PAUL R. HAFFEMAN JEFFRY M. FOSTER - Turtle Talk · paul r. haffeman jeffry m. foster davis, hatley,...

PAUL R. HAFFEMANJEFFRY M. FOSTERDAVIS, HATLEY, HAFFEMAN & TIGHE, P.C.The Milwaukee Station, Third Floor101 River Drive NorthP.O. Box 2103Great Falls, Montana 59403-2103Telephone: (406) [email protected]@dhhtlaw.comAttorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

::::::::::::::::::::::::::::::::::::::::::::::::::::CITY OF WOLF POINT, MAYORDEWAYNE JAGER, WOLF CAUSE NO. CV-10-72-GF-SEHPOINT POLICE COMMISSIONERS, WOLF POINTCITY COUNCIL, POLICE CHIEF BRIEF OF SUPPLEMENTAL JEFF HARADA, AND TROY AUTHORITIES IN SUPPORTMELUM, OF MOTION FOR DEFAULT

JUDGMENTPlaintiffs,

-vs-

JULIANNE MAIL, AND ALYSSA EAGLE BOY,

Defendants.::::::::::::::::::::::::::::::::::::::::::::::::::::

QUESTIONS PRESENTED

1. Whether this Court should enter declaratory judgment that the Fort

Case 4:10-cv-00072-SEH Document 13 Filed 04/29/11 of 21

mailto:[email protected]

mailto:[email protected]

Peck Tribal Court lacks civil jurisdiction over tort claims made by a tribal

members against non-Indian Montana public officials for their actions during the

performance of their official duties and the political subdivision of the State of

Montana by whom they were employed.

2. Whether this Court should grant Plaintiffs’ request for a permanent

injunction against the Defendants from prosecuting their tort claims against the

Plaintiffs in Fort Peck Tribal Court.

STATEMENT OF PARTIES IN INTEREST

1. Plaintiff City of Wolf Point is a political subdivision of the state of

Montana. Doc. 1, ¶ 4, Tribal Court Cause No. 10-7-121, Complaint, ¶ 2 (July 21,

2010) (hereinafter TC Compl.), Exhibit A, Commisssioners’ Journal (April 6,

1915).

2. Plaintiffs DeWayne Jager, Wolf Point Police Commissioners, Wolf

Point City Council, Jeff Harada, and Troy Melum are non-Indian public officials

of the City of Wolf Point. Doc. 1, ¶¶ 5-9.

STANDARD OF REVIEW

A federal district court's determination of the extent of the tribal court's

jurisdiction is subject to de novo review. FMC v. Shoshone-Bannick Tribes, 905

F.2d 1311 (9th Cir. 1990), cert. denied, 499 U.S. 943 (1991). The district court's

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factual findings on jurisdictional issues, however, are accepted unless clearly

erroneous. Arizona Public Service Co. v. Aspaas, 77 F.3d 1128, 1132 (9th Cir.

1996). Whether exhaustion of tribal court remedies is required is a question of law

reviewed de novo. Boozer v. Wilder, 381 F.3d 931, 934 (9th Cir. 2004), citing

Boxx v. Long Warrior, 265 F.3d 771, 774 (9th Cir.2001).

FACTUAL HISTORY

1. On May 21, 2010, Officer Troy Melum of the Wolf Point Police

Department and responded to a report of breaking and entering at 117 E. Dawson

Street in Wolf Point, Montana. Doc. 1, ¶ 12, TC Compl, ¶ 8, Exhibit B, Roosevelt

County Sherriff’s Report.

2. When Melum arrived he observed another officer questioning two

women later identified as the Defendants Julianne Mail and Alyssa Eagle Boy.

During the questioning and investigation of the breaking and entering report,

Defendant Mail attempted to flee the scene, resisted arrest, and was eventually

arrested by Officer Melum and turned over to Fort Peck Tribal Police. Doc. 1, ¶

13-15, Ex. B.

3. During the questioning of the Defendants and the arrest and detention

of Mail, Plaintiff Melum was acting in his official capacity as an officer of the

Wolf Point Police Department. Ex. B.

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4. The Fort Peck Tribe has entered into a cooperative agreement

providing for cross-deputization of law enforcement officers with the City of Wolf

Point, Montana, the City of Poplar, Montana, the Montana Highway Patrol, and

the Montana counties of Roosevelt and Valley. TC Compl., ¶ 4, Exhibit C, Cross

Deputization Agreement (June 23, 2003).

