Opinion
Case No. 2:00-CV-584 "K"
October, 2000
Susan R. Schildmeyer, THE TAX LAW CENTER LLC, SOUTH JORDAN, UT; STEVEN MACARTHUR, Doctor, NATHANIEL PENN, Doctor, MICHELLE LYMAN, HELEN VALDEZ, CANDACE LAWS, PAUL KEITH, DOROTHY KEITH, LINDA CACAPARDO, SUE BURTON, AMY TERLAAK, ALISON DICKSON, CANDACE HOLIDAY, NICOLE ROBERTS, DONNA SINGER, FRED RIGGS plaintiffs.
Michael W Homer, Mr., Jesse C Trentadue, Mr., Kathleen M. Liuzzi, Thomas B. Price SUITTER AXLAND, SALT LAKE CITY, UT, SAN JUAN COUNTY, defendant.
MEMORANDUM DECISION AND ORDER
This matter is before the court on the San Juan County Defendants' (the "County Defendants") Motion to Dismiss Plaintiffs' Declaratory Judgment Claim with Prejudice Based on Sovereign Immunity, in which the San Juan Health Services District Defendants (the "Health District Defendants") have joined, and also on Plaintiffs' Cross-Motion for Summary Judgment on the same issue. A hearing on these motions was held on October 5, 2000. At the hearing, the County Defendants were represented by Jesse C. Trentadue, the Health District Defendants were represented by Carolyn Cox, and Plaintiffs were represented by Susan R. Schildmeyer. Before the hearing, the court considered carefully the memoranda relating to these motions, along with Plaintiffs' original motion for a temporary restraining order and the other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating to these motions. Now being fully advised, the court renders the following Memorandum Decision and Order.
The Health District Defendants joined in the motion to dismiss in their Memorandum in Opposition to Motion for Preliminary Injunction.
The precise posture of these motions is that they arose in connection with Plaintiffs' motion for a temporary restraining order. Part of the relief requested in that motion was for this court to enforce the Orders entered by the Navajo Tribal Court, which were entered within the past year against most of the Defendants in the instant case. At the August 22, 2000 hearing on Plaintiffs' request for a temporary restraining order, the County Defendants and Health District Defendants notified the court that they believed that this court could not enforce the Tribal Court Orders against them because, among other reasons, they were immune from suit in the Tribal Court. All of the Defendants (including Truck/Farmer's Insurance Company and R. Dennis Ickes) also argued that the Tribal Court Orders are unenforceable for a variety of other reasons, including that the Tribal Court did not have subject matter jurisdiction over them, that the Orders are not entitled to full faith and credit, and that this court should not enforce the Tribal Court Orders under principles of comity. This court then requested briefing on these legal issues and set a hearing for October 5, 2000. Plaintiffs' motion for a temporary restraining order was denied, except that the Health District was ordered to suspend their collection efforts pertaining to any named Plaintiff. In an Order dated September 29, 2000, the October 5, 2000 hearing was limited solely to the County Defendants' and Health District Defendants' argument pertaining to immunity. The other Defendants' arguments pertaining to the alleged unenforceability of the Tribal Court Orders will be addressed in the near future, as set forth at the end of this Memorandum Decision and Order.
At the hearing, Plaintiffs submitted the Affidavit of San Juan County Commissioner Mark Maryboy. The County Defendants and Health District Defendants objected based on their contention that the law firm of Suitter Axland represents Mr. Maryboy, and thus Plaintiffs's counsel should not have communicated with Mr. Maryboy directly. Plaintiffs' counsel claimed that Mr. Maryboy initiated the contact. On October 11, 2000, counsel for Plaintiffs filed the affidavit with the court, with a proper caption. In light of the court's ruling contained herein, the oral motions to strike the affidavit are moot.
The County Defendants include San Juan County; San Juan County Commissioners J. Tyron Lewis, Mark Maryboy, and Bill Redd; San Juan County Attorney Craig Halls; and San Juan County Administrator Richard Bailey. In the Complaint filed in the Tribal Court, these individual defendants were named in both their official and personal capacities, except for Mark Maryboy, who was named in his official capacity only.
