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Winter 2010 Performance Test

PT-B: Rettick v. Floyd Industries

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PT-B: Rettick v. Floyd Industries

Answer

INTRODUCTION

Defendant Rettick moves to dismiss or stay Plaintiff Floyd’s federal court suit to dismiss Rettick’s tribal court suit. Rettick bases his motion on an assertion that the tribal court has jurisdiction and that Floyd must exhaust tribal court remedies prior to its federal court action.

Plaintiff Floyd opposes Rettick’s motion to stay or dismiss the federal suit because the tribal court lacks jurisdiction over Rettick’s suit and Floyd is not required to exhaust tribal remedies when the tribal court clearly lacks jurisdiction.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Floyd Industries, LLC, in the person of owner Susan Floyd, sold the Taraconic tribe handguns for use by the tribe’s police force. Rettick, Taraconic’s police chief, injured his hand while using one of the handguns.

Rettick filed suit against Floyd Industries and Susan Floyd individually in tribal court for the tort of products liability. Floyd filed suit in federal district court for a permanent injunction of the Rettick’s tribal suit, based on federal question jurisdiction under 28 USC Sec. 1331. The federal question is whether the tribal court has jurisdiction over Rettick’s products liability claim.

Rettick has moved to stay or dismiss Floyd’s federal court suit, arguing that Floyd’s suit fails to state a claim upon which relief can be granted and for failure of Floyd to exhaust tribal court remedies.

Floyd opposes Rettick’s motion, as follows:
Floyd’s suit does state a claim upon which relief can be granted because the tribal court lacks jurisdiction on the following grounds:

1. Tribal court jurisdiction cannot be grounded on tribal membership when Floyd Industries is not a tribal member and Susan Floyd is not a member of the same tribe as Plaintiff, the Taraconic tribe.
2. Tribal court jurisdiction cannot be grounded on a consensual relationship between the parties because Rettick’s cause of action is a tort, not a contract.
3. Tribal court jurisdiction cannot be grounded on a threat to the health and welfare of the tribe because it involves a hand injury to one of the tribe’s 50-member police force.
4. Floyd is not required to exhaust tribal court remedies when the tribal court clearly lacks jurisdiction. 

ARGUMENT

1. Because the tribal court lacks jurisdiction over non-tribe members, and the subject of the suit does not fall within either exception Plaintiff Floyd’s suit does state a claim for federal court relief to decide whether the tribal court has jurisdiction.

Under Federal Rule of Civil Procedure 12(b)(6), a federal court may dismiss an action if the plaintiff fails to state a claim upon which relief can be granted.” Conversely, when plaintiff does state a claim upon which relief can be granted, dismissal is improper. Here, Plaintiff Floyd does state a claim upon which relief can be granted because the federal court has jurisdiction to decide tribal court authority.

The seminal case on tribal jurisdiction is Montana. Rettick claims the Montana rule is that tribal courts have jurisdiction over tribe members for actions arising on tribal land. However, Rettick misstates the Montana rule. Under Montana, a tribal court has jurisdiction over suits between tribe members. But where the parties are not both tribe members, the tribal court has jurisdiction only over actions arising on tribal land in two circumstances: where the cause of action is based on a contract between the parties or where the subject matter threatens the political integrity, economic security or health and welfare of the tribe.

Here, both parties are not members of the Taraconic tribe. The cause of action did arise on tribal land, but it is not an action on the contract nor is tribal court jurisdiction necessary to maintain tribal authority.

1. Because Floyd Industries is not a member of any Indian tribe and Susan Floyd is not a member of the same tribe as Rettick, the tribal court lacks jurisdiction based on tribal membership of all parties.

Rettick claims that the tribal court has authority over his suit because all parties are tribe members. However, Rettick’s claim misstates the facts. Rettick named Susan Floyd personally and Floyd Industries, LLC. Floyd Industries is a Columbia corporation and is not a member of any tribe. Susan Floyd is a member of a different tribe from Rettick, so Rettick’s reliance on the law that the tribal court has jurisdiction over members of its tribe is inapposite here.

Rettick claims that “nowhere in Montana” does the court state that it does not have jurisdiction over non-tribe members whether or not the injuries occurring on tribal land. In fact, what Montana says is, “As a general proposition, the inherent sovereign powers of a tribe do not extend to activities of nonmembers.”

The court goes on to circumscribe the activities of nonmembers over which the tribal court has jurisdiction: “A tribe may regulate…the activities of nonmembers who enter into consensual relationships with the tribe or its members. A tribe may also retain …civil authority over the conduct of nonmembers…when that conduct threatens the political integrity, the economic security, or the health and welfare of the tribe.”

Since Floyd is a nonmember, the only basis for tribal authority would be one of the two exceptions just quoted above.

1. Because Rettick is suing for product liability, a tort, the tribal court lacks jurisdiction based on a consensual relationship with tribe members.

The Court in Montana carved out two exceptions granting tribal court authority: where the suit involves a contract between litigants and where the subject of the suit is essential to maintaining tribal political integrity, economic security or heath and welfare.

In Smith, the court clarified the Montana court rule: tribal courts do not have jurisdiction over non-tribe members even if the cause of action arose on tribal land, unless one of the two exceptions in Montana applies. It stated: “[The] Montana court set the framework…”Albeit rebuttable by proof of one of these two exceptions (stated above), the presumption is that a tribal court does not have jurisdiction.”

In Smith, a non-tribe member college student at a tribal college caused personal injury and property damage when he crashed a college-owned truck. The court rejected a claim that the tribal court had authority because the student’s relationship with the tribe was based on a consensual relationship, since the cause of action arose in tort, not based on the contract.

The Smith court held that the exception based on consensual relationships is inapplicable because “the focus of the court’s inquiry is not so much whether Smith entered into a consensual relationship with the tribe but whether the claim against him—negligently driving a dump truck is contractual in nature. It is not. “

Here, there is indeed a contract between the tribe and Floyd for the sale of handguns to the tribe. However, the cause of action Rettick is suing on is injuries caused by a defective handgun. This is a tort claim. Therefore, the tribal court jurisdiction based on contracts between the parties does not apply. 

1. Because Rettick’s hand injury does not seriously impair tribal law enforcement, the tribal court lacks jurisdiction based on health and welfare of the tribe.

The second exception in Montana is where the suit involves a matter that threatens the political integrity, economic security or health and welfare of the tribe. Included in the tribe’s health and welfare is maintaining public safety. In Smith the court held that a dump truck accident on tribal land is hardly capable of threatening public safety other than minimally.  The Smith court reasoned that if such a minor infraction could be held to threaten public safety, then any tort claim against a nonmember would fall within Montana’s second exception and “the exception would swallow the rule.” Here, as in Smith, the suit is a simple tort action and does not fall within the public health and safety exception.

The court in Hicks also construed the second exception by emphasizing  that “only matters necessary to protect tribal self-government or to control internal relations” are excepted.  The court in Hicks considered whether tribal authority to regulate civil law enforcement service of process on the reservation is essential to tribal self-government or internal relations.  It reasoned that the state’s interest in executing service of process for law violations off reservation in no way impairs the tribe’s self-government.

Here, it is true that Rettick is the chief of the tribal police. However, Rettick’s injury is relatively minor. He only injured his hand. As police chief, his duties are more administrative than they are front line. A hand injury will not prevent him from carrying out his administrative duties as chief of police. Furthermore, the tribal police force is made up of fifty officers. The temporary disability of one of these officers is not likely to seriously impair the effectiveness of peace keeping on tribal land. Therefore, the subject of the suit does not involve necessity of the tribe’s health and safety.

II. Because the tribal court clearly lacks jurisdiction, Plaintiff Floyd is not required to exhaust tribal remedies before filing suit in federal court.

In National Farmers’ Union, the court held that principles of comity require the federal court to stay its action until the tribal court has ruled. However, under the most recent case to discuss the issue, Hicks, the court held that where the tribal court clearly lacks jurisdiction the exhaustion requirement serves no purpose other than delay and is therefore unnecessary. 

Conclusion: Plaintiff Floyd should deny defendant’s motion for dismissal since plaintiff’s suit states a claim for federal relief because it has established that the tribal court lacks jurisdiction in that (a) plaintiffs are nonmembers of the Taraconic tribe; (b) the suit involves tort and not contract.; and (c) the suit does not involve conduct that threatens the political integrity, the economic security, or the health and welfare of the tribe, but merely a tort injury to one member of the tribe’s police force. Furthermore, the court should not stay plaintiff’s suit because exhaustion is not required when the tribal court clearly lacks jurisdiction and requiring exhaustion of tribal remedies would merely serve delay to delay adjudication.

Therefore, Plaintiffs respectfully request the federal court to deny defendant’s motion for dismissal or stay.

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