PROCEDURAL HISTORY

1. On June 21, 2010, Defendants Mail and Eagle Boy filed a lawsuit in

the Fort Peck Tribal Court, Cause Number 10-7-121. TC Compl.

2. Defendants allege in their tribal court complaint that Troy Melum

violated tribal law when he “brutally assaulted Plaintiff Julianne Mail...while on-

duty for the city of Wolf Point as an Animal Control Officer.” TC Compl., ¶¶ 8,10.

3. Defendants further allege the City of Wolf Point, Mayor Dwayne

Jager, Wolf Point Police Commissioners, Wolf Point City Council and Police

Chief Jeff Harada violated tribal law by knowingly allowing Melum to engage in

this conduct “under the color of law” and for engaging in “official misconduct.”

TC Compl., ¶ 11.

4. Lastly, the Defendants allege their federally protected “constitutional

rights have been violated as outlined in [sic] U.S.C. 25 Article 1302 # 2 & #7 of

the Indian Civil Rights Act of 1968[.]” TC Compl., ¶ 17.

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5. The Defendants’ complaint seeks $376,800.00 in compensatory

damages and $3,768,000.00 in punitive damages. TC Compl., p. 5, ¶¶ 3-4.

SUMMARY OF ARGUMENTS

Plaintiffs seek declaratory judgment that the Fort Peck Tribal Court lacks

subject matter jurisdiction to hear Fort Peck Tribal Court, Cause Number 10-7-

121, because it has no civil jurisdiction over Plaintiffs as state officials in

execution of their official duties and a political subdivision of Montana by whome

they were employed. Further, Plaintiffs seek a permanent injunction against the

Defendants precluding them from prosecuting Fort Peck Tribal Court, Cause

Number 10-7-121.

This Court has the authority to grant the Plaintiffs’ requested relief because

this case is ripe for decision. This Court has personal jurisdiction over the parties,

and subject matter jurisdiction under 28 U.S.C. § 1331, to enter declaratory

judgment that the Fort Peck Tribal Court lacks jurisdiction and enjoin the

Plaintiffs from prosecuting their tort claims in Fort Peck Tribal Court. In addition,

all necessary parties to this litigation have been joined under Fed. R. Civ. P. 19.

ARGUMENTS

I. THIS COURT HAS PERSONAL JURISDICTION OVER THEDEFENDANTS.

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The Court has personal jurisdiction over the Defendants as they were both

properly served under the Federal Rules of Civil Procedure.

Defendant Mail was personally served pursuant to the Federal Rules of

Civil Procedure on December 18, 2010, and therefore, was required to answer on

or before January 10, 2011. Doc. 3. Defendant Mail has not answered or otherwise

pled.

Defendant Eagle Boy was personally served on January 10, 2011, and

therefore, was required to answer on or before January 31, 2011. Doc. 4.

Defendant Eagle Boy has not answered or otherwise pled.

The due process rights of the Defendants have not been offended. Each

Defendant was served according to the Federal Rules of Civil Procedure and failed

to answer or otherwise show cause why this Court should not exercise jurisdiction.

Accordingly, both Defendants have been properly served and this Court has

personal jurisdiction over both Defendants.

II. THIS COURT HAS SUBJECT MATTER JURISDICTION.

Under federal law, a federal court may entertain a challenge to tribal court

jurisdiction after the plaintiff has exhausted its remedies in tribal court or when

one of the four exceptions to the tribal court exhaustion rule apply. Boozer v.

Wilder, 381 F.3d 931, 935 (9th Cir. 2004) An injunction against enforcement

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efforts in tribal court is a permissible (and common) form of relief a federal

district court is authorized to provide before a tribal court has addressed its ability

to entertain jurisdiction when one of these four exceptions to the tribal court

exhaustion rule applies. See Burlington N. R. Co. v. Red Wolf, 196 F.3d 1059,

1065-66 (9th Cir. 1999) (The federal district court was proper in providing

injunctive relief, when exhaustion was not required because the tribal court plainly

lacked jurisdiction.); see also, e.g., Nevada v. Hicks, 533 U.S. 353 (2001) (State

officials were not required to adhere to tribal court exhaustion requirement before

seeking declaratory relief from the federal district court.); Strate v. A-1

Contractors, 520 U.S. 438, 450 (1997) (“In sum, we do not extract from National

Farmers anything more than a prudential exhaustion rule, in deference to the

capacity of tribal courts to explain to the parties the precise basis for accepting [or

rejecting] jurisdiction.”). Since Plaintiffs in this case meet one of the four

exceptions to the tribal court exhaustion rule, this Court may grant the Plaintiffs’

request for declaratory judgment that the Fort Peck Tribal Court lacks subject

matter jurisdiction and enjoin the Defendants from prosecuting their claims in Fort

Peck Tribal Court.