The Health District Defendants include the San Juan Health Service District, Cleal Bradford, Roger Atcitty, John Lewis, John Housekeeper, Karen Adams, Patsy Shumway, Dr. James Redd, Dr. Lloyd Val Jones, Dr. Manfred Nelson, Marilee Bailey, Ora Lee Black, Gary Holliday, Lori Wallace, Carla Grimshaw, Gloria Yanito, Julie Bronson, and Laurie Schafer. In the Complaint filed in the Tribal Court, not all of the individual Health District Defendants were named. The individual Health District Defendants in the Tribal Court action-and thus the individuals to whom this Memorandum Decision and Order pertains-were Roger Atcitty, John Lewis, Karen Adams, Patsy Shumway, and Laurie Schafer. These individuals were named in both their official and personal capacities, except for Patsy Shumway, who was named in her official capacity only.
I. BACKGROUND
The issue before the court is whether the County Defendants and the Health District Defendants (sometimes collectively referred to as "Defendants") were immune from suit in the Navajo Tribal Court (the "Tribal Court"), thereby precluding this court from enforcing the Tribal Court Orders against them.
A. The Tribal Court Orders
The Tribal Court action pertained generally to the Health District's operation of the Montezuma Creek Clinic (the "Clinic"), which is located within the exterior boundaries of the Navajo Reservation. The Clinic, and the land on which it is located, is owned by the State of Utah as part of the Utah Navajo Trust Fund. The Clinic serves members of the Navajo Nation and is operated by the Health District pursuant to a contract with Indian Health Services ("IHS"). In the Tribal Court action, Defendants unsuccessfully argued that they were immune from suit. In ruling on the plaintiffs' application for a preliminary injunction, the Tribal Court found that Defendants had failed to show how a service district-a minor political subdivision-is an "arm of the state" with immunity under Alden v. Maine, 527 U.S. 706 (1999). See Findings, Opinion and Judgment at Preliminary Injunction at (unnumbered) 9, dated December 28, 1999, attached as Exhibit 5 in Defendants' Submission of Tribal Court Record. In addition, the Tribal Court found that Defendants had "failed to show how civil rights violations are given immunity when Alden v. Maine exempts those types of injuries from immunity. . . ." Id. The Tribal Court also found that Defendants had "[f]ailed to show how a minor political subdivisions [sic] [with] limited governmental authority exceeds that of the entire Navajo Nation sovereignty." Id. Based on these conclusions, among others, the Tribal Court entered a preliminary injunction on December 28, 1999, ordering Defendants to take several actions regarding the plaintiffs, such as reinstating them, paying lost income, expunging the charges against them, etc. Id. at (unnumbered) 20. In addition, the Tribal Court ordered that Defendants are prohibited from:
In their Tribal Court Complaint, the plaintiffs (who do not include all Plaintiffs in the instant case) alleged claims for (1) violation of their right to free speech, (2) violation of their right to assemble, (3) violation of their due process rights, (4) wrongful hiring, (5) defamation and tortious interference with contractual relations, (6) theft (of reputation), (7) violation of their equal protection rights, (8) intentional and negligent infliction of emotional distress, (8) breach of fiduciary duties, (9) misfeasance, and (10) malfeasance in office.
(a) Elimination of emergency medical technician services and coverage within the territorial jurisdiction of the Navajo Nation in service to the local Navajo and other Native American population for or on behalf of the Montezuma Creek Clinic;
(b) interfering with the lab services to the Montezuma Creek Clinic;
(c) interfering with the pharmaceutical services provided to the Montezuma Creek Clinic;
(d) interfering with any form of patient care, by among any other matter or things, billing IHS patients; and
(e) interfering or harassing Ms. Singer as the manager of the Montezuma Creek Clinic.Id. at (unnumbered) 21. The Tribal Court further ordered Defendants "to assist the Clinic and the local Navajo Chapters and chapter government, by any means necessary including Navajo and Ute language announcements on Navajo Nation wide radio; letter, etc. to help diabetic IHS patients to return to the clinic for treatment, including informing them that as an IHS patient, they do not have to directly pay for their health care treatment at the Montezuma Creek Clinic." Id. at (unnumbered) 22.
Additionally, on March 1, 2000, the Tribal Court signed an Order Denying Defendants' Motion to Dissolve or Modify the Preliminary Injunction Order. Although the Health District's contract with IHS to operate the Clinic had expired on December 31, 1999 and was not renewed, the Tribal Court, in the March 1, 2000 Order, restated its previous prohibitions and mandates from its December 28, 1999 Order, added further directives to Defendants, and imposed a fine of $10,000 a day for each day that the Order was not "carried out in its entirety." See Order Denying Defendants' Motion to Dissolve or Modify the Preliminary Injunction Order at 16, attached as Exhibit 12 in Defendants' Submission of Tribal Court Record. The Tribal Court also ordered that "every personal defendant and defendants['] counsel will pay $1,000 per day of the $10,000 daily fine from their own personal assets." Id.
