National Farmers Union Insurance Companies, a Utah Corporation, and Lodge Grass School District No. 27 v. Crow Tribe of Indians

In May of 1982, Leroy Sage, a minor and an enrolled member of the Crow Indian Tribe, was struck by a motorcycle while in the parking lot of Lodge Grass School District No. 27. The School District is located on land owned by the State of Montana and within the exterior boundaries of the Crow Indian Reservation. Sage and his guardian, Flora Not Afraid, filed a negligence suit against the school district in Crow Tribal Court. Tribal process was served on the chairman of the school board, but the school district failed to answer Sage’s complaint or to appear in tribal court to contest its jurisdiction. Sage ultimately obtained a default judgment against the school district. Upon receiving notice of the default judgment, the school district notified its insurer, National Farmers Union Insurance (National), of the tribal suit. Neither the school district nor National contested the default judgment in Crow Tribal Court, see Crow Tribal R.Civ. P. 17, or sought an appeal to the Crow Tribal Court of Appeals, see Crow Tribal Code § 31-1-103; Crow Tribal R.App.P. 2. Instead, National obtained a temporary restraining order from a federal district court prohibiting Sage from enforcing his *1322…

dissenting in part and concurring in the result:

I agree that we must reverse but dissent from the holding that we lack subject matter jurisdiction. Instead, I would hold that the plaintiffs stated a federal common law cause of action, but would dismiss because they failed to exhaust tribal remedies.

I.

The court holds today that, while a plaintiff may state a federal common law cause of action for tribal abuse of its regulatory jurisdiction, it may not state a cause of action for abuse of its adjudicatory jurisdiction. This distinction lacks foundation in law or policy.

We have held that “the extent to which treaties and federal case law divest [a] tribe of the power to exercise civil jurisdiction over non-Indians” presents a federal question under 28 U.S.C. § 1331 (1982). Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 591 (9th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1707 , 80 L.Ed.2d 180 (1984). Accord, Cardin v. De La Cruz, 671 F.2d 363, 365 (9th Cir.1982), cert. denied, 459 U.S. 967 , 103 S.Ct. 293 , 74 L.Ed.2d 277 (1982).

It is clear too that a plaintiff may state a federal cause of action for improper taxation by an Indian tribe. Merrion v. Jicarilla…

736 F.2d 1320 18 Ed. Law Rep. 321 NATIONAL FARMERS UNION INSURANCE COMPANIES, a Utah corporation, and Lodge Grass School District No. 27, Plaintiffs-Appellees, v. CROW TRIBE OF INDIANS, et al., Defendants-Appellants. Nos. 83-3606, 83-3645. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 6, 1983. Decided July 3, 1984. Rodney T. Hartman, Herndon, Harper & Munro, Billings, Mont., for plaintiffs-appellees. Scott McElroy, Thomas R. Acevedo, Fredericks & Pelcyger, Boulder, Colo., for Crow Tribe. Clarence T. Belue, Hardin, Mont., for Sage and Not Afraid. Appeal from the United States District Court for the District of Montana. Before WRIGHT, ANDERSON and FLETCHER, Circuit Judges. FLETCHER, Circuit Judge: 1 In May of 1982, Leroy Sage, a minor and an enrolled member of the Crow Indian Tribe, was struck by a motorcycle while in the parking lot of Lodge Grass School District No. 27. The School District is located on land owned by the State of Montana and within the exterior boundaries of the Crow Indian Reservation. Sage and his guardian, Flora Not Afraid, filed a negligence suit against the school district in Crow Tribal Court. Tribal process was served on…