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Nevada v. Hicks Reply Brief of Petitioner STATE OF NEVADA; WILLIAM MOLINI; RICH ELLINGTON; MICHAEL SPENCER; BILL FITZMORRIS, Petitioners, v. FLOYD HICKS; TRIBAL COURT IN AND FOR THE FALLON PAIUTE-SHOSHONE TRIBES; JOSEPH VAN WALRAVEN, HON., Respondents. No. 99-1994 1999 U.S. Briefs 1994 February 23, 2001 On Writ of Certiorari To The United States Court of Appeals For The Ninth Circuit. REPLY BRIEF FOR PETITIONERS FRANKIE SUE DEL PAPA, Attorney General of the State of Nevada. C. WAYNE HOWLE, (Counsel of Record), Senior Deputy Attorney General. PAUL G. TAGGART, Deputy Attorney General, 100 North Carson Street, Carson City, NV 89701-4717, (775) 684-1227. Of Counsel: JEFFREY S. SUTTON, Jones, Day, Reavis & Pogue, 1900 Huntington Center, 41 South High Street, Columbus, Ohio 43215, (614) 469-3855. Counsel for Petitioners. REPLY BRIEF FOR PETITIONERS A. Nevada's Immunity From Suit Precludes Tribal Claims Against State Officials In Tribal Court. Petitioners showed in their opening brief (Pet'r Br. 9-13) that all States, Nevada included, entered the Union with their sovereignty intact. Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991). One component of that sovereignty is that a State generally has authority to decide when and where the government and its officials will be sued save when the Constitution delegates to another sovereign the authority to abrogate those immunity rules. Alden v. Maine, 527 U.S. 706 (1999). In this instance, Nevada has granted carefully-delimited waivers of immunity for official conduct of state employees. By their terms, however, these waivers do not extend to Mr. Hicks' tribal-court claims brought under tribal law. In trying to evade these immunity requirements, Mr. Hicks has not pointed to any cognizable source of authority for preempting, abrogating or otherwise nullifying what Nevada law requires. Nor is it inherent in the Tribes' status as domestic dependent nations. Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831). To the contrary, any exercise of judicial power over state officials is inconsistent with the dependent status of Tribes, and accordingly any such power--if it ever existed--was divested by the plan of the convention. Therefore, in the absence of any showing that Nevada has either consented to suit in tribal court, or that Congress has abrogated state immunity by a clear statement and in accordance with a permissible exercise of constitutional authority, the State's immunity rules bar tribal jurisdiction over Mr. Hicks' tribal law claims. Mr. Hicks does not argue that Nevada has consented to suit in tribal court. And he does not argue that Congress has properly invoked the Indian Commerce Clause or any other [*2] source of constitutional authority to preempt Nevada's immunity rules regarding claims against the government or its officials. Instead he and the tribal respondents principally criticize the Framers' understanding of State sovereignty as well as the principle of State sovereignty itself, then weave together a claim that federal policy in this area has evolved to supersede these original understandings regarding the allocation of power among the United States, the individual States, and the Indian Tribes. See, e.g., Hicks Br. at 31-37, Brief Amici Curiae of Confederated Tribes of the Colville Reservation, et al., at 17-21; Brief Amici Curiae of the Pyramid Lake Paiute Tribe of Nevada, et al., at 10-14. Arguments of this sort, however, explain why sovereign immunity is a constitutional doctrine, supplying it with the "starch" it needs to resist momentary changes in public opinion. Cf. Denver Area Educ. Tel. Consortium, Inc. v. FCC, 518 U.S. 727, 774 (1996) (Souter, J., concurring). "State sovereign immunity, unlike foreign sovereign immunity, is a constitutional doctrine that is meant to be both immutable by Congress and resistant to trends." Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2231 n.4 (1999). Trends in federal Indian policy thus cannot affect state immunities in tribal courts, just as they cannot alter federal immunities in tribal court. Short of a permissible abrogation of state immunity, modern statutory policies regarding Indian Tribes do not inform the meaning of state immunity; only the terms of the Constitution (and the original understanding of it) may do that. Instead of advancing their position, respondents' oblique criticism of the Framers' vantage point ultimately confirms the implausibility that the Constitution envisioned tribal court actions against state officials. The founders, in point of fact, never contemplated tribal involvement in any court, much less tribal courts. See, e.g., Cherokee Nation v. Georgia, 30 U.S. 1, 18 (1831); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 196-97 [*3] (1978). See generally Documents of United States Indian Policy (Francis Paul Prucha ed., 3d ed. 2000) ("Prucha"). n1 n1 See, e.g., Prucha, at 31 (Statement to the House of Representatives submitted by Secretary of War Calhoun on December 5, 1818) (Eventually Indian Tribes will "be permitted to participate in such civil and political rights as the respective States within whose limits they are situated might safely