 25 the Bank answered and moved to dismiss pursuant to Alaska
Civil Rules 12(b)(7) and 19 for failure to join the Polston Group as an indispensable
party. The motion detailed the risk of inconsistent judgments if the Polston Group later
filed suit. It also set out the Bank’s position that “[t]he dispute here is really about who
controls and is the control group for the Tribe. It is a dispute over which the Tribe
retains its sovereign rights and this court lacks jurisdiction.” The Bank’s motion stated
that “once the Tribe, the dissenting group and the incumbent group, resolve this dispute
regarding control, then the Bank will honor the outcome, including any global settlement
signed by all the interested persons or a court order identifying who may speak on behalf
of the Tribe.”
On July 31 the Polston Group applied for a limited intervention and moved
to dismiss the action for failure to join indispensable parties and for lack of subject matter
jurisdiction. The Bank joined these motions. The Polston Group asserted that the Tribe
did not waive sovereign immunity by this limited intervention. The Fifer Group opposed
the motion to dismiss and requested a continuance pursuant to Alaska Civil Rule 56(f)
in order to conduct discovery on a variety of matters, including the amount on deposit
with the Bank, the source of the funding, government restrictions on the funding, the
9
See id.
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terms and conditions of the depository agreements, and relevant waivers of sovereign
immunity that may exist.
On August 16 the superior court held a hearing and subsequently issued an
order granting the Polston Group’s motion to intervene. The superior court concluded
that because the Polston Group had been granted intervention, the Bank’s Rule 12(b)(7)
motion was moot, and the court would consider the motion to dismiss as a Rule 12(b)(1)
motion only. The court determined that “[i]n the final analysis the jurisdiction of this
court to proceed is the threshold issue.”
The court also rejected the Fifer Group’s argument that because the Bank’s
motion included exhibits outside of the pleadings, it must therefore be converted to a
motion for summary judgment. The court reasoned that a Rule 12(b)(1) motion, unlike
a Rule 12(b)(6) motion, allowed the court to consider materials outside the pleadings.
The court therefore denied the Fifer Group’s request for Rule 56(f) discovery and
considered the documents, letters, and affidavits that the parties had attached to their
motions.
On October 16, 2012, the superior court conducted oral argument, and on
November 6 granted the Rule 12(b)(1) motion to dismiss. The superior court’s order
reviewed federal and state case law from other jurisdictions as well as several Alaska
decisions. From this review the superior court concluded that “[a] district court
oversteps its boundaries of jurisdiction, and acts without authority, where it attempts to
interpret a tribal constitution and bylaws, and to address the merits of an election
dispute.” The superior court acknowledged that some matters are outside of tribal
jurisdiction and that there is no dispute that a tribe “can access state courts for relief
against a bank doing business in Alaska.” But “[w]here a district court must initially
resolve an underlying intra-tribal dispute and determine the rightful governing body of
the tribe . . . in order to subsequently be able to address a question of law that is
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potentially outside the scope of tribal jurisdiction[,] that court lacks jurisdiction to
address such matters and to make such a determination.” The superior court treated its
subject matter jurisdiction as a threshold issue and did not reach the Polston Group’s
sovereign immunity arguments or the Fifer Group’s comity arguments, reasoning “[t]his
court does not reach an issue of comity unless and until issues of subject matter
jurisdiction are resolved.” The superior court concluded:
This claim is really about who controls the tribe. The court
finds that determining who controls the tribe is an internal
function involving tribal membership and domestic affairs
and lies within a tribe’s retained inherent sovereign powers.
The court does not have subject matter jurisdiction to
determine who is the real party in interest. The Fifer Group’s
factual arguments regarding the merits of the Polston Group’s
election cannot be decided by this court.
The Fifer Group now appeals the superior court’s dismissal of its suit for
lack of subject matter jurisdiction as well as its rulings on summary judgment and
discovery.
III. STANDARD OF REVIEW
Generally, “[w]e review a trial court’s procedural decisions for abuse of
discretion,”10 including the denial of a Civil Rule 56(f) motion.11
The superior court dismissed the Fifer Group’s action for lack of subject
matter jurisdiction under Civil Rule 12(b)(1). “We review de novo a superior court’s
10
Childs v. Childs, 310 P.3d 955, 958 (Alaska 2013) (citing Brotherton v.
Warner, 240 P.3d 1225, 1228 (Alaska 2010)).