II. DISCUSSION A. The County Defendants' Arguments
The County Defendants claim that they were immune from suit in the Tribal Court under the doctrine of sovereign immunity, and consequently they have urged the court to dismiss Plaintiffs' claim for declaratory relief pertaining to enforcement of the Tribal Court Orders. The County Defendants assert that, "as an arm of the State of Utah, San Juan County and its elected officials and employees are immune from suit in Navajo Tribal Court." The County Defendants point out that the states, in joining the Union, did not surrender any of their sovereign immunity with respect to tribal governments. They also argue that persons or entities subject to tribal governance, including tribal courts, do not enjoy the due process and other rights and protections that are given to citizens under the United States Constitution. Thus, they claim that "Congress could not by treaty or statute permit tribal governments with dominion over state governments and/or their political subdivisions because to do so would be to deprive these entities of their constitutional rights." Because the Tribal Court's dominion, if any, over Defendants does not arise under the United States Constitution or the Acts of Congress, then the only source for such jurisdiction would be the Tribe's inherent sovereignty, which, Defendants contend, does not reach the State of Utah or its political subdivisions or their officers and employees.
Accordingly, Defendants contend that the common law, as well as the Utah Governmental Immunity Act ("UGIA"), render them immune from suit in the Tribal Court. Additionally, they argue that, to the extent that governmental immunity is waived as to any political subdivision or its employees or officials, the UGIA expressly restricts lawsuits against political subdivisions and their officials and employees to district courts of the State of Utah. See Utah Code Ann. § 63-30-16(1) (Supp. 2000).
The County Defendants also argue that Craig Halls ("Mr. Halls"), as the elected County Attorney, is an officer of the state because he prosecutes public offenses on behalf of the State of Utah, represents the State of Utah in civil cases, and assists the State as required by the Utah Attorney General. See Utah Code Ann. § 17-18-1(2) (1999). Thus, they argue, Mr. Halls enjoys the sovereign immunity of the state and the Tribal Court's Orders are unenforceable against him. In addition, the County Defendants contend that the remaining County Defendants are immune because "counties as quasi municipal corporations partake under the common law of the sovereign immunity of the State, as an arm of the State" relying on Shaw v. Salt Lake County, 224 P.2d 1037 (Utah 1950). They also claim that common law immunity also exists for public officers and employees performing discretionary acts or carrying out official policy. Ross v. Schackel, 920 P.2d 1159, 1161-62. (Utah 1996).
B. The Health District Defendants' Arguments
The Health District Defendants have joined in the County Defendants' Motion to Dismiss, claiming that the Health District and its officers and employees were similarly immune from suit in the Tribal Court based on the state's retention of sovereignty and the UGIA. The Health District Defendants rely on the fact that, under the UGIA, the Health District is deemed a "governmental entity." They claim that the Health District was created in 1988 as a special service district, which, it claims, clearly falls within both the "special improvement district" and "public corporation" language of the UGIA. Further, they argue that Utah courts have held that such districts constitute governmental entities that fall within the UGIA, relying on Lyon v. Burton 5 P.3d 616, 612-23 (Utah 2000) (county fire district entitled to governmental immunity).
In addition, the Health District Defendants claim that they are immune because the UGIA provides immunity for the Health District's actions that involve the exercise of governmental functions. They point out that the UGIA specifically provides that a governmental entity is immune from suit for any injury that results from the operation of a hospital or health care facility.
The Health District Defendants also claim that the individual defendants who are employees of the Health District are entitled to immunity, unless the acts were undertaken with fraud and malice, which, they ostensibly contend, the acts were not. Finally, they claim that, even if immunity was waived, suit may only be brought in state district courts-not in tribal courts.
C. Plaintiffs' Arguments
Plaintiffs offer numerous arguments why Defendants were not immune from suit in the Tribal Court. They argue that, under Alden v. Maine, 527 U.S. 706 (1999), states have consented to be sued for constitutional and federal law violations. They also claim that the doctrine of claim preclusion precludes any rehashing of the immunity issue or the jurisdiction issue, arguing that this court should not "second guess" the Tribal Court.