extend to them"); id. at 47 (first annual message to Congress by President Jackson, December 1829) ("The Constitution declares that 'no new State shall be formed or erected within the jurisdiction of any other State, without the consent of its legislature. If the General government is not permitted to tolerate the erection of a confederate State within the territory of one of the members of this Union against her consent, much less could it allow a foreign and independent government to establish itself there.'") (emphasis added). Time of course has a way of making these early views, and others that are even less charitable, n2 seem hard to fathom today. And of course the State's reference to this shared understanding of the meaning of the Constitution is not meant to signal a modern-day endorsement of these views. But the [*4] answer to this evolving perspective on the proper role of Indian Tribes in modern America and to the earnest desire to establish tripartite comity among Tribes, States and the Federal Government is not to alter bedrock understandings about the meaning of the Constitution. It rather is to develop properly-exercised federal and state statutes that account for these important developments. It is the role of state and federal legislatures alike to put these modern attitudes about Indian Tribes into positive law. And in many respects, they have done just that. When it comes to these claims, however, neither the Congress nor the Nevada legislature has legislated that Indian claimants may receive superior treatment to other Nevada residents when it comes to claims against the State or its officials. n2 See, e.g., Prucha, at 22 (Letter from President Jefferson to William Henry Harrison, dated February 27, 1803) ("[tribes] will in time either incorporate with us as citizens of the United States, or remove beyond the Mississippi . . . . we presume that our strength and their weakness is now so visible that they must see we have only to shut our hand to crush them, and that all our liberalities to them proceed from motives of pure humanity only"); id. at 22 (statement of Secretary of War Calhoun to House of Representatives, dated December 4, 1818, ("Our laws and manners ought to supersede their present savage manners and customs"). Respondents and supporting amici also cite Congress' recent generous statements about tribal adjudicatory jurisdiction as support for their case. See, e.g., Brief Amici Curiae of Pyramid Lake Paiute Tribe, et al., at 11-14. Omitted, though, from the legislative statements is any indication that Congress believes tribal courts may wield their jurisdiction against state officials. One might reasonably suppose that Congress would have signaled its intent to work such a radical adjustment had it in fact intended this change. Nor, contrary to one of the respondents' claims, does the State contend that Tribes are not sovereigns. See Brief Amici Curiae of the Pyramid Lake Paiute Tribe, et al., at 10. They simply are a different kind of sovereign. Much as counties and cities are limited sovereigns under state law, so Indian Tribes are limited sovereigns under federal law. Nothing about that limited sovereign status, however, gives Indian Tribes inherent authority to sue state officials in tribal court under tribal law. Neither has Congress ever delegated such an extraordinary grant of power to them. Mr. Hicks' extended discussion of Nevada v. Hall, 440 U.S. 410 (1979), serves only to underscore the inapposite nature of Respondents' attempt to wedge tribes into the relationship that exists between States and the Federal Government, and among the States themselves. Hicks Br. at 24-30. The States came to the Union as full sovereigns. Indeed, the Union exists only by virtue of their willingness to cede voluntarily a portion of that sovereignty. See Texas v. White, 74 U.S. 700, 724-25 (1869); The Federalist No. 45, at 260 (James Madison) (Clinton Rossiter ed. 1961) ("The powers delegated by the proposed Constitution to the federal [*5] government are few and defined. Those which are to remain in the State governments are numerous and indefinite"). It was this full complement of sovereignty that permitted the majority in Hall to analogize Nevada and California to "independent and completely sovereign nations," 440 U.S. at 417, and thereby to make Chief Justice Marshall's opinion in The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812), pertinent. Indian Tribes, in contrast, were dependent sovereigns possessing no inherent authority as to the States at the time of the Constitution's framing and necessarily had no sovereignty to contribute to the federal Union. Equally unpersuasive is Hicks' effort to render the discovery doctrine of no present significance. See Hicks Br. at 31-37. While Chief Justice Marshall in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 542 (1832), contrasted the discovery doctrine's theoretical basis with the "actual state of things" in preempting the State of Georgia's effort to apply its law to persons within the Cherokee Nation's lands, it nonetheless remains indisputable--and undisputed by Hicks himself--that the doctrine served as the basis for the Court's characterization of tribes