in the united states district court great falls … · 11. on march 24, 2003, citizens attempted to...

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Joe J. McKay

Attorney-at-Law

P.O. Box 1803

Browning, Montana 59417

Telephone/Telefax: (406) 338-7262

E-Mail: [email protected]

Attorney for the Defendant

Terrance Wellman

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

_____________________________________________________________

CITIZENS SAVINGS BANK & )

TRUST COMPANY,

)

Plaintiff, CASE NO. CV-09-72-GF-SEH

)

v.

) DEFENDANT'S MEMORANDUM

TERRENCE WELLMAN, a/k/a, IN SUPPORT OF HIS ALTERNATIVE

TERRY WELLMAN, d/b/a, ) MOTION TO DISMISS OR FOR

WAR BONNET INN, SUMMARY JUDGMENT

)

Defendant.

__________________________________________________________________

COMES NOW the Defendant, Terrance Wellman a/k/a Terry Wellman, by

and through counsel, and respectfully submits his memorandum in support of his

Alternative To Dismiss For Lack of Jurisdiction, for Failure to Exhaust Tribal

Remedies or for Summary Judgment, as follows:

In the action now before the Court, Plaintiff seeks alternative, contradictory

Case 4:09-cv-00072-SEH Document 15 Filed 05/14/10 of 28

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relief. First the Plaintiff seeks recognition and enforcement of a judgment of the

Blackfeet Tribal Court. Or, alternatively, a declaration from this Court that the

Blackfeet Tribal Court had no jurisdiction over the underlying claim or the power

to issue the judgment, in the first instance (relying on Plains Commerce Bank v.

Long Family Land and Cattle Co., 128 S.Ct. 2709 (2008)). Apparently assuming

the Court finds no tribal court jurisdiction, then the Plaintiff further seeks to have

this court declare its right to the underlying real property. As a consequence of the

outcome of either of its' motions, the Plaintiff seeks to have the Court order that

the United States Marshall's service conduct a sale of the property pursuant to

unspecified process.

As hereinafter set forth, the Court should find that the Blackfeet Tribal Court

did have exclusive jurisdiction over the underlying claim, but deny recognition

and enforcement of the tribal court judgment.

STATEMENT OF UNDISPUTED FACTS

As the Defendant has opined throughout this entire proceeding, this case

commenced as a “garden variety” foreclosure action in the Blackfeet Tribal Court,

and has since served to highlight (and in some instances force the correction of)

fundamental weaknesses in the approach of the Blackfeet Tribal Court to the

administration of justice, or lack thereof.

1. In 1967, the Blackfeet Indian Tribe adopted the Blackfeet Law & Order


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Code of 1967, by which it formally established the Tribal Court system. See

Generally, Defendant's Exhibit A, Old Person Affidavit.

2. From time to time since 1967, the Blackfeet Tribe has adopted

amendments to the Blackfeet Law & Order Code, including the adoption of a

commercial code, and ordinances governing foreclosure of mortgages. Id.

3. As an initial provision of the law, the Blackfeet Tribal Law & Order Code

of 1967 as amended, addresses the appointment of judges to the Tribal Court. The

applicable section of Blackfeet Law & Order Code of 1967 as amended reads in

pertinent part:

Section 2. Appointment of Judges.

The court shall consist of one or more judges, one of

whom shall be designated as the Chief Judge, and the

others as Associate Judges. Each Judge shall be appointed

by the Tribal Business Council and Law and Order

Committee with the approval of the Commissioner

of Indian Affairs.

Blackfeet Law and Order Code of 1967 as amended, Chapter 1,Sec. 2. (Emphasis

added). These requirements were in effect at all times relevant to this action.

4. Chapter 9 of the Blackfeet Law & Order Code of 1967 sets out the civil

procedure for tribal court cases. Rule 32 of Chapter 9, deals with summary

judgment.

5. The Blackfeet Tribe also has a specific ordinance on the Foreclosure of

Mortgages setting forth various procedural requirements, including among others


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that there be 120 days notice prior to foreclosure sale.