Plaintiffs also argue that Defendants are not arms of the state and that the County and Health District have failed to address the Tenth Circuit's analysis of the "arm-of-the-state" doctrine. See, e.g., Sturdevant v. Paulsen, 218 F.3d 1160 (10th Cir. 2000) (setting forth and applying test to determine whether a State Board for Community Colleges and Occupational education was an arm of the state). Plaintiffs contend that the County and the District are not arms of the state "because they are not represented in this action by the Utah Attorney General's Office, their judgments are not paid by the State fisc and risk management office, [they can] sue and be sued, own and alienate land, and enter freely into contracts." Thus, Plaintiffs contend that, because the County and Health District are not arms of the state, they are not entitled to sovereign immunity.
Moreover, Plaintiffs claim that "immunity fails by the Strate analysis," referring to Strate v. A-1 Contractors, 520 U.S. 438 (1997), and contend that, under Strate, the Navajo Nation "retain[s] inherent sovereign power to exercise some form of civil jurisdiction over non-Indians on their reservations, even on fee lands." Accordingly, they argue, "the immunity argument is irrelevant."
In sum, Plaintiffs claim that "[n]o authority exists for minor political subdivisions to override the Treaty and their congressional enactments," that "[n]o statutory authority exists for this Court to circumscribe the inherent powers of the Navajo Court," and that, "because a Treaty preserves them, this District Court has an affirmative obligation to enforce them." Plaintiffs also argue that, because the Tribal Court was protecting its own authority (from the bad faith conduct toward the court), there is no immunity for this set of wrongful acts.
Even if Defendants were immune, Plaintiffs claim that Defendants waived their immunity when they filed counterclaims and participated in the Tribal Court proceedings. Plaintiffs also argue that Mr. Halls did not raise the immunity defense "with specificity," and thus he waived his immunity. Finally, they argue that, because Mr. Halls was acting outside his authority, he had no immunity.
D. Analysis
This court has jurisdiction pursuant to 28 U.S.C. § 1331 to determine whether a tribal court has exceeded the limits of its jurisdiction. Strate, 520 U.S. at 448. When reviewing tribal court decisions on jurisdictional issues, district courts should review tribal courts' findings of fact for clear error and conclusions of law de novo. Atkinson Trading Co., Inc. v. Shirley, 210 F.3d 1247, 1250-51 (10th Cir. 2000); see also Strate, 520 U.S. at 449. The immunity issue addressed by this court is a purely legal issue, which is reviewed de novo.
Typically, courts must follow a deferential exhaustion rule that gives examination of the jurisdictional question in the first instance to the tribal court system. Strate , 520 U.S. at 448-49 n. 7. Thus, a party can challenge in federal court a tribal court's assertion of jurisdiction only after that party has exhausted the remedies available in the tribal court system, unless an assertion of tribal jurisdiction is "motivated by a desire to harass or is conducted in bath faith, or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction. Id . n. 7 (quotations and citation omitted); Atkinson , 210 F.3d at 1250. In the instant case, tribal exhaustion is not at issue because Plaintiffs-not Defendants-filed suit in this court, requesting, among other things, that this court enforce the Tribal Court Orders. In fact, the Tribal Court granted leave to seek enforcement of the Orders "as appropriate in any Utah or federal court where it will be enforce[d] pursuant to principles of comity and applicable law." Special Order in Aid to Satisfaction of Preliminary Injunction at (unnumbered) 2, attached as Exhibit 9 to Defendants' Submission of Tribal Court Record.
Sovereign immunity is a common law doctrine that precludes litigation against an unconsenting government. See, e.g., Montana v. Gilham, 932 F. Supp. 1215, 1219 (D.Mont. 1996) (citing Restatement (Second) of Torts § 895B)), aff'd, 133 F.3d 1133 (9th Cir. 1997). This court is not aware of any published case that has addressed the issue of whether political subdivisions of a state are immune from suit in a tribal court. The most analogous published case involves the question of whether a state is immune from suit in tribal court. In Montana v. Gilham, 133 F.3d 1133 (9th Cir. 1997), the State of Montana brought a declaratory judgment action in federal court to determine the enforceability of a judgment entered against it in the Blackfeet Tribal Court.