11
Parson v. Marathon Oil Co., 960 P.2d 615, 618 (Alaska 1998) (citing
Gamble v. Northstore P’ship, 907 P.2d 477, 485 (Alaska 1995)).
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decision to dismiss a complaint for lack of subject matter jurisdiction.”12 “In exercising
our independent judgment, we will adopt the rule of law that is most persuasive in light
of precedent, reason, and policy.”13
IV. DISCUSSION
A. The Superior Court Did Not Commit Reversible Error By Treating
The Motion To Dismiss As A Rule 12(b)(1) Motion Or By Denying The
Fifer Group’s Civil Rule 56(f) Motion To Conduct Additional
Discovery.
On July 25, 2012, the Bank answered the Fifer Group’s complaint and
moved to dismiss pursuant to Alaska Rules of Civil Procedure 12(b)(7) and 19. The
Polston Group moved to intervene and moved for the superior court to dismiss on the
basis of Civil Rule 12(b)(1) as well as Rules 12(b)(7) and 19, adding the argument that
subject matter jurisdiction was lacking because the matter involved a question of tribal
self-governance. The superior court considered documents outside of the pleadings to
determine whether it should dismiss the action for lack of subject matter jurisdiction, and
dismissed the case on that basis. The Fifer Group contends that the consideration of
material outside of the pleadings necessitated the conversion of the motion into a motion
for summary judgment. The Fifer Group now appeals the superior court’s decision not
to convert the motion to dismiss into a motion for summary judgment as well as the
denial of its Rule 56(f) motion.
The Fifer Group cites Price v. Unisea, Inc., in which we explained that
“[w]hen materials outside the pleadings are submitted with regard to a motion to dismiss
12
Ruckle v. Anchorage Sch. Dist., 85 P.3d 1030, 1033 (Alaska 2004) (citing
Andrews v. Alaska Operating Eng’rs-Emp’rs Training Trust Fund, 871 P.2d 1142, 1144
(Alaska 1994)).
13
John v. Baker, 982 P.2d 738, 744 (Alaska 1999) (citing Guin v. Ha, 591
P.2d 1281, 1284 n.6 (Alaska 1979)).
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[under Rule 12(b)(6)], the superior court must either explicitly exclude the materials or
convert the motion into one for summary judgment under Alaska Rule of Civil
Procedure 56.”14 But Price addressed only a 12(b)(6) motion.15
The superior court expressly stated in its dismissal that it was treating the
“motion to dismiss as a 12(b)(1) motion only” as a response to the Fifer Group’s
conversion argument. The superior court cited federal precedent allowing for
consideration of evidence outside the pleadings when deciding a 12(b)(1) motion without
thereby converting that motion into one for summary judgment. Indeed, the federal
circuit court precedent for this proposition is extensive.16 Both the Bank and the Polston
Group urge this court to adopt the federal precedent and hold that Rule 56(f) does not
extend to Rule 12(b)(1) motions. But for the purposes of this case, we do not need to
reach the question whether consideration of materials outside the pleadings mandates
14
289 P.3d 914, 918 (Alaska 2012) (quoting Kaiser v. Umialik Ins., 108 P.3d
876, 879 (Alaska 2005)) (alteration in original).
15
Id. The text of Rule 12 also only directly addresses conversion of 12(b)(6)
motions:
If, on a motion asserting the defense numbered (6) to dismiss
for failure of the pleading to state a claim upon which relief
can be granted, matters outside the pleading are presented to
and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in
Rule 56 . . . .
(Emphasis added.)
16
See, e.g., Taylor v. KeyCorp, 680 F.3d 609, 612 (6th Cir. 2012); Muscogee
(Creek) Nation v. Oklahoma Tax Comm’n, 611 F.3d 1222, 1227 n.1 (10th Cir. 2010);
Rodriguez v. Christus Spohn Health Sys. Corp., 628 F.3d 731, 734 (5th Cir. 2010); Safe
Air for Everyone v. Meyer, 373 F.3d 1035, 1038-39 (9th Cir. 2004).
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conversion of a 12(b)(1) motion into a motion for summary judgment because
conversion would not have altered the jurisdictional analysis.
In addressing the conversion requirement of Rule 12(b), we have held that
“a reviewing court has three available options when it finds that the trial court has not
complied with the conversion requirements of Civil Rule 12(b)”:17
One alternative calls for reversal of the superior court for its
failure to comply with the requirements of Civil Rule 12(b)
and a remand for proper consideration as either a
Rule 12(b)(6) dismissal motion with the outside matters
expressly excluded or a Rule 56 motion for summary
judgment with the attendant requirements of that rule. A
second option is to review the superior court’s decision as a
Rule 12(b)(6) dismissal, treating that decision as if a motion
for dismissal had been granted after exclusion of the outside
materials as required. A third option is to review the superior
court’s decision as an entry of summary judgment, treating
that decision as if summary judgment had been granted after
the necessary conversion of the Rule 12(b)(6) motion into
one for summary judgment.[18]
Even if we assume that the superior court should have treated the motion
to dismiss as a motion for summary judgment under the third option, the jurisdictional
analysis would be the same. The superior court’s dismissal in this case was based on the
existence of an internal tribal election and membership dispute, and the superior court
already had before it the relevant information from the parties regarding the material
jurisdictional issues, including affidavits, memoranda, the depository agreements,
election notices, and other documents. None of the discovery requested by the Fifer
Group would have led to information negating the existence of a tribal election dispute
17
Demmert v. Kootznoowoo, Inc., 960 P.2d 606, 612 (Alaska 1998).
18
Id. (quoting Martin v. Mears, 602 P.2d 421, 427 (Alaska 1979)).
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and thus would not have altered the jurisdictional analysis even in the summary judgment
context.19
We have upheld a superior court’s denial of discovery requests after
conversion of a Rule 12(b) motion into a summary judgment motion when the requests
were overly broad and not designed to lead to information relevant to the jurisdictional
issue.20 The superior court in this case had before it all the information relevant to the
jurisdictional analysis after extensive submissions from all the parties, and the superior
court’s denial of the Fifer Group’s Rule 56(f) motion did not prevent the Fifer Group
from presenting all information available on the jurisdictional question. Because none
of the requested discovery would have led to information relevant to the jurisdictional
analysis,21 the superior court did not err by treating the motion to dismiss as a
19
The Fifer Group requested discovery from the Bank on “1) the amount on
deposit with the Bank, 2) the source of such funding, 3) the federal and state restrictions
on such funding, 4) the terms and conditions of the bank depository agreements, and [5])
relevant waivers of sovereign immunity that may exist.” The first four items have no
relevance to the question of state court subject matter jurisdiction over a tribal election
dispute. And the issue of the waiver of sovereign immunity is secondary to the question
of which of the competing tribal councils is entitled to invoke sovereign immunity. As
discussed below, resolution of the legitimacy of the competing tribal councils entails an
impermissible inquiry into matters solely within the Tribe’s retained inherent
sovereignty.
20
Price, 289 P.3d at 923 (“The superior court did not err in holding that
Price’s discovery requests were too broad and were not designed to lead to information
on the immunity issue.”).
21
In the federal courts, the discovery requested by the Fifer Group has been
characterized as “jurisdictional discovery” and its denial has been upheld in “the absence
of any specific indication from the [plaintiffs] regarding ‘what facts additional discovery
could produce that would affect [the court’s] jurisdictional analysis.’ ” Cheyenne
Arapaho Tribes of Okla. v. United States, 558 F.3d 592, 596 (D.C. Cir. 2009) (first
(continued...)
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Rule 12(b)(1) motion or abuse its discretion by denying the Fifer Group’s Rule 56(f)
motion.22
B. The Superior Court Correctly Determined That Finding Jurisdiction
In This Case Necessitated An Inquiry Into A Tribal Self-Governance
Dispute.
In dismissing the case for lack of subject matter jurisdiction, the superior
court concluded that “there is no dispute that the real, fundamental, and initial issue to
resolve is who is the real party in interest to prosecute the claim against the bank” and
that determining the real party in interest would require reaching the merits of the Fifer
Group’s factual and tribal law arguments about the legitimacy of the two elections.
The Fifer Group attempts to avoid this conclusion by arguing that the case
does not involve an election dispute but is simply a matter of the Bank’s obligation under
their depository agreement to change account signatories when the Tribe’s officials
change. The Fifer Group also argues that the identity of the Tribe’s current officials is
at best a collateral issue raised by the Bank and the Polston Group. The Fifer Group
maintains that it does not seek to disturb the finality of tribal elections. But to achieve
the relief it seeks, the Fifer Group “ask[s] the Court to give full force and effect to a tribal
election which changed leadership in a manner prescribed by the Tribal Constitution.”
And it is this request, which is at the heart of the dispute with the Bank, that presents the
jurisdictional problem.
The Bank and the Polston Group correctly identify the centrality of the
dispute over the legitimacy of the competing tribal council elections. The Bank notes
21
(...continued)
alteration added) (quoting Mwani v. bin Laden, 417 F.3d 1, 17 (D.C. Cir. 2005)).
22
Price, 289 P.3d at 923 (“Since further discovery would not have changed
the superior court’s immunity analysis, it was properly denied by the superior court.”);
see also Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).
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that the Fifer Group and the Polston Group offer conflicting facts about who is the
legitimate tribal council and conflicting interpretations of the facts and of tribal rules.
The Polston Group argues that to determine the “valid leadership” of the Tribe, the state
court would be required “to perform a culturally-specific analysis of the interplay
between the Tribe’s Traditional Constitution, the Tribe’s oral history, tribal tradition and
tribal customs.”23
In response, the Fifer Group argues extensively that under tribal law the
Polston Group has no colorable claim to tribal authority. The Fifer Group’s arguments
are explicitly based almost entirely on tribal law; specifically the Fifer Group argues that
the Polston Group violated tribal law and that under tribal law the Fifer Group is the
legitimate tribal council. The Fifer Group itself states that there is “a material factual
dispute over whether the Tribe, under the direction of its duly elected governing body,
has filed suit against the Bank.” The Fifer Group acknowledges that JoAnn Polston had
leadership authority over the Tribe and signatory authority over the tribal accounts prior
to the April election.
The Fifer Group is asking the state court to force the Bank to change
signatory authority, which would require the court to evaluate the alleged violations of
23
In a footnote, the Polston Group details issues that it believes the superior
court would be required to determine, including:
Tribal custom concerning timing and frequency of elections,
interpretation of the Tribe’s Traditional Constitution, the
membership status of a large number of individuals who
claim Tribal membership, whether these Tribal members are
direct or culturally adopted descendants of those on the Tribal
base roll, which elders have knowledge of Tribal custom and
law and what do to [sic] if they disagree, and whether Tribal
law allows meetings and elections in Fairbanks in the
summer, rather than at Healy Lake during break up.
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tribal law and contested definitions of tribal membership. Therefore, we conclude that
the superior court was correct in its view that it could not have resolved the Fifer Group’s
claim against the Bank without an inquiry into the legitimacy of the competing tribal
elections.
C. The Superior Court Properly Dismissed This Case For Lack Of
Subject Matter Jurisdiction Because Determining The Real Party In
Interest Would Have Required The Superior Court To Decide
Matters Solely Within The Tribe’s Retained Inherent Sovereignty.
1. General jurisdictional framework
The Fifer Group argues that jurisdiction in this case is a straightforward
matter of state courts having jurisdiction over a claim by a tribe against a non-Indian
bank that arose outside of Indian country. The Fifer Group cites our decision in John v.
Baker24 as establishing the general framework for analyzing state court jurisdiction over
internal tribal matters. The Fifer Group focuses specifically on our holding in John v.
Baker that Alaska state courts retain concurrent jurisdiction over the type of child
custody disputes at issue in that case, and quotes our statement that “[o]utside Indian
country, all disputes arising within the State of Alaska, whether tribal or not, are within
the state’s general jurisdiction.”25 The Fifer Group reasons that because its claim arose
outside of Indian country and concerns an Indian plaintiff and non-Indian defendant, the
state courts have jurisdiction.
Neither the Bank nor the Polston Group disputes that the state court would
have jurisdiction over a claim of the Tribe against the Bank if there were no dispute
about tribal elections and legitimate tribal authority. But the Bank argues that the
language in John v. Baker quoted by the Fifer Group must be understood in the specific
24
982 P.2d 738 (Alaska 1999).
25
Id. at 759.
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context of that case, which we articulated as “the existence of concurrent state-tribal
jurisdiction over tribal family law disputes when one or both parents do not reside on
reservation land.”26
In John v. Baker, we began our analysis of tribal sovereign power to
regulate internal affairs with “the established principle under federal law that ‘Indian
tribes retain those fundamental attributes of sovereignty . . . which have not been
divested by Congress or by necessary implication of the tribe’s dependent status.’ ”27 We
recognized that modern tribal sovereignty “exists only at the sufferance of Congress and
is subject to complete defeasance. But until Congress acts, . . . Indian tribes still possess
those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a
necessary result of their dependent status.”28 We characterized United States Supreme
Court precedent as articulating “a core set of sovereign powers that remain intact even
though Indian nations are dependent under federal law; in particular, internal functions
involving tribal membership and domestic affairs lie within a tribe’s retained inherent
sovereign powers.”29 We also reiterated a principle found in an earlier Alaska case that
“Indian affairs are subject to state law but only to the extent that Congress explicitly so
provides.”30
26
Id. at 759-60.
27
Id. at 751 (omission in original) (quoting Merrion v. Jicarilla Apache Tribe,
455 U.S. 130, 146 (1982)).
28
Id. (omission in original) (quoting United States v. Wheeler, 435 U.S. 313,
323 (1978)).
29
Id. (citing Wheeler, 435 U.S. at 326; Montana v. United States, 450 U.S.
544, 564 (1981)).
30
Id. (quoting Ollestead v. Native Vill. of Tyonek, 560 P.2d 31, 33 (Alaska
(continued...)
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In John v. Baker, we discussed the “dual nature” of Indian sovereignty,
extending beyond territorial control31 to issues of membership and self-governance.32
We reaffirmed that the “key inquiry” according to the United States Supreme Court is
not whether the tribe is located in Indian country, but rather
whether the tribe needs jurisdiction over a given context to
secure tribal self-governance: “If state-court jurisdiction over
Indians . . . would interfere with tribal sovereignty and self-
government, the state courts are generally divested of
jurisdiction as a matter of federal law.”[33]
In finding concurrent jurisdiction, we quoted approvingly a Montana
decision that noted “that recognition of concurrent jurisdiction reflected the delicate
balance under federal law of a state court’s ‘obligation to respect the sovereignty of
Indian tribes in relation to [the court’s] responsibility to uphold and enforce the laws of
this state.’ ”34 As the Polston Group recognizes, state court jurisdiction was appropriate
30
(...continued)
1977)).
31
This court has held that “[a]lthough Alaska no longer contains Indian
country, its Native villages ‘retain those fundamental attributes of sovereignty . . . which
have not been divested by Congress or by necessary implication of the tribe’s dependent
status.’ ” Runyon ex rel. B.R. v. Ass’n of Vill. Council Presidents, 84 P.3d 437, 439
(Alaska 2004) (quoting John, 982 P.2d at 751). One of these attributes is “the common-
law immunity from suit traditionally enjoyed by sovereign powers” which would seem
to be at least one important limiting factor for the expansive reach of state court
jurisdiction argued for by the Fifer Group. Id. (quoting Santa Clara Pueblo v. Martinez,
436 U.S. 49, 58 (1978)).
32
John, 982 P.2d at 756.
33
Id. (omission in original) (quoting Iowa Mut. Ins. Co. v. LaPlante, 480 U.S.
9, 15 (1987)).
34
Id. at 760 (alteration in original) (quoting In re Marriage of Skillen, 956
(continued...)
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in the child custody dispute at issue in John v. Baker because it furthered the state and
federal laws designed to protect Alaska Native children without interfering with tribal
self-governance. And unlike in the child custody context, the State of Alaska has no
cognizable interest in determining the outcome of this tribal leadership dispute in place
of a determination by the Tribe itself.35 Instead this case involves the identification of
tribal members and compliance with tribal election procedures which the Polston Group
and the Bank argue are issues reserved exclusively to the Tribe. We agree.
Because the state has no interest in determining the outcome of this internal
tribal dispute, the tribal election and membership dispute in this case remains within the
“tribe’s retained inherent sovereign powers.”36 We therefore conclude that the state court
lacks subject matter jurisdiction in this case because the state lacks an interest, and the
exercise of jurisdiction would require the state court to apply tribal law to determine the
outcome of a tribal election dispute and issues of tribal membership.
2. Federal and state precedent involving jurisdiction over tribal
election disputes
Federal and state precedent emphasizes the need to respect tribal self-
governance when resolving a claim that entails review of tribal elections. This precedent
supports our conclusion that the superior court’s dismissal for lack of subject matter
jurisdiction was proper.
34
(...continued)
P.2d 1, 18 (Mont. 1998)).
35
The Bank adds that this case does not involve issues of child custody, state
taxation, or even the state law of contracts and banking.
36
John, 982 P.2d at 751 (citing United States v. Wheeler, 435 U.S. 313, 326
(1978); Montana v. United States, 450 U.S. 544, 564 (1981)).
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The Eighth Circuit reached a similar conclusion in a series of decisions
arising from an election dispute with facts similar to the current case.37 In 2003 two
groups were competing for control of the tribal government of the Sac and Fox Tribe of
Mississippi in Iowa, a federally recognized Indian tribe.38 One group had been in power
prior to 2003, and an opposition group submitted petitions challenging the incumbent
group’s authority.39 According to the tribal constitution, receipt of such petitions
mandated a special election, but the incumbent group did not call an election.40 Like
Healy Lake Village, the Sac and Fox Tribe did not have a tribal court, so the petitioning
tribal members had no legal recourse or tribal remedy available other than appeal to the
incumbent group, which was rejected.41 The opposition group formed a new tribal
government and gained control of some of the tribe’s assets, including the tribal casino.42
The opposition group notified the banks that held gaming proceeds that it was the only
group with authority to act on behalf of the tribal accounts.43 Faced with uncertainty
over which group possessed authority to act on behalf of the tribe, the banks froze the
37
Attorney’s Process & Investigation Servs., Inc. v. Sac & Fox Tribe of
Mississippi in Iowa, 609 F.3d 927 (8th Cir. 2010); Sac & Fox Tribe of the Mississippi in
Iowa, Election Bd. v. Bureau of Indian Affairs, 439 F.3d 832 (8th Cir. 2006); In re Sac
& Fox Tribe of Mississippi in Iowa/Meskwaki Casino Litig. (Meskwaki Casino Litig.),
340 F.3d 749 (8th Cir. 2003).
38
Meskwaki Casino Litig., 340 F.3d at 751.
39
Id.
40
Id.
41
Id.
42
Id. at 751-52.
43
Id.
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accounts.44 Federal litigation ensued, and the district court dismissed the action,
concluding that it lacked subject matter jurisdiction to decide an intra-tribal dispute.45
The Eighth Circuit upheld the district court’s dismissal of the claims involving intra­
tribal matters.46
In Meskwaki Casino Litigation, the Eighth Circuit reaffirmed its earlier
holding that the non-gaming claims in the case were “non-justiciable” because “[t]hey
seek a form of relief that the federal courts cannot provide, namely, resolution of the
internal tribal leadership dispute.”47 While none of the non-gaming claims were
expressly framed as an election dispute, the court determined that “[r]elief unrelated to
gaming could only be granted to the extent the court could first resolve the intra-tribal
dispute and determine whether the [opposition group] was the rightful governing body
of the tribe.”48 “Jurisdiction to resolve internal tribal disputes, interpret tribal
constitutions and laws, and issue tribal membership determinations lies with Indian tribes
and not in the district courts.”49 The court relied on earlier precedent characterizing an
election dispute between competing tribal councils as a non-justiciable intra-tribal
44
Id.
45
Id. at 752-53.
46
Id. at 767.
47
Id. at 763.
48
Id. at 764.
49
Id. at 763 (citing United States v. Wheeler, 435 U.S. 313, 323-36 (1978)
(noting that Indian tribes are “unique aggregations possessing attributes of sovereignty
over both their members and their territory”)).
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matter.50 In 2010 the Eighth Circuit characterized its 2003 decision as reaffirming “the
long established principle that ‘[t]ribal election disputes, like tribal elections, are key
facets of internal tribal governance and are governed by tribal constitutions, statutes, or
regulations.’ ”51 The court then reiterated its holding that “[b]ecause tribal governance
disputes are controlled by tribal law, they fall within the exclusive jurisdiction of tribal
institutions.”52 Other federal decisions53 dealing with access to tribal bank accounts after
an election dispute reach the same conclusion as the Eighth Circuit.54
50
Id. at 764 (citing Goodface v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983)
(“[T]he district court overstepped the boundaries of its jurisdiction in interpreting the
tribal constitution and bylaws and addressing the merits of the election dispute.”)).
51
Attorney’s Process & Investigation Servs., Inc. v. Sac & Fox Tribe of
Mississippi in Iowa, 609 F.3d 927, 943 (8th Cir. 2010) (alteration in original) (quoting
COHEN ’S H ANDBOOK OF FEDERAL INDIAN LAW § 4.06[1][b][i] (5th ed. 2005)).
52
Id. The Fifer Group attempts to reframe the issue as a matter of exhaustion
of tribal remedies. But even when courts, both federal and state, have been confronted
with situations where a tribe lacked a tribal court with jurisdiction over a self-governance
dispute, they have concluded that the dispute remained a matter of internal tribal self-
governance. See In re Sac & Fox Tribe of Mississippi in Iowa/Meskwaki Casino Litig.,
340 F.3d at 751; Lamere v. Superior Court, 31 Cal. Rptr. 3d 880, 886 (Cal. App. 2005).
53
See, e.g., U.S. Bancorp v. Ike, 171 F. Supp. 2d 1122, 1125 (D. Nev. 2001)
(“Deciding a question involving a tribal election dispute is solely a matter of tribal law,
and we do not have jurisdiction to address this question.”); Timbisha Shoshone Tribe v.
Kennedy, 687 F. Supp. 2d 1171, 1185-86 (E.D. Cal. 2009) (concluding that the plaintiffs
lacked standing in federal court because resolving their claim would require the court “to
consider tribal law as it relates to elections and enrollment in the Tribe”).
54
Against the weight of this federal precedent, the Fifer Group cites Houlton
Band of Maliseet Indians v. Boyce, a Maine Supreme Court case concerning competing
tribal councils. 688 A.2d 908 (Maine 1997). Although the Maine Supreme Court upheld
the trial court’s exercise of jurisdiction, the court’s language is cautious, reasoning that
the trial court did “not improperly invade the Band’s sovereignty” because it “declined
(continued...)
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We conclude that the weight of the precedent supports the superior court’s
conclusion that it lacked subject matter jurisdiction because determining the real party
in interest would necessitate resolving a disputed tribal election.55
3. Decisions involving issues of disputed tribal membership
Our decision is further supported by the precedent on jurisdiction over
tribal membership disputes. The Fifer Group and the Polston Group dispute the
membership claims of persons who signed the Fifer Group’s election petition and
persons who voted in the competing elections. Determining whether either group
properly complied with the election and election dispute procedures may require an
individual inquiry into whether the persons who participated were in fact tribal members,
and such an inquiry by the state court would likely be an infringement of tribal
sovereignty.
In Santa Clara Pueblo v. Martinez,56 the United States Supreme Court held
that “[a] tribe’s right to define its own membership for tribal purposes has long been
54
(...continued)
to declare the legitimacy of any members of the tribal council” or the legitimacy of the
disputed election and because it narrowly tailored its order to “address the immediate
[public order] crisis.” Id. at 909-11. The court’s exercise of jurisdiction in that case was
also supported by a federal statute that specifically subjected this particular tribe to the
“civil and criminal jurisdiction of the courts of the State” as well as the state
implementing statutes. Id. at 910 (quoting the Maine Indian Claims Settlement Act,
25 U.S.C. §§ 1721-1735 (1983 & Supp. 1996)). The current case lacks any such statute
or issue of public order.
55
The majority of the cases in which jurisdiction was found involved federal
statutory grants of jurisdiction, which the Fifer Group does not claim are present here.
56
436 U.S. 49 (1978).
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recognized as central to its existence as an independent political community”57 and
therefore federal court jurisdiction was lacking in cases necessarily implicating tribal
membership disputes unless Congress has specifically provided for jurisdiction.58 In a
more recent California decision, the California Court of Appeals concluded that the state
courts lacked jurisdiction in a case involving the disenrollment of tribal members.59 The
court did not find express Congressional authorization of state court jurisdiction and
concluded that without such authorization, subject matter jurisdiction was lacking.60 The
court noted that the tribe did not have a tribal court which meant that the tribal members
had no formal judicial remedy for their alleged injury.61 However, the court decided that
“this lack is sometimes an inevitable consequence to the individual tribal member of the
tribe’s sovereign immunity. . . . To the extent that Congress has not chosen to provide
an effective external means of enforcement for the rights of tribal members, the omission
is for Congress to reconsider if and when it chooses.”62 The court compared the
disenrollment dispute to “litigation concerning the outcome of an election” and noted
57
Id. at 72 n.32.