6. On March 9, 2000, the Plaintiff herein, Citizens Savings Bank & Trust

Company (Citizens) filed its complaint against the Defendant, Terrance (Terry)

Wellman (“Wellman”) seeking foreclosure on a mortgage on a property known as

the “WARBONNET LODGE”, in Browning, on the Blackfeet Indian Reservation.

7. Wellman is an enrolled member of the Blackfeet Indian Tribe an resident

of the Blackfeet Indian Reservation. The subject property is held in fee by

Wellman.

8. On or about December 31, 2001, the Blackfeet Tribal Court issued a

JUDGMENT OF FORECLOSURE in favor of Citizens and against Wellman.

Plaintiff ’s Exhibit No. 19. The judgment was issued by a person who had not been

appointed as a judge to the Blackfeet Tribal Court in accordance with the

provisions of Chapter 1, Section 2 of the Blackfeet Law & Order Code of 1967 as

amended.

The tribal court judgment was issued as a result of a Motion for Summary

Judgment by Citizens. However, no hearing was held as required by Rule 32 of

Chapter 9 of the Blackfeet Law & Order Code of 1967 as amended.

Additionally, the judgment ignored the requirements of Blackfeet tribal law

regarding mortgage foreclosure, including a provision which purported to abdicate

tribal requirements for Montana state law requirements. None of the attempted


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foreclosure sales since have complied with the Blackfeet Tribe‟s foreclosure law.

9. On February 25, 2002, Citizens filed a Petition in the Blackfeet Tribal

Court for judicial sale of the property. That Petition was not immediately acted

upon.

10. On March 13, 2002, upon learning of the fact that the ostensible

presiding tribal judge had never been legally appointed to serve as a judge

according to the requirements of Blackfeet Tribal law, Wellman brought a

challenge to the judgment on that and other grounds. Plaintiff’s Exhibit No. 23.

On March 25, 2002, without notice to Wellman or his attorney,

representatives of the Blackfeet Tribal Court apparently went to the Blackfeet

Tribal Business Council and had a Tribal Resolution enacted appointing the person

who issued the foreclosure judgment as a Blackfeet Tribal Court judge and

purportedly approving all that person‟s prior actions as a judge without regard to

prior or pending challenges to those actions. See Defendant’s Exhibit B & C.

A formal contract was signed between the Tribe and the William Joseph

Moran on April 15, 2002. See Defendant’s Exhibit F. However, that Resolution

and Contract were not immediately forwarded to the Bureau of Indian Affairs (as

agent for the Commissioner of Indian Affairs) for approval as required by

Blackfeet Tribal law as contained in Chapter 1, Sec. 2 of the Blackfeet Law &

Order Code of 1967 as amended. Defendant's Exhibits G, H, I & J.


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Additionally, Moran‟s initial appointment and contract were for a period of

only six (6) months, meaning that the contract and appointment expired on

September 15, 2002. However, Moran continued to act a tribal court judge

notwithstanding the expiration of his appointment and contract until February 3,

2003, when the appointment and contract were purportedly renewed for one year,

retroactive to September 30, 2002. Defendant's Exhibit C.

Subsequently a different person was brought in to act as judge in the case to

hear Wellman‟s Motion to vacate all orders in the case based on the lack of legal

appointment and authority of the judge at issue. However, the person who was

brought in to hear the challenge was not themselves legally appointed to serve as a

judge according to the requirements of Chapter 1, Sec. 2 of the Blackfeet Law &

Order Code of 1967. That person was not appointed by the Blackfeet Tribal

Business Council until February 3, 2003, purporting to make the appointment

retroactive to July 23, 2002. See Defendant’s Exhibit D.

To the best of Wellman‟s knowledge, it was not until sometime between

December 2003 and November 2004, that the Blackfeet Tribal Council

appointment of the presiding judge in Wellman‟s tribal court action was submitted

to and approved by the Bureau of Indian Affairs as required by Blackfeet law. See

Defendant’s Exhibits G, H, I, & J.

Pursuant to applicable Blackfeet Tribal law, it was not until the judge


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presiding in Wellman‟s tribal court action was approved by the Bureau of Indian

Affairs that he was legally appointed and that did not occur until sometime

between December 18, 2003. Defendant‘s Exhibits G, H, I, & J.