The Gilham case arose out of a fatal automobile accident that occurred when a car driven by a tribal member struck a state highway sign. Montana asserted immunity as a defense, but the tribal court entered judgment in favor of the plaintiff, and the Tribal Court of Appeals affirmed. The district court determined that Montana was immune from suit in tribal court. See 932 F. Supp. 1215, 1224 (D.Mont. 1996). The Ninth Circuit affirmed, stating that "tribal courts historically did not possess and have not retained sovereign powers over States" and that [t]he power to subject other sovereigns to suit in tribal court was simply not a part of the tribe's inherent sovereignty." 133 F.3d at 1137-38. The Ninth Circuit noted that "[c]ourts will find that a State has waived its Eleventh Amendment immunity only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction." Id. at 1139 (internal quotations omitted). Because the language of Montana's Constitution did not meet that standard, the Gilham court found that Montana had not waived its immunity from suit in federal court, and that "[f]or similar reasons, Montana has not waived its immunity from suit in tribal court. Indeed, given the standard to find a waiver, the only reasonable construction of the [Montana Constitution] is that Montana has consented to suit only in its own state courts." Id.
In the instant case, this court agrees with the reasoning of the Ninth Circuit in Gilham that tribal courts historically did not possess and therefore have not retained sovereign powers over states. Therefore, absent a state's express waiver of immunity, a state cannot be sued in tribal court. In addition, as explained below, this court finds that the same reasoning applies to a state's political subdivisions. Consequently, political subdivisions of the State of Utah, as defined by Utah law, are immune from suit in tribal courts because the State of Utah has not waived the common law immunity of its political subdivisions from suit in tribal courts.
The United States Supreme Court has made clear that "[t]he Constitution never would have been ratified if the States and their courts were to be stripped of their sovereign authority except as expressly provided by the Constitution itself." Alden v. Maine, 527 U.S. 706, 727 (1999) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239 n. 2 (1985)). The Supreme Court has repeatedly emphasized that point. For example, in Monaco v. Mississippi, 292 U.S. 313 (1933), the Court stated:
"It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is not enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention it will remain with the States. . . ."Id. at 324 (quoting The Federalist No. 81, p. 487).
The Court has also explained that "sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself." Alden v. Maine, 527 U.S. 706, 728 (1999). Thus, because "the Eleventh Amendment confirmed rather than established sovereign immunity as a constitutional principle, it follows that that immunity's scope is demarcated not by the text of the Amendment alone but by fundamental postulates implicit in the constitutional design." Id. at 728-29. In other words, the Eleventh Amendment stands "not so much for what it says, but for the presupposition . . . which it confirms." Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991).
The Eleventh Amendment provides: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." U.S. Const. Amend. XI.
The Constitution's structure and history, and the interpretations of the Supreme Court, make clear that "the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments." Alden, 527 U.S. at 713. Accordingly, there is a "presumption that no anomalous and unheard-of proceedings or suits were intended to be raised up by the Constitution-anomalous and unheard of when the constitution was adopted." Alden, 527 U.S. at 727 (quotations and citations omitted). Therefore, the Court has "looked to the history and experience, and the established order of things, rather than adhering to the mere letter of the Eleventh Amendment in determining the scope of the States' constitutional immunity from suit." Id.
States have impliedly consented to suit in the "plan of the convention." See Blatchford, 501 U.S. at 781. Under the "plan of convention" theory, states are deemed to have impliedly waived some of their sovereignty when they ratified the Constitution. See Monaco, 292 U.S. at 322-23. The theory recognizes that, in order for the constitutional system to function, a relationship of reciprocal rights and responsibilities was necessarily imposed upon the states when they joined the Union. The states ceded some aspects of their sovereign immunity to the federal government, but they did not relinquish their sovereign immunity as against entities other than the United States and sister states. See Blatchford, 501 U.S. at 781. As a result, a state's implicit waiver of sovereign immunity as to suits by the United States or "sister states" is predicated upon the "mutuality of concession" inherent in the formation of the Union. Id.; see also Alden, 527 U.S. at 749 ("the immunity of one sovereign in the courts of another has often depended in part on comity or agreement.")
In addition, states have consented to some suits pursuant to subsequent constitutional Amendments, such as the Fourteenth Amendment. For example, in adopting the Fourteenth Amendment, the people required the states to surrender a portion of the sovereignty that had been preserved to them by the original Constitution, so that Congress may authorize private suits against nonconsenting states pursuant to its section 5 enforcement power. See Alden, 527 U.S. at 756.