The question of whether an Indian tribe has the power to compel a

non-Indian to submit to the civil jurisdiction of a tribal court is a federal question

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under 28 U.S.C. § 1331. National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S.

845, 852 (1985), see also Strate v. A-1 Contractors, 520 U.S. 438, 448, 117 S.Ct.

1404, 1411, 137 L.Ed.2d 661 (1997); Iowa Mutual Insurance Company v.

LaPlante, 480 U.S. 9, 19, 107 S.Ct. 971, 978, 94 L.Ed.2d 10 (1987). A federal

court, however, should not entertain a challenge to the jurisdiction of a tribal court

until after a petitioner has exhausted its remedies in the tribal court, unless one of

the Supreme Court’s four exceptions apply. National Farmers Union Insurance

Co., 471 U.S. at 855-57; Boozer v. Wilder, 381 F.3d 931 (9th Cir.2004) The

Supreme Court’s four exceptions to the exhaustion rule are as follows:

(1) when an assertion of tribal jurisdiction is “motivated by a desire toharass or is conducted in bad faith,”; (2) when the tribal court action is“patently violative of express jurisdictional prohibitions”; (3) when“exhaustion would be futile because of the lack of an adequateopportunity to challenge the [tribal] court's jurisdiction”; and (4) whenit is ‘plain’ that tribal court jurisdiction is lacking, so that the exhaustionrequirement ‘would serve no purpose other than delay.’”

Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 847 (9th Cir.2009),

citing Nevada v. Hicks, 533 U.S. 353 (2001). The first three exceptions are not

important to this Court’s inquiry. It is the fourth exception, applied in Nevada v.

Hicks, that eliminates the Plaintiffs’ need in this case to exhaust tribal court

remedies.

In Nevada v. Hicks, Hicks was a member of the Fallon Paiute-Shoshone

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Tribes of western Nevada and lived on the Tribes' reservation. After Nevada state

game wardens executed state-court and tribal-court search warrants to search

Hicks's home for evidence of an off-reservation crime, he filed suit in the tribal

court against, inter alias, the wardens in their individual capacities and the State of

Nevada, alleging trespass, abuse of process, and violation of constitutional rights

remediable under 42 U.S.C. § 1983. Hicks, 533 U.S. at 353.

Both the district court and the Ninth Circuit held that the wardens would

have to exhaust their claims in the Tribal Court. In reversing those courts, the

Supreme Court held the tribal court did not have jurisdiction to adjudicate tort

claims arising from state officials’ execution of their official duties, and in such

cases the exhaustion of claims in tribal court was not required before seeking

federal court relief. Id. In applying the fourth exception the Supreme Court stated:

Since it is clear, as we have discussed, that tribal courts lack jurisdictionover state officials for causes of action relating to their performance ofofficial duties, adherence to the tribal exhaustion requirement in suchcases would serve no purpose other than delay.

Hicks, 533 U.S. at 369.

The same is true in this case. The Plaintiffs are both a political subdvision of

the State of Montana and officials of that political subdivision, and the tort

complaints brought by the Defendants in tribal court are regarding performance of

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their official duties. As was the case in Hicks, under these circumstances it would

be needless to require Plaintiffs to exhaust tribal court remedies before seeking

injunctive relief from the Federal District Court, when such adherence to this rule

would serve no purpose other than delay.

Since Plaintiffs have met the fourth exception to the tribal court exhaustion

rule, this Court has the authority to declare that the Fort Peck Tribal Court lacks

subject matter jurisdiction and enjoin the Defendants from prosecuting their tort

claims against the Plaintiffs in tribal court.

III. FORT PECK TRIBAL COURT LACKS CIVIL JURISDICTIONOVER THE PLAINTIFFS.

The traditional equitable criteria for obtaining injunctive relief include: (1) a

strong likelihood of success on the merits; (2) the possibility of irreparable injury

to the plaintiff if the preliminary relief is not granted; (3) a balance of hardships

favoring the plaintiff; and (4) advancement of the public interest. See, Los Angeles

Memorial Coliseum Com'n v. National Football League, 634 F.2d 1197, 1200 (9th

Cir.1980) (citations omitted). Accordingly, a party is entitled to injunctive relief

provided it demonstrates “probable success on the merits” and a “possibility of

irreparable injury,” or if it demonstrates “a fair chance of success on the merits

(i.e., serious questions are raised)” and the “balance of hardships tips sharply in

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their favor.” Confederated Tribes & Bands of Yakama v. Baldrige, 898 F.Supp.

1477, 1483 (W.D.Wash.1995), quoting, State of Alaska v. Native Village of

Venetie, 856 F.2d 1384, 1389 (9th Cir.1988). The injunctive relief asked for by the

Plaintiffs is appropriate because they would ultimately be successful in

challenging Fort Peck Tribal Court’s jurisdiction and the balance of hardships tips

sharply in their favor.

A. Plaintiffs will ultimately be successful in challenging Fort PeckTribal Court’s jurisdiction.

Plaintiffs will ultimately be successful because the Fort Peck Tribal Court

has no civil jurisdiction over non-members and because of the doctrine of

sovereign immunity.

Indian tribes do not have civil jurisdiction over non-members, save for two

exceptions: (1) where a consensual relationship exists between the Tribe and

non-members; and (2) where jurisdiction of the Tribal Court is necessary to

preserve tribal sovereignty. Montana v. United States, 450 U.S. 544, 101 S.Ct.

1245, 67 L.Ed.2d 493 (1981). In this case, Nevada v. Hicks is dispositive with

regard to both of these exceptions. Hicks, 533 U.S. at 357-366.

The first Montana exception is inapplicable because there is no consensual

relationship between the Tribe and the Plaintiffs. In Hicks, the Supreme Court

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analyzed "consensual relationship" and determined this exception only extends to

"private consensual" arrangements.

The Court (this is an opinion, bear in mind, not a statute) obviously didnot have in mind States or state officers acting in their governmentalcapacity; it was referring to private individuals who voluntarilysubmitted themselves to tribal regulatory jurisdiction by thearrangements that they (or their employers) entered into. This isconfirmed by the fact that all four of the cases in the immediatelyfollowing citation involved private commercial actors. See ConfederatedTribes, 447 U.S., at 152, 100 S.Ct. 2069 (nonmember purchasers ofcigarettes from tribal outlet); Williams v. Lee, 358 U.S., at 217, 79 S.Ct.269 (general store on the Navajo reservation); Morris v. Hitchcock, 194U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030 (1904) (ranchers grazinglivestock and horses on Indian lands “under contracts with individualmembers of said tribes”); Buster v. Wright, 135 F. 947, 950 (C.A.81905) (challenge to the “permit tax” charged by a tribe to nonmembersfor “the privilege ... of trading within the borders”).

Hicks, 533 U.S. at 372 (emphasis supplied). The only conceivable argument to

apply the first Montana exception in this case is the existence of the cross-

deputization agreement between the Fort Peck Tribe and the City of Wolf Point.

This argument, however, is unpersuasive in light of Hicks. It is clear from the

holding in Hicks, that the Court did not have in mind Sates or State officers acting

in their governmental capacity in applying the first exception. Id. Since Plaintiffs

were acting in their governmental capacity in entering into this agreement, there is

no private consensual relationship under Hicks and Montana’s first exception is

inapplicable.

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Hicks is even more instructive on the second Montana exception regarding

whether Fort Peck Tribal Court exercising civil jurisdiction over the Plaintiffs is

necessary to preserve tribal sovereignty. The Court in Hicks found Tribal authority

to regulate state officers in executing their official duties is not essential to tribal

self-government or internal relations.

We conclude today, in accordance with these prior statements, that tribalauthority to regulate state officers in executing process related to theviolation, off reservation, of state laws is not essential to tribalself-government or internal relations-to “the right to make laws and beruled by them.” The State's interest in execution of process isconsiderable, and even when it relates to Indian-fee lands it no moreimpairs the tribe's self-government than federal enforcement of federallaw impairs state government.

Hicks, 533 U.S. at 364. Like the State of Nevada in Hicks, the Plaintiffs interest in

enforcing Montana state law is considerable and does not impair the ability of the

Fort Peck Tribe to self-govern. Therefore, the second Montana exception does not

apply and the Fort Peck Tribal Court has no jurisdiction over the Plaintiffs.

Lastly, the Plaintiff City of Wolf Point is a political subdivision of the State

of Montana and the remaining Plaintiffs are agents of the City of Wolf Point.

Absent an unequivocal waiver of sovereign immunity and consent to be sued in

tribal court, the Fort Peck Tribal Court lacks jurisdiction over the State of

Montana regarding tort claims on the reservation. State of Mont. v. Gilham, 932 F.

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Supp. 1215, 1224 (D. Mont. 1996) aff'd, 127 F.3d 897 (9th Cir. 1997) opinion

amended and superseded sub nom. State of Montana v. Gilham, 133 F.3d 1133

(9th Cir. 1998). The Plaintiffs are both a political subdivision and agents of the

State of Montana and there has been no waiver of sovereign immunity; therefore,

the Fort Peck Tribal Court lacks jurisdiction.

Since the Fort Peck Tribal Court lacks jurisdiction to hear the Defendants’

claims, the Plaintiffs will ultimately be successful and a permanent injunction is

appropriate.

B. A balance of hardships tips sharply in Plaintiffs’ favor.

If this Court does not enjoin the Defendants from continuing prosecution of

their tort claims in Fort Peck Tribal Court, the Plaintiffs will have no choice but to

defend this case on the merits. Such a defense may require years of litigation

before the Fort Peck Tribal Court enters its final decision regarding the

Defendants’ claims. At which point the Plaintiffs may be back before this Court

making the same arguments to challenge the Fort Peck Tribal Court’s civil

jurisdiction over the Plaintiffs. Such a process would be an unneeded waste of all

parties’ money and time and a waste of this Court and the tribal court’s valuable

resources.

Likewise, the Defendants would fall prey to the same hardship if they

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continue this course in the Fort Peck Tribal Court. Defendants would proceed and

may ultimately be successful. However, even if they were successful the Fort Peck

Tribal Court would not have had jurisdiction and its judgment would be wholly

unenforceable. On the other hand, Defendants would not be precluded from

bringing their case before a court of competent jurisdiction. Enjoining the

Defendants from continuing in Fort Peck Tribal Court does not preclude them

from asserting their claims in Montana State District Court or even before this

Court under 42 U.S.C. § 1983 (as their complaint seems to suggest). Thus, the

only “hardship” incurred by the Defendants, if this Court grants the Plaintiffs’

injunction, is that the Defendants will be required to refile this case in a court of

competent jurisdiction. Under the circumstances, that is no “hardship” at all.

Thus, it is clear that if the Court does not grant Plaintiffs’ requested relief,

all parties would suffer needlessly with protracted tribal court litigation that would

unnecessarily drain the resources of the Fort Peck Tribal Court and this Court.

IV. ALL NECESSARY PARTIES HAVE BEEN JOINED UNDERFED. R. CIV. P.19.

This case is ripe for decision by this Court because the Fort PeckTribal

Court is not a necessary party to this litigation. Under Federal Rule of Civil

Procedure 19, a non-party is "indispensable" to an action if (1) the non-party is

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"necessary" under Rule 19(a); (2) the non-party cannot be joined (due to sovereign

immunity, for example); and (3) the non-party's absence would mandate dismissal

according to a weighing of the factors outlined in Rule 19(b). Because the Fort

PeckTribal Court is not a necessary party, this Court need not address steps two

and three.

The Ninth Circuit applies a two-pronged analysis to determine whether a

non-party is necessary. Yellowstone County v. Pease, 96 F.3d 1169, 1172 (9th

Cir.1996); see also Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th

Cir.1990); Confederated Tribes of the Chehalis Indian Reservation v. Lujan, 928

F.2d 1496, 1500, 1501 (9th Cir.1991) (O'Scannlain, J., concurring in part and

dissenting in part) (“The relevant question for Rule 19(a) must be whether success

in the litigation can afford the plaintiffs the relief for which they have prayed.”)

First, a court must determine whether “ ‘complete relief’ is possible among those

already parties to the suit.” Id. Second, a party is necessary if a court determines

that the non-party has a “legally protected interest in the suit.” Id.

1. Complete relief is possible among those already parties to the suit.

Plaintiffs seek relief from this Court to declare the Fort Peck Tribal Court

lacks subject matter jurisdiction and enjoin Defendants Mail and Eagle Boy from

prosecuting their claims in Fort Peck Tribal Court. It is not necessary to join the

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tribal court in order for this Court to provide complete relief to the Plaintiffs under

Rule 19.