11. On March 24, 2003, Citizens attempted to register the judgment as a

foreign judgment pursuant to Section 25-9-503 of the Montana Code Annotated,

and to have the property sold by the Glacier County Sheriff in foreclosure sale.

That procedure is not proper under established Montana law and it did not comply

with Blackfeet Tribal law.

12. From March of 2002 until the present, Wellman maintained his

challenge to the underlying judgment for which recognition is sought in this case.

By decision dated March 16, 2005 and entered on April 1, 2005, the Blackfeet

Court of Appeals refused to rule on Wellman‟s challenge to the validity of the

underlying tribal court order (for which review is sought herein). Instead the

Blackfeet Court of Appeals directed Wellman to pursue his challenge with the

Blackfeet Tribal Business Council or the Bureau of Indian Affairs.

13. On May 31, 2005, the Blackfeet Tribal Business Council acted to vacate

the sale of the property at issue and stay all further action in the case. The Tribal

Council did not overrule the underlying judgment, and it did not reverse the

judgment and somehow award a windfall to Wellman. See Defendant’s Exhibit E.

14. As the entity responsible for the legal appointment of judges to the


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Blackfeet Tribal Court and as the ultimate highest judicial authority of the

Blackfeet Tribe, the Blackfeet Tribal Business Council has the authority to

determine whether a judge of its own court was acting legally and whether the

rights of any litigant were violated.

LAW AND ARGUMENT

Because the underlying land was Indian fee land, as opposed to non-Indian

fee land, the Blackfeet Tribal Court had jurisdiction pursuant to the principles set

out in Kennerly v. District Court, 400 U.S. 423 and Williams v. Lee, 358 U.S. 217

(1959).

However, once the issue of tribal power to resolve the underlying dispute is

settled, there is no general federal court jurisdiction to simply enforce a tribal court

judgment. The Court here is being asked to enforce the tribal judgment by first

giving federal recognition to that judgment and then using the authority of Federal

marshals to carry out the enforcement action. No provision in federal law provides

for such a remedy.

This court should also dismiss this matter because the Plaintiff has failed to

exhaust its tribal remedies. Importantly, the basis for the Petition for recognition

and enforcement here is that the Blackfeet Tribal Court is not doing what the

Plaintiff wants it to do, in the time frame the Plaintiff wants it done. Such does

not constitute exhaustion of the Plaintiff's tribal remedies.


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As set forth herein, the Defendant Terrance Wellman is entitled Summary

Judgment in his favor pursuant to Rule 56(b) & (c), Fed. R. Civ. Pro., as there is no

genuine dispute as to material facts and the Defendant is entitled to judgment as a

matter of law. The underlying tribal court judgment is unenforceable on due

process and public policy grounds.

1. JURISDICTION.

While commencing this action primarily to enforce a purported foreclosure

judgment from the Blackfeet Tribal Court, the Plaintiff has also raised the

contradictory issue of whether the Blackfeet Tribal Court had initial jurisdiction

over the Plaintiff, a non-Indian entity, and the underlying fee land in order to

render the judgment. Because subject matter jurisdiction is a threshold issue, the

Defendant will address that issue first.

The Defendant acknowledges that the issue of tribal jurisdiction is a federal

question giving rise to federal court jurisdiction. National Farmers' Union Ins.

Cos. v. Crow Tribe, 471 U.S. 845, 853 (1985). However, although the Tribal

Court had jurisdiction over the underlying claim, this court should refuse to

exercise its discretion as a matter of comity to find jurisdiction in this case.

a. Blackfeet Tribal Court Jurisdiction.

Because the land at issue in this case is Indian fee land, as opposed to non-

Indian fee land, the Tribal Court had jurisdiction over the underlying foreclosure


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action.

The primary basis for the Plaintiff's request for a declaration that the

Blackfeet Tribe lacked jurisdiction over it in this instance, is the United States

Supreme Court decision in the case of Plains Commerce Bank v. Long Family

Land and Cattle Co., 128 S.Ct. 2709 (2008). In that case, the United States

Supreme Court set forth judicially created principles regarding the alienability of

fee property and the lack of tribal court jurisdiction over non-Indian fee property.