58
The Supreme Court held that the federal courts had no jurisdiction over
actions to enforce the Indian Civil Rights Act, with the only exception being the express
statutory authority to hear habeas claims. Santa Clara Pueblo, 436 U.S. at 60-62, 72.
The Court noted that “Congress’ authority over Indian matters is extraordinarily broad,
and the role of courts in adjusting relations between and among tribes and their members
correspondingly restrained,” id. at 72, and that “[c]reation of a federal cause of action for
the enforcement of rights . . . plainly would be at odds with the congressional goal of
protecting tribal self-government,” id. at 64.
59
Lamere v. Superior Court, 31 Cal. Rptr. 3d 880, 886 (Cal. App. 2005).
60
Id. at 882.
61
Id. at 882 n.2.
62
Id. (internal citations omitted).
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that “[i]f the critical point were the membership rights of certain voters (or rejected
voters), obviously, surely the courts could not intervene to make membership
decisions.”63 The court found that it did not have jurisdiction to interfere with the tribe’s
determination of membership because such a decision “would unavoidably have
substantial and continuing effects on the Band’s self-governance.”64
The presence of disputed issues of tribal membership in this case therefore
provides additional support for the superior court’s dismissal for lack of subject matter
jurisdiction.
4. Decisions involving the authority of an individual or group to
exercise tribal authority
The Fifer Group attempts to recharacterize the issue as one of disputed
tribal authority, arguing that this court has permitted an inquiry into the authority of tribal
officials under tribal law to represent the tribe in state court proceedings. In In re J.M.,
the case cited by the Fifer Group, we determined that the tribe’s chief lacked the
authority under the tribal constitution to unilaterally waive tribal court jurisdiction over
a child custody matter.65 The Fifer Group contends that the current case presents a
similar question.
But our examination of tribal law in J.M. was performed under the auspices
of the Indian Child Welfare Act’s jurisdictional provision 66 and an express Congressional
63
Id. at 886.
64
Id.
65
718 P.2d 150, 154 (Alaska 1986).
66
25 U.S.C. § 1911(a) (2012) provides:
An Indian tribe shall have jurisdiction exclusive as to any
State over any child custody proceeding involving an Indian
(continued...)
-26- 6890
mandate “to protect the best interests of Indian children and to promote the stability and
security of Indian tribes and families.”67 Examining tribal law to determine whether the
tribe had expressly waived jurisdiction over an Indian child pursuant to
25 U.S.C. §§ 1911-1912 is not analogous to review of Healy Lake Village’s tribal
elections. We therefore conclude that J.M. is inapposite to the current tribal election
dispute and similarly find unpersuasive the Fifer Group’s citation to Golden Hill
Paugussett Tribe of Indians v. Town of Southbury.68
5. Issues of comity and sovereign immunity
The Fifer Group also cites John v. Baker to argue that the state court should
extend comity to the Tribe’s own election dispute resolution.69 However, these
arguments beg the question whether the state court has subject matter jurisdiction to
review the existence and content of a tribal election dispute resolution process under
tribal law as well as to review the outcome of any such process when the outcome is
disputed, as it is here. The Fifer Group does not explain how issues of comity can be
addressed prior to a finding of subject matter jurisdiction.
66
(...continued)
child who resides or is domiciled within the reservation of
such tribe, except where such jurisdiction is otherwise vested
in the State by existing Federal law. Where an Indian child
is a ward of a tribal court, the Indian tribe shall retain
exclusive jurisdiction, notwithstanding the residence or
domicile of the child.
67
J.M., 718 P.2d at 152 (citing 25 U.S.C. § 1902 (1982)).
68
651 A.2d 1246 (Conn. 1995). Golden Hill did not involve a tribal election
or membership dispute but rather the division of tribal leadership authority between a
purported tribal chief and an elected tribal council. Id. at 1249.
69
982 P.2d 738, 762-64 (Alaska 1999).
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Similarly, the superior court properly did not reach the merits of any
sovereign immunity issues as it lacked subject matter jurisdiction to determine which
group actually represented the Tribe and would therefore be entitled to raise a sovereign
immunity defense.
Thus, the superior court properly dismissed this case for lack of subject
matter jurisdiction because determining the real party in interest would have required the
superior court to decide matters solely within the Tribe’s retained inherent sovereignty.
V. CONCLUSION
For the reasons set out in this opinion, we AFFIRM the superior court’s
dismissal for lack of subject matter jurisdiction.
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