In Yellowstone County v. Pease, the Ninth Circuit concluded “it is not

necessary to join the tribal court as a party to Pease's suit for the simple reason that

tribal judges, like state judges, are expected to comply with binding

pronouncements of the federal courts.” Pease, 96 F.3d at 1172-73; citing for

example, In re Justices of Supreme Court of Puerto Rico, 695 F.2d 17, 23 (1st

Cir.1982) (citations omitted) (“it is ordinarily presumed that judges will comply

with a declaration of a statute's unconstitutionality without further compulsion”);

James v. Jones, 148 F.R.D. 196, 203 (W.D.Ky.1993) (holding that state judges

were not necessary parties to an action challenging constitutionality of state laws

relating to detention of juveniles). If this Court enters judgment finding the Fort

Peck Tribal Court lacks civil jurisdiction, the Defendants, as well as the Fort Peck

Tribal Court, will be required to recognize this Court’s judgment. Accordingly,

this Court can provide complete relief without joining the tribal court under Rule

19.

2. The Fort Peck Tribal Court does not have a legally protectedinterest in the suit.

This Court is the final arbitrator of whether the Fort Peck Tribal Court has

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civil jurisdiction over the Plaintiffs. The Plaintiffs’ challenge to the Fort Peck

Tribal Court's jurisdiction raises a federal question that is clearly within the

jurisdiction of a federal district court. FMC v. Shoshone-Bannock Tribes, 905 F.2d

1311, 1314 (9th Cir.1990) (citations omitted) (“[F]ederal courts are the final

arbiters of federal law, and the question of tribal court jurisdiction is a federal

question.”), cert. denied, 499 U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d 459 (1991);

see National Farmers Union, 471 U.S. at 852, 105 S.Ct. at 2451-52. Since the Fort

Peck Tribal Court lacks civil jurisdiction over the Plaintiffs, the Fort Peck Tribal

Court has no legally protected interest in this suit and this case is ripe for this

Court’s decision.

Tribal authority to regulate state officers in executing their official duties is

not essential to “tribal self-government or internal relations - to ‘the right to make

laws and be ruled by them.’" Hicks, 533 U.S. at 364. The only plausible legal

interest the Fort Peck Tribal Court has in this lawsuit is that it be provided an

opportunity to evaluate the factual and legal bases for the Plaintiffs’ challenge to

its jurisdiction (tribal court exhaustion rule). National Farmers Union Ins. Co.,

471 U.S. at 856. However, as discussed previously, it is not necessary under the

fourth exception to the tribal exhaustion rule for this Court to allow the Fort Peck

Tribal Court an opportunity to determine its jurisdiction when the issues before the

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tribal court involve tort claims against a political subdivision of the State of

Montana and its employees during the execution of their official duties. Hicks, 533

U.S. at 369 (when it is plain that tribal court lacks jurisdiction the exhaustion

requirement serves no purpose other than delay). The Fort Peck Tribal Court

plainly lacks jurisdiction, and as the final arbitrator of that question, this Court has

full authority provide the Plaintiffs’ requested relief irrespective of the Fort Peck

Tribal Court’s determination of its jurisdiction. Since the Fort Peck Tribal Court

has no civil jurisdiction over the Plaintiffs, the Fort Peck Tribal Court does not

have a legally protected interest under Rule 19 and the claim is ripe for this

Court’s determination.

CONCLUSION

For the reasons state above, this Court should enter its declaratory judgment

that the Fort Peck Tribal Court lacks civil jurisdiction over tort claims made by the

Defendants against the Plaintiff City of Wolf Point as a political subdivision of the

State of Montana and its employees for their actions during execution of their

official duties. Furthermore, the Court should grant a permanent injunction against

the Defendants from prosecuting their tort claims against the Plaintiffs in Fort

Peck Tribal Court.

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DATED this 29th day of April, 2011.

DAVIS, HATLEY, HAFFEMAN & TIGHE, P.C.

By /s/Jeffry M. Foster JEFFRY M. FOSTER Attorneys for Plaintiffs

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CERTIFICATE OF COMPLIANCERULE 7.1(d)(2)(E)

The undersigned certifies this brief is 4045 words excluding caption and

certificate of compliance.

DATED this 29th day of April, 2011.

DAVIS, HATLEY, HAFFEMAN & TIGHE, P.C.

By /s/Jeffry M. Foster JEFFRY M. FOSTER Attorneys for Plaintiffs

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Case 4:10-cv-00072-SEH Document 13-1 Filed 04/29/11 Page 1 of 6

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