The United States Supreme Court held in Plains Commerce Bank v. Long

Family Land and Cattle Co., 128 S.Ct. 2709 (2008) that the tribal court lacked

jurisdiction to impose restraints on the transfer of non-Indian fee land within a

reservation. The lynch-pin of the Plains Court's holding was the principle that

“free alienability by the holder is a core attribute of the fee simple", Plains

Commerce Bank, 128 S.Ct at 2719.

The Plaintiff's reliance on Plains Commerce Bank is misplaced for several

reasons. First, the land at issue in this case is Indian fee land, not non-Indian fee

land. Second, the tribal court here is being asked to foreclose on the Indian fee

land, not to set aside an otherwise valid transfer of the land to a non-Indian or to

somehow impose restraints on the Plaintiff's alienation of the land once it obtains a

valid foreclosure judgment in the tribal court. And, third, neither the exclusive

exercise of Tribal jurisdiction or the right of the Tribe to prescribe commercial law


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or ensure due process for its members, impedes or imposes restraints on the free

alienability of that Indian fee land.

In Plains Commerce Bank, the land which was at issue was fee land

previously owned by Long‟s non-Indian father. That land had been acquired by

Plains Commerce Bank through a prior mortgage and foreclosure, and was

subsequently sold by the Bank to another non-Indian. At the time of the tribal

court action in that case, the land had been owned in fee by a non-Indian. That is

not the case here. In this case, , the land is Indian fee land. The jurisdictional

analysis must therefore begin with status of the land at the time the action was

commenced - which was Indian fee land.

Relying on Plains, the Plaintiff seems to make the unprecedented assertion

that even Indian fee land is beyond the jurisdiction of the Tribe. First, it is again

worth noting, that no case from the U.S. Supreme Court has ever made such a

holding. Second the cases on fee land jurisdiction from the United States

Supreme Court, finding no tribal jurisdiction, are all cases involving tribal

authority over non-Indian fee land. See generally, Plains Commerce Bank v.

Long Family Land & Cattle Co. Inc., 128 S.Ct. 2709; Brendale v. Confederated

Tribes of Yakima Nation, 492 U.S. 408 (1989); and, County of Yakima v.

Confederated Tribes and Bands of Yakima Nation, 502 U.S. 261 (1992 ). There are

no cases where such a holding, regarding tribal authority, has been applied to


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Indian fee land.

Moreover, in the absence of tribal authority in this case, jurisdiction would

have to lie with the state. Case law has held that the only aspect of state

jurisdiction which applies to Indian fee land, is the right of the state to levy ad

valorem property taxes. County of Yakima v. Confederated Tribes of Yakima

Indian Nation, 502 U.S. 251 (1992); Cass County v. Leech Lake Band of Chippewa

Indians, 524 U.S. 103 (1998). In those cases the U.S. Supreme Court has found

that Congress had made its intention to authorization state taxation of Indian fee

land "unmistakably clear". Cass County, 503 U.S. at 110, citing Yakima, 502 U.S.

258 (quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 765 (1985)). This result is

derived from the general rule that states may not tax Indian land absent cession of

jurisdiction or other federal statutes expressly permitting it. Yakima, 502 U.S. at

258 (internal citation omitted).

Taken to its logical extreme, the Plaintiff's assertion would not only extend

state jurisdiction to all Indian fee land within a reservation, even tribal fee land, it

would extend all aspects of state regulatory and adjudicatory jurisdiction to these

Indian owned lands. The result would be at least concurrent jurisdiction, and could

ultimately deprive tribe‟s of all jurisdiction over Indian fee land within a

reservation, and conversely extend exclusive state jurisdiction to such land.

Again, no case has ever made such a holding. Other than lifting the restrictions


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against alienation of the land without the approval of the Secretary of the Interior,

the only aspect of fee simple status which directly allows an exercise of state

jurisdiction is in the area of taxation.

Just as Tribally owned fee land within an Indian reservation is considered

part of the Tribe‟s “territory”, so too is individually owned tribal member Indian

fee land which is located within an Indian reservation. It is already established law

that tribal courts have exclusive jurisdiction over reservation based claims by non-

Indians against tribal members resident on their own reservation. Kennerly v.