However, the Supreme Court determined in Blatchford v. Native Village of Noatak that "there is no such mutuality with either foreign sovereigns or Indian Tribes." 501 U.S. at 782. The Court recognized that "[w]hat makes the States' surrender of immunity from suit by sister States plausible is the mutuality of that concession." Id. The Blatchford Court further explained that Indian tribes enjoy immunity against suits by States, as it would be absurd to suggest that the tribes surrendered immunity in a convention to which they were not even parties." Id. But, "if the convention could not surrender the tribes' immunity for the benefit of the States, we do not believe that it surrendered the States' immunity for the benefit of the tribes." Id.
Although the Blatchford Court was addressing a different question than that presented to this court, it stands to reason that, if states cannot be sued by Indian tribes in a state's own courts, then tribal members certainly cannot sue a state in tribal court. This is particularly true when tribal courts do not recognize the Constitutional protections that are guaranteed to citizens and entities of the United States. Consistent with Supreme Court precedent and the Ninth Circuit's analysis in Gilham, this court agrees that a state, unless it has consented to such a suit, cannot be sued in tribal court. While the State of Utah surrendered some of its common law immunity as a member of the United States-based upon a mutuality of concession-there is no indication whatsoever that the State of Utah ever waived its common law immunity to suit in tribal courts.
The question in the instant case, then, is whether Defendants possess the same immunity as the State of Utah. In Gilham, the court looked to Montana's Constitution and state law to determine whether it had waived immunity from suit in tribal court. See 133 F.3d at 1139. This court also finds it appropriate to look to Utah state law to determine whether Defendants enjoy the same immunity as the State of Utah and also whether the State of Utah has waived the immunity of Defendants from suit in tribal court.
Utah law is clear that political subdivisions enjoy the same immunity possessed by the State of Utah. See Utah Code Ann. § 60-30-2, -3. Political subdivisions are defined as "any county, city, town, school district, . . . special improvement or taxing district, or other governmental subdivision, or public corporation." Id. § 63-30-2(7). Governmental entities, which are defined as "the state and its political subdivisions as defined by this chapter," id. § 63- 30-2(3), are, unless otherwise provided in the UGIA, "immune from suit for any injury which results from a governmental function, governmentally-owned hospital, nursing home, or other governmental health care facility. . . ." Id. § 63-30-3(1).
A "governmental function" means "any act, failure to act, operation, function, or undertaking of a governmental entity whether or not the act, failure to act, operation, function, or undertaking is characterized as governmental, proprietary, a core governmental function, unique to government, undertaken in a dual capacity, essential to or not essential to a government or governmental function, or could be performed by private enterprise or private persons." Utah Code Ann. § 63-30-2(4)(a).
A state may expressly waive its sovereign immunity through legislative enactments that intentionally relinquish the state's immunity. See Edelman v. Jordan, 415 U.S. 651, 673 (1974). The State of Utah has expressly waived its sovereign immunity-and also the immunity of its political subdivisions-regarding certain claims, such as contractual obligations, actions involving property, and certain negligence actions, to name a few. See Utah Code Ann. §§ 63-30-5, -6, -10. Accordingly, Utah has consented to be sued in its own courts for such claims. Id. § 63-30-16.
However, a state's waiver of immunity in its own courts is not a waiver of its Eleventh Amendment immunity in federal court. Edelman, 415 U.S. at 677 n. 19 ("Whether [the State] permits such a suit to be brought against the State in its own courts is not determinative of whether [it] has relinquished its Eleventh Amendment immunity from suits in the federal courts."); Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 99 (1984) ("A State's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued."). Accordingly, it is axiomatic that a state's waiver of immunity in its own courts is not a waiver of its sovereign immunity in tribal courts.
In the case at bar, there is nothing in the record or in the laws of the State of Utah to suggest that Utah has waived the sovereign immunity of its political subdivisions and thus consented to their being sued in tribal court. Unless sovereign immunity is waived, it is retained.
Further supporting the conclusion that Utah's political subdivisions are immune from suit in tribal courts is the fact that there has been no mutuality of concession with Indian tribes, as there was when the states surrendered some of their immunity to the federal government. Not only are tribes generally immune from suit, absent their consent, see Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), but subordinate economic organizations of a tribe are also clothed with tribal immunity. See Dixon v. Picopa Constr. Co., 772 P.2d 1104,1108 (Ariz. 1989) ("[T]he subordinate economic organization doctrine allows Indian tribes to conduct their economic affairs through subordinate governmental agencies without fear of an unintended waiver of immunity."); White Mountain Apache Indian Tribe v. Shelley, 480 P.2d 654, 656 (Ariz. 1971) (finding that absent waiver, subordinate economic organization of Indian tribe enjoyed same immunity from suit that tribe enjoyed); Snowbird Constr. Co., Inc. v. United States, 666 F. Supp. 1437, 1441 (D.Idaho 1987) ("The attributes of tribal sovereignty generally extend to a housing authority, established by a tribal council pursuant to its powers of self-government.").
It would be nonsensical-in the absence of any mutuality of concession-to conclude that a political subdivision of a state is subject to suit in a tribal court when subordinate tribal governmental agencies are immune from suit in state courts. Moreover, it would be a ludicrous result if tribal members could sue political subdivisions in tribal court for claims for which no other citizen of the entire country could sue. For example, in the Tribal Court action filed by some of the Plaintiffs in the instant case, the plaintiffs alleged a claim for defamation. No other citizen in the entire nation could successfully allege such a claim against Defendants because the UGIA retains Defendants' immunity for such claims. See Utah Code Ann. § 63-30-10(2). There is simply no basis for finding that tribal members can sue political subdivisions of the State of Utah in tribal court when that option is not available to any other individual in the United States.
Plaintiffs' arguments, which are based largely on the Tribal Court's erroneous conclusions of law, fail to convince the court otherwise. First, Plaintiffs' reliance on Alden v. Maine, 527 U.S. 706 (1999) is misplaced. The Alden case involved a suit brought by state probation officers against the State of Maine for violations of overtime provisions of the Fair Labor Standards Act. The Court held that Congress could not subject a state to suit in a state court without its consent. Id. at 759-60. Alden would be applicable only if it pertained to Congress subjecting a state to suit in tribal court.
Plaintiffs, relying on the Tribal Court Orders, correctly argue that the Alden Court noted that "lesser entities" of states, such as municipal corporations that are not arms of the state, are not immune from suit under the Eleventh Amendment. See id. at 756. However, the issue in the instant case is not an Eleventh-Amendment issue, i.e., this court is not faced with a question of whether a political subdivision of a state can be sued in federal court or whether Congress can abrogate the immunity of such political subdivisions. Accordingly, Alden's instruction on this issue is inapplicable to this case, and Plaintiffs' claim that Defendants' failed to even conduct an "arm of the state" analysis is groundless. Alden is relevant only to the extent that it provides a comprehensive history of sovereign immunity and the presuppositions behind the Eleventh Amendment.
Plaintiffs also argue that issue preclusion bars review of the Tribal Court's conclusions and that this court cannot second-guess the Tribal Court. However, as stated above, according to the United States Supreme Court, it is entirely appropriate for this court to review the Tribal Court's legal conclusions regarding whether it had jurisdiction over the Defendants.
Plaintiffs' argument that Strate v. A-1 Contractors, 520 U.S. 438 (1997) compels the conclusion that "immunity" is irrelevant is also erroneous. The Court in Strate provided an analysis of circumstances in which a tribal court can exercise subject matter jurisdiction in a civil case over the activities of non-Indians on non-Indian land within a reservation. See id. at 439-41. Quite obviously, the Strate Court did not determine that its subject-matter-jurisdiction analysis would apply even to parties that were immune from suit.
In addition, Plaintiffs claim that "[n]o authority exists for minor political subdivisions to override the Treaty [presumably of 1868] and their congressional enactments." However, Plaintiffs have not provided any authority for the proposition that any treaty or congressional enactment abrogates a state's or its political subdivision's immunity. Plaintiffs also mistakenly claim that, because the Tribal Court was protecting its own authority (from the bad faith conduct toward the court), there is no immunity for this set of wrongful acts. There is simply no authority for such a proposition.
Even if Defendants were immune, Plaintiffs claim, that immunity was waived by filing a counterclaim in the Tribal Court. However, the Tenth Circuit has made clear that when a defendant continued to assert its immunity, the filing of a counterclaim did not destroy that immunity. See Mescalero Apache Tribe v. New Mexico, 131 F.3d 1379 (10th Cir. 1997). In this case, the filing of a counterclaim similarly did not destroy immunity.
Regarding the individual County Defendants and Health District Defendants in the Tribal Court action, this court finds that they were also immune. The UGIA provides that:
An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee may be held personally liable for acts or omissions occurring during the performance of the employee's duties, within the scope of employment, or under color of authority, unless it is established that the employee acted or failed to act due to fraud or malice.
Utah Code Ann. § 63-30-4(4). In this case, neither of the governmental entities can be liable, and thus, the individuals cannot be liable in their official capacities. Furthermore, because there is no finding of fraud or malice in the Tribal Court's Orders, the individuals cannot be liable in their individual capacities.
Plaintiffs argue that Mr. Halls waived his immunity defense by failing to raise it in the Tribal Court. The court finds no merit in this argument because there is clearly an immunity defense raised in Defendants' Answer in the Tribal Court.
Plaintiffs claim that "Mr. Hall[s] was not acting within his authority," but offer no support. Aside from Mr. Halls, Plaintiffs did not specifically address arguments related to the individual defendants, in either their official or individual capacities.
III. OTHER ISSUES IN THIS CASE
Pursuant to the court's instructions at the August 22, 2000 hearing on Plaintiffs' motion for a temporary restraining order, Defendant Truck Insurance Company has filed a "Brief Regarding Subject Matter Jurisdiction, Full Faith and Credit, Comity, and Exhaustion," which will be treated as a motion to dismiss Plaintiffs' declaratory judgment claim against Truck. Defendant R. Dennis Ickes has also filed a memorandum on the same issues, which will also be treated as a Motion to Dismiss Plaintiffs' declaratory judgment claim against him. Plaintiffs, on October 26, 2000, filed a "Memorandum of Facts and Law in Support of Plaintiffs' Summary Judgment Motion for Declaratory Judgment and Writ of Mandamus Orders and Rebuttal to the Defendants Counterclaims," which is presumably in response to Truck's and Ickes' briefs. The parties are hereby notified that a hearing will be held on these three motions on November 17, 2000 at 10:00 a.m. The hearing is scheduled for 90 minutes. Truck and Ickes may-but are not required to-file reply memoranda supporting their motions to dismiss and opposing Plaintiffs' summary judgment motion no later than November 10, 2000.In addition, Plaintiffs recently filed a motion to stay the preliminary injunction proceedings, except for the portion pertaining to enforcement of the Tribal Court Orders. Plaintiffs also requested an expedited hearing. All Defendants, including Truck and Ickes, if they choose to respond, should do so no later than November 10, 2000. Plaintiffs may then file a reply brief no later than November 15, 2000. This motion will be addressed at the November 17, 2000 hearing.
Finally, the Defendants have informed the court that there are various other legal issues regarding why this court cannot grant the relief requested in Plaintiffs' preliminary injunction motion, which issues should be addressed prior to holding an evidentiary hearing on that motion. Depending on the result of Plaintiffs' motion to stay proceedings on the preliminary injunction motion, a briefing schedule regarding all other legal issues pertaining to the preliminary injunction motion will be set at the November 17, 2000 hearing.
IV. CONCLUSION
For the foregoing reasons and good cause appearing, it is hereby ORDERED
that the County Defendants' Motion to Dismiss is GRANTED, and Plaintiffs' claim for declaratory judgment pertaining to enforcement of the Tribal Court Orders against the County Defendants is DISMISSED; the Health District's Motion to Dismiss is GRANTED, and Plaintiffs' claim for declaratory judgment pertaining to enforcement of the Tribal Court Orders against the Health District Defendants is DISMISSED; and Plaintiffs' Cross-Motion for Summary Judgment is DENIED. Plaintiffs' motion for a preliminary injunction is DENIED to the extent that it requests enforcement of the Tribal Court Orders against Defendants.
Plaintiffs' Application for a Temporary Restraining Order has been converted into a motion for a preliminary injunction.
However, because Plaintiffs have sought injunctive relief regarding the Health District's billing practices (a claim separate from their request to enforce the Tribal Court Orders), the Health District remains enjoined from pursuing collection efforts against any named Plaintiff-as set forth in the Order dated September 5, 2000-until the court resolves this specific issue, either on motions or after an evidentiary hearing.
A hearing on the arguments of Defendants Truck and Ickes, pertaining to the enforceability of the Tribal Court Orders against them, is set for November 17, 2000 at 10:00 a.m., at which time, Plaintiffs' motion to stay the preliminary injunction proceedings will also be addressed, after briefing as set forth herein.