as "domestic dependent nations" in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17-18 (1831). The question whether state law is preempted, moreover, differs qualitatively from whether a Tribe possesses inherent authority as to a State. The first question turns on the scope of congressional power as delegated by the States to Congress; the second turns on whether the "domestic dependent nation" status of Tribes negates any claim to inherent authority over not only the United States but also the States, since the Federal Government's plenary power over Indian affairs derived from the States themselves. In the final analysis, respondents simply have not identified any tenable source of authority--whether in the Constitution, federal law, or inherent in their status as limited sovereigns--for ignoring (in truth, preempting) Nevada's laws [*6] regarding suits against state officials. Absent such a cognizable theory of superior power, the tribal claimants must do what all Nevada residents must do--seek relief in state or federal court. B. Respondents Cannot Bring Their Section 1983 Claim Against State Officials In Tribal Courts. Also unavailing is respondents' section 1983 claim. As Nevada showed in its opening brief (Pet'r Br. 24-29), Congress did not expressly create any such action against state officials in tribal courts, as required when it attempts to alter "the constitutional balance between the Federal Government and the States." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985). And at any rate it lacked the power to create such a claim. See Pet'r Br. 27-29. The tribal claimants offer several responses to these arguments, all unpersuasive. As an initial matter, it bears emphasis that respondents have not offered a shred of historical evidence that the Congress that passed section 1983 meant to allow such claims in tribal court against non-consenting state officials. No such evidence exists, and that is presumably why respondents suggest that congressional intent is not even relevant to the issue at hand. See Fallon Tribe Br. at 45. On this basis alone, the claim should be dismissed. Nor have respondents been willing to consider the questions the Court has asked in the past in deciding whether to extend section 1983 to new settings and new claims--specifically, the "history" and special "policy concerns" involved in suing government officials. Richardson v. McKnight, 521 U.S. 399, 404 (1997). See Pet'r Br. at 25-29. No such consideration has been offered; and none could be offered given the "anomalous and unheard-of proceedings" that respondents propose. Alden v. Maine, 527 U.S. 706, 727 (1999) (quotation omitted). The claims have no pedigree, and as the facts of this case well illustrate they are more apt to interfere with State-Tribal relations than advance them. Instead, respondents argue simply that Tribes are sovereigns and as such tribal courts by definition must be competent tribunals for section 1983 actions. See Fallon Tribe Br. at 45-46. Even if tribal courts may be competent to hear certain federal claims, however, that does not mean Congress authorized them to hear section 1983 claims. And as shown (Pet'r Br. 25), the language of the statute says not a word about tribal courts. Respondents also rely on a number of decisions holding that tribal courts may apply certain federal laws. Fallon Tribe Br. at 45-46. But the vast majority of these cases involve federal statutes designed by their terms specifically for Indian Tribes. n3 The only federal law involved in two other cases--National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985) and Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987)--is simply the tribal courts' authority initially to rule on their own jurisdiction (which itself is a federal question) over private individuals who are not members of the Tribe. That respondents feel compelled to rely on these inapt precedents merely confirms the difficulty of obtaining traction on this contention. The argument should be rejected. n3 See United States v. Plainbull, 957 F.2d 724 (9th Cir. 1992) (action for penalties against member grazing livestock on tribal land without a tribal permit); United States v. Tsosie, 92 F.3d 1037 (10th Cir. 1996) (ejectment and trespass action on behalf of a Navajo tribal member against another member); El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 486 n. 7 (1999) (by its reference to Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)). El Paso's reference pertains to civil rights claims against tribal officials in tribal court, under the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1341). C. The Expedience of Naming State Officials In Their Individual Capacity Does Not Alter These Principles. In response to all of this, the tribal claimants primarily claim that pleading rules defeat Nevada's contentions. Just as [*8] precedent allows individual-capacity actions under section 1983 against state officials in federal court, they argue that similarly-styled actions may be brought in tribal court under tribal law and section 1983. Their reliance on this point is undifferentiated, and purportedly justifies all of Mr. Hicks' claims, whether in common-law tort, federal civil rights, or tribal civil rights. That is wrong. To start with, no rule of pleading with which we are familiar allows a plaintiff to innovate a claim that the legislature did not. Here, as we have shown, no tenable evidence exists that Congress meant to create a section 1983 claim enforceable in tribal courts, which after all did not even exist when the statute was enacted. Nor, as we also have shown (Pet'r Br. 22-23), did the Tribe expressly establish a tribal-law claim against State officials. Respondents offer no answer to the latter point, and conclusory responses to the former. No less fundamentally, the nullification of state immunity rules is not a matter of pleading creativity. Just as state residents may not bring state-law actions against state officials in disregard of Nevada immunity law merely by naming them in their individual capacity, neither may tribal claimants do the same under tribal law or section 1983. The one is no less disrespectful of Nevada law than the other. Nor are these types of actions inconsequential. With a wide array of statutes and constitutional provisions to back her up, Nevada's Attorney General asserts, categorically, that vital state interests are implicated by the tribal-court actions. Having defended the state officials from the inception, she can fully attest that these types of actions threaten States' financial integrity, permit intervention in the processes of government, interfere with the allocation of scarce resources, and pose real threats to Tribal-State relations. See Alden v. Maine, 527 U.S. 706, 749-51 (1999). These state peace officers after all were sued because they investigated an off-reservation state crime, allegedly committed by a Nevada citizen located within the [*9] State's boundaries. And Nevada's Wildlife Director was sued, and kept in the litigation for ten years, without any allegation ever being brought against him. In response to the State's sovereign defense, the tribal respondents attempt to parlay federal doctrine permitting suits against individually-named officials into new, expansive tribal jurisdiction. No doubt the State accepts Ex parte Young, 209 U.S. 123 (1908), Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), Hafer v. Melo, 502 U.S. 21 (1991), among other decisions. But the extension of these decisions to tribal-court claims under tribal law and section 1983 should be flatly rejected. Not one of these cases or any other offers a coherent explanation for extending this Court's individual-capacity doctrine to claims in tribal court, as opposed to federal court. Still less is there any basis for doing so with regard to claims brought under tribal law. As we showed in the opening brief (Pet'r Br. 20-22, 27-29), these creative claims parallel an earlier effort to extend Ex Parte Young actions to claims brought under state law against States in federal court. For many of the same reasons that the Court rejected this effort to circumvent state immunity rules in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984), it should do so here. The explanation for creating these federal-court, federal-law doctrines, together with the ultra vires fictions on which they rested, simply does not translate to this setting. See id. at 105 ("Ex Parte Young was the culmination of efforts by this Court to harmonize the principles of the Eleventh Amendment with the effective supremacy of rights and powers secured elsewhere in the Constitution") (quoting Perez v. Ledesma, 401 U.S. 82, 106 (1971); Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 270 (1997) ("Application of the Young exception must reflect a proper understanding of its role in our federal system and respect for state courts instead of a reflexive reliance on an obvious fiction."). Howlett v. Rose, 496 U.S. 356 (1990), is not to the contrary. It rested at most on the constitutional integration of state and federal courts. Id. at 367. Tribal courts, in contrast, lack any constitutionally-grounded role, and the rationale of Howlett should have no force with regard to them. Indeed, the very purpose of those courts is to enforce a Tribe's inherent authority which, as this Court has reiterated regularly, derives from sources wholly independent of the federal constitutional and statutory regime that section 1983 attempts to vindicate. See, e.g., Nat'l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 851 (1985). Neither the extension of section 1983 actions to tribal courts nor the extension of personal immunity principles to tribal courts will further the important national objectives that explain the development of these extraordinary federal-court doctrines. Respondents and their amici deal with the federal structure of the Constitution and its bilateral allocation of power by denying its existence. The Fallon Tribe suggests that "traditional analysis has always relied heavily on the Constitution's recognition of three sovereigns," Fallon Tribe Br. at 32, and the United States implies the same by its reference to tribes and States as "concurrent sovereigns." n4 U.S. Br. at 1 and 18. [*11] Hicks asserts that, "by virtue of acts of Congress and rulings from this Court, tribes are now ensconced within the federalism framework." Hicks Br. at 45. But these bald assertions are mistaken, and utterly unsupported. n4 The United States misapplies the term "concurrent sovereigns" to denote Tribes and States. The term is traditionally used with reference to state and federal governments. See Petersburg Cellular P'ship v. Bd. of Supervisors of Nottoway Co., 205 F.3d 688, 700 (4th Cir. 2000) (quoting Printz v. United States, 521 U.S. 898 (1997), and citing Alden v. Maine, 527 U.S. 706 (1999), to explain that the "dual-sovereignty structure of the Constitution carefully preserves two, concurrent sovereigns over the people"); see also The Federalist No. 32, at 169 (Alexander Hamilton) (Clinton Rossiter ed. 1961) ("the necessity of a concurrent jurisdiction results from the division of sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor is not only a theoretic consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution"). Perhaps the best evidence of the novelty of these claims is the extraordinary lengths to which the United States has gone to soften their impact. Having first ignored two centuries of history, tradition and practice, to say nothing of the plain language of the relevant laws, in order to support these innovations, the Federal Government attempts (U.S. Br. 24-30) to undo the impact of this striking departure from settled practices by rewriting the removal statute. In the Federal Government's view, the new susceptibility of state officials to tribal-law and section-1983 claims in tribal courts will not amount to much because States may remove the federal claims (and pendent tribal claims) to federal court under 28 U.S.C. § 1441. The problem is, section 1441 says not a word about removal from tribal courts. It mentions only removal from "a State court." 28 U.S.C. § 1441. Rather than presenting one more hurdle for the United States to clear in developing a theory that offers something to everyone, this language suggests something else--that Congress thought general federal-law claims could not be brought in tribal court in the first instance. The Federal Government's contention fails to account for this straightforward interpretation of the removal statute and in the end should be rejected. D. State-Tribal Cooperation Will Not Be Advanced By Respondents' Claims. In urging tribal jurisdiction over state officials, Mr. Hicks relies on the surprising contention that it will foster cooperation between States and Tribes. Hicks Br. at 43; see also Fallon Tribe Br. at 11. The authorities presented, however, do no more than demonstrate the level of cooperation that occurred before the Ninth Circuit's opinion in this matter. See Nevada v. Hicks, 196 F.3d 1020 (9th Cir. 1999). Doubtless, Nevada, [*12] like many States, has encouraged cooperation between Tribes and state agencies. See, e.g., NEV. REV. STAT. §§ 277.080 to 277.180. But the Ninth Circuit's decision puts these arrangements in jeopardy; it will not further them. The existence of tribal jurisdiction here, for example, will cause great consternation for States and their employees who must perform law-enforcement activities relating to Indian affairs. Not only will these employees be forced to engage in activities that will expose them to new liabilities, but those liabilities will arise under laws and before tribunals that are not constrained by ordinary constitutional limitations and are not subject to external review. n5 For their part, Tribes will be reluctant to enter into cooperative arrangements that would voluntarily diminish the reach of their inherent powers in order to allay State concerns. State-tribal cooperation is far more likely to suffer than flourish if the Ninth Circuit's novel approach is accepted. n5 Though it is true that Nevada, for example, will indemnify its employees for judgments against them arising from actions taken in the course and scope of their duties, NEV. REV. STAT. § 41.0349, the state legislature has also decided that no award for punitive damages may be taken against the State. NEV. REV. STAT. § 41.035. Reconciliation of these disparate provisions is then left primarily to the State Board of Examiners, see Nev. Const. art. 5, § 21, to decide as a political question whether a state official may be indemnified for a punitive award. The ambiguity of the law can result in uncertainty for state employees. While this concern is tempered to some extent outside the tribal court system by the Due Process Clause of the Fourteenth Amendment and the availability of, inter alia, this Court's review (BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996)), no such assurance exists with respect to tribal court proceedings even if 25 U.S.C. § 1302(8) is construed to impose comparable limitations on tribal court judgments. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Nor is it true that "state courts have adjudicated state law claims against individually named tribal officials." Hicks Br. at [*13] 20. While several decisions are offered to support the statement, id. at n.9, they do not in fact do so. For example, the issue was left unresolved in Drumm v. Brown, No. CV960079971, 1999 Conn. Super. LEXIS 1691, at *8 (Conn. Super. Ct. 1999). And Hegner v. Dietze, 524 N.W.2d 731, 735 (Minn. App. 1994), Boisclair v. Imperial Granite Co., 51 Cal. 3d 1140 (Cal. 1990), Drumm, 1999 Conn. Super. LEXIS 1691, at *10, and White Mountain Apache Indian Tribe v. Shelley, 480 P.2d 654 (Ariz. 1971), all originated in Public Law 280 States. There, unlike here, the power of the State to supply the rule of decision is uncontested, i.e., presently, the issue is not merely immunity from suit but from the very authority of the Tribe to impose its inherent authority on Nevada or its representatives charged with carrying out the State's sovereign responsibilities. Pub. L. 83-280, 67 Stat. 588, as amended, 18 U.S.C. § 1162, 28 U.S.C. § 1360. Likewise, Santa Clara Pueblo, and Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343 (2d Cir. 2000), involved federal, not state, jurisdiction. Lastly, the Court's general statement in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 514 (1991) ("we have never held that individual agents or officers of a tribe are not liable for damages in actions brought by the State") supplies no standard to explain when and why such actions may be maintained. Respondents' contention also ignores an equal, if not greater, number of decisions that have dealt differently with tribal officials' immunity. See Pet'r Br. at 12. See also Turner v. Martire, 99 Cal. Rptr. 2d 587 (Cal. Ct. App. 2000) (tribal officials lose protection of tribal immunity if their actions were taken for their personal benefit). E. The Plight Of William Molini Illustrates The Risks of Adopting the Ninth Circuit's Approach To Deciding Issues of Qualified Immunity. As petitioners also demonstrated in their opening brief (Pet'r Br. 29-33), the Ninth Circuit erred in concluding that [*14] petitioners' sovereign immunity defense is not jurisdictional, see Nevada v. Hicks, 196 F.3d 1020, 1029, n. 12 (9th Cir. 1999), and in failing to ensure that it was addressed at the outset. See P. R. Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993); Kiowa Tribe of Okla. v. Mfg. Technologies, Inc., 523 U.S. 751, 754 (1998). Petitioners also showed that if they cannot invoke the State's own immunity for their protection, they ought to be entitled to a form of qualified immunity that is jurisdictional in effect and that must be assessed by a federal court if not promptly decided in tribal court. The prudential considerations that normally require exhaustion in tribal court, see National Farmers Union Ins. Cos., 471 U.S. 845 (1985), simply do not apply to immunity defenses raised by state officials in tribal courts. The experience of one of the individual petitioners in this case fairly illustrates the reasons for this rule. William Molini was the Director of the Nevada Department of Wildlife in 1991 when Mr. Hicks sued him in tribal court. Mr. Hicks did not allege then, and has not alleged since, that Molini did anything wrong. "Petitioner Mr. Molini," it has now been acknowledged, "does not appear from the record to have acted personally within Indian country." Brief Amici Curiae for the Thlopthlocco Tribal Town, et al., at 2, n.2. While neither of the respondents specifically addresses Mr. Molini's continued presence in this matter, they now appear to concede that he should not have been named. See Hicks Br. at 3, n.2 ("On or about January 18, 2001, Mr. Hicks filed motions in both cases before the tribal court . . . to drop William Molini as a defendant"). This eleventh-hour development merely reflects the fact that naming Molini as a party was unfounded from the outset. Yet neither the federal nor tribal courts addressed the injustice, even though it was plainly presented. Only the risk of a negative outcome in this Court apparently has led respondents to do what should have been done at the outset. Remarkably, despite the ten years it has taken to extract Mr. Molini voluntarily from the case, respondents still want more time in tribal court to address the question of qualified immunity. Brief of the Fallon Tribe at 42; see also Hicks Br. at 46-49; Brief Amicus Curiae of the Pyramid Lake Paiute Tribe at 27-28. In their view, the "factual context [involved in the qualified immunity defense] was never developed in the Tribal Court." Brief of the Fallon Tribe at 42. But what "factual context" could there still be to develop? No such issues needed to be developed for Mr. Molini, as all apparently now agree. His defense was a challenge to the face of the complaint, not to the underlying facts. The same is true for the other individual petitioners. Their challenge arose from the four corners of the complaint, and their entitlement to relief was self-evident. To its credit, the United States recognizes as much: Hicks is seeking to hold petitioners liable in tort simply for executing, in accordance with their terms, facially valid search warrants that were issued by the state court and approved by the tribal court. . . . Such conduct would fall well within the scope of the applicable immunity, whatever its precise boundaries. U.S. Br. at 21; see also Brief Amici Curiae for the Thlopthlocco Tribal Town, et al., at 2 n.2. The State of Nevada has been making this precise argument for ten years now, all to no avail. The Bleak-House manner in which this case has been handled illustrates, first, why these actions should not be allowed in the first instance, and, second, why if they are allowed, qualified immunity defenses should be treated as jurisdictional in nature under Puerto Rico Aqueduct. Even today, Mr. Hicks cannot identify what clearly established federal right was violated by the officials. See Baker v. McCollan, 443 U.S. 137, 140 (1979). All that he has presented are a series of conclusory allegations. Hicks Br. at 3. F. Even If State Immunity Itself Does Not Defeat Tribal Jurisdiction, No Such Jurisdiction Exists In This Case Under Montana v. United States. As the opening brief also demonstrates (Pet'r Br. 36-44), Montana v. United States, 450 U.S. 544 (1981) creates a presumption against tribal jurisdiction over nonmembers, a presumption that should apply with special force to tribal claims against state officials. Respondents, however, attempt to counter Montana's application here by claiming that tribal courts are "courts of general jurisdiction." Hicks Br. at 18. And they attempt to justify this conclusion by invoking the Court's and Congress' isolated statements about retained tribal sovereignty, but do so in complete disregard of the limitations that have been placed on that sovereignty. See generally Pet'r Br. 16-20. Montana's two exceptions--based on consent and protection of tribal self-governance--plainly do not apply here. In executing their search warrants, the Nevada wardens were hardly "entering consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." Montana, 450 U.S. at 565. And by executing the warrants with approval of a tribal judge, and in the company of tribal officers, the state officials did not engage in conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe." Id. at 566. Rather, their actions in deference to tribal authority simply respected the integrity of the tribal government. 1. Respondents overstate the relevance of several precedents. Tribal adjudicatory jurisdiction over nonmembers is still an ill-defined proposition, even in the absence of state immunity arguments. Respondents seek in this case a form of tribal authority that the Court has never recognized before: Tribal [*17] civil adjudicatory jurisdiction over nonmember defendants. Because this case involves state officials as nonmember defendants, however, it presents an ill-suited vehicle for making this argument. Respondents and supporting amici take a broad view of this Court's decisions addressing jurisdiction over nonmembers. In truth, although the Court has suggested that nonmember defendants may be subject to a tribe's adjudicatory authority in the proper circumstances, it has never so held. Whenever the question has arisen regarding a specific defendant, tribal jurisdiction has either been found absent, or the question was not decided. See, e.g., El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999) (no jurisdiction over nonmember defendant); Strate v. A-l Contractors, 520 U.S. 438 (1997) (no jurisdiction over nonmember defendant); Duro v. Reina, 495 U.S. 676 (1990) (no criminal jurisdiction over nonmember Indian); Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987) (no decision on question of jurisdiction over nonmember defendant); National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845 (1985) (no decision on question of jurisdiction over nonmember defendant); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) (no criminal jurisdiction over non-Indian). Even in Williams v. Lee, 358 U.S. 217 (1959), the issue was the existence of state, not tribal, court jurisdiction. Nor do other decisions promoting broad tribal authority apply. A number of them involved a Tribe's jurisdiction to tax in situations in which private, consensual commercial relationships had been formed. See, e.g., Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982); Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134 (1980). The suggestion that the game wardens in this case were engaged in a commercial relationship with Mr. Hicks or his Tribe, not surprisingly, has never been advanced. 2. In respectfully seeking approval of the search warrant from the tribal court, the officers did not consent to jurisdiction. The Fallon Tribe maintains that the "Wardens recognized and consented to the authority, processes, and procedures of the Tribe as a sovereign," Fallon Tribe Br. at 24, thus justifying assertion of jurisdiction over them in Mr. Hicks' civil actions. Yet, if ever there were a case in which "no good deed goes unpunished," this would be it. The state officials of course did not believe that they were consenting to suit by their actions, and indeed no existing legal precedent would have justified that conclusion. They were simply demonstrating courtesy for the tribal processes, as the Tribe itself ultimately acknowledges: "Both sovereigns [state and tribal] showed exemplary respect and cooperation, each one for the other." Fallon Tribe Br. at 10-11. This argument also incorrectly assumes that state officials are powerless to pursue state law-enforcement objectives on a reservation--except with the Tribe's consent. A reservation is part of the State in which it lies. New York ex rel. Ray v. Martin, 326 U.S. 496 (1945); Draper v. United States, 164 U.S. 240 (1896). The State also has jurisdiction over offreservation crimes allegedly committed within the State by tribal members like Mr. Hicks. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49 (1973); Organized Village of Kake v. Egan, 369 U.S. 60, 75 (1962). When evidence of crime exists on a reservation within the boundaries of a State, the State is free to pursue the lead. A contrary rule would eliminate state law-enforcement jurisdiction on a reservation, even for the most egregious of state-law crimes, a diminution of state authority that has never been embraced by this Court. 3. Inability to sue state officials does not affect tribal sovereignty. Respondents and their amici predict, but nowhere prove, dire effects if the Court fails to find the jurisdiction that the Tribe asserts. The Fallon Tribe charges that the officials' "allegedly actionable behavior on the reservation threatens and affects the Tribe." Fallon Tribe Br. at 25. It further claims that the State's argument against jurisdiction "implies second rate status and bias and incompetence of tribal institutions." Brief of Fallon Tribe at 11. Also: "Both the political integrity and health and welfare of the Tribe are directly affected in this case since an injury to a resident tribal member directly implicates the Tribe's important governmental interest in providing a forum to allow tribal members to seek redress." Brief Amici Curiae of Pyramid Lake Paiute Tribe, et al., at 23. And "the power to adjudicate civil disputes arising on a sovereign's territory, whether involving citizens or non-citizens, is essential to the success of the Self-determination policy and a necessary attribute of sovereignty for Indian tribes as well as other governments." Brief Amici Curiae of the Confederated Tribes of the Colville Reservation, et al., at 21. None of these Respondents and their amici, however, meaningfully explains why it is necessary for Tribes to have jurisdiction over state officials. The treatment accorded federal officials in state courts illustrates that no harm results from the inability of one sovereign's courts to call to account the officials of another sovereign. The Federal Officer Protection Removal Statute, 28 U.S.C. § 1442(a), for example, removes claims against federal officials filed in state courts, including civil rights claims. Richards v. Harper, 864 F.2d 85 (9th Cir. 1988). Yet no one contends that state sovereignty is impaired because state courts are deprived of hearing civil cases against federal officials. No more would tribal sovereignty be impaired if claims against state officials were not subject to tribal adjudicatory jurisdiction. The State no more than the Federal Government maintains that its officials are absolutely immune. And like the Federal Government, U.S. Br. at 29 n.22, States are entitled to enforce their immunity rules when their public officials are sued in tribal court. In both settings, of course, errant officers whose actions harm any citizen may be called to account. Yet the remedy lies in federal courts or state courts, not tribal courts. n6 n6 Relying on Nev. Rev. Stat. § 41.430, Mr. Hicks claims that the State relinquished all civil jurisdiction on reservations. See Hicks Br. at 9, 26 n.13, and 45 n.33. The conclusion is mistaken. Section one of the statute is merely Nevada's assumption of additional jurisdiction permitted by Pub. Law 280 (67 Stat. 588), and section four is the relinquishment of such additional jurisdiction when Public Law 280 jurisdiction is retroceded. NEV. REV. STAT. §§ 41.430 (1) and (4). The result following retrocession is that state jurisdiction exists in Indian Country to the same extent it exists in any non-Public Law 280 state. See 25 U.S.C. § 1323(a); see generally American Indian Law Deskbook at 162 (2d ed. 1998). And Snooks v. Ninth Judicial District Court, 919 P.2d 1064 (Nev. 1996), also cited by Hicks for the proposition that Nevada courts have conceded away all civil jurisdiction in Indian Country, Hicks Br. at 26 n.13, is merely the adoption of the rule of Williams v. Lee, 358 U.S. 217 (1959), disavowing state jurisdiction in actions filed by non-members against tribal members. CONCLUSION Petitioners agree that Indian Tribes hold a unique place in the Nation, and as such are entitled to the utmost respect and fair treatment. But that does not mean that the Constitution authorizes Tribes to alter, preempt or abrogate State immunity rules regarding the conduct of their public officials. Respondents have not presented any authority or argument that compels a different conclusion. The State respectfully submits that the Ninth Circuit's judgment should be reversed. Respectfully submitted, Of Counsel, JEFFREY S. SUTTON, JONES, DAY, REAVIS & POGUE, 1900 Huntington Center, 41 South High Street, Columbus, Ohio, (614) 469-3855 FRANKIE SUE DEL PAPA, Attorney General of the State of Nevada C. WAYNE HOWLE, (Counsel of Record), Senior Deputy Attorney General PAUL G. TAGGART, Deputy Attorney General, 100 North Carson Street, Carson City, Nevada 89701-4717, (775) 684-1227 Counsel for Petitioners February 2001 |
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