District Court, 400 U.S. 423; Williams v. Lee, 358 U.S. 217 (1959). This principle

of federal Indian law would seem to retain its vitality in the context of Indian

owned fee land.

While the Tribal Court had exclusive jurisdiction over the underlying claim,

this Court should decline to find jurisdiction to enforce the tribal court judgment

pursuant to federal law.

b. Lack of Federal Court Jurisdiction.

Once the legitimate federal question, pursuant to 28 U.S.C. §1331, of

whether the Blackfeet Tribal Court had jurisdiction over the underlying claim is

decided, there is no federal jurisdiction to simply enforce the tribal court judgment,

as a matter of convenience for the Plaintiff. See Shantz v. White Lightning, 502

F.2d. 67 (8th Cir. 1974) . The Plaintiff ha cited 28 U.S.C. §1331 and 28 U.S. C.


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§1332 as its basis for federal court jurisdiction.. But for the question of the tribal

power over the underlying claim, neither statute supports federal jurisdiction in this

instance.

The Federal District Court lacks jurisdiction over the matters set forth in the

Petition, under 28 U.S.C.A. Sec. 1332, in that this is not an original action in the

federal courts and the federal court‟s original jurisdiction would not attach to

underlying debt collection action notwithstanding the diversity of the parties as that

diversity is limited by prior jurisdictional rules as set forth in Williams v. Lee, 358

U.S. 217 (1946), and R.J. Williams Co. v. Fort Belknap Housing Authority, 719

F.2d 979 (9th Cir. 1983) cert. denied 472 U.S. 1016 (1985).

While the federal courts have accepted jurisdiction in actions to recognize

tribal court judgments under federal comity principles, it would seem that part of

the motivation for opening the federal court door, was the perception that state

courts would not grant the same opportunity. Thus in Wilson v. Marchington, 127

F.3d 805, 806-810 (9th Cir. 1997) the court indicated that because states and

tribes are separate sovereigns, they have no ability to enforce their judgments in

each other‟s forums. Id. However, as the Montana Supreme Court has noted,

while tribal court judgments may not be entitled to full faith and credit under state

law, principles of comity require that the tribal court judgment be treated the same

as that of a foreign nation. Day v. Montana Dept. of Social and Rehabilitative


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Services, 272 Mont 170, 900 P.2d 296 (1995); Wippert v. Blackfeet Tribe, 201

Mont. 299, 654 P.2d 512 (1982). Importantly, Federal Courts in this circuit have

adopted essentially the same principles in deciding whether to recognize and

enforce a tribal judgment as the Montana state courts. CF. Wilson v. Marchington,

127 F.3d 805, 810-811 (9th Cir. 1997) and Wippert v. Blackfeet Tribe, 201 Mont.

299, 654 P.2d 512 (1982).

When coupled with the drain on federal resources, it would seem that the

better exercise of the court‟s discretion would be to deny jurisdiction in this

instance. Foreclosure actions and public sales occur on the Blackfeet Reservation

on a routine basis. That this judgment is not being immediately enforced simply

underscores the problems with its validity.

Additionally, if the federal courts are going to be open to this type of pure

enforcement action. Where does that end? Will the court be open to the use of the

U.S. Marshals Service to enforce judgments arising out of child support orders, or

dissolution actions. Evictions, repossessions and a host of other enforcement

requirements could soon overwhelm the limited resources of the Marshals office.

And, if that occurs, what effect will the Federal Court's interference have on

the Tribe‟s own judicial system. It would seem that the role of the Federal court

could quickly swallow the tribe‟s authority. The type of enforcement action

sought here would seem to be an unwarranted interference in Tribal self-


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government. See Williams v. Lee, 358 U.S. 217 (1959), and an unnecessary

infringement on Tribal sovereignty. See Santa Clara Pueblo v. Martinez, 436 U.S.

49 (1978).

2. FAILURE TO EXHAUST TRIBAL REMEDIES.

Pursuant to the doctrine set forth in National Farmers Union Insurance

Companies v. Crow Tribe, 471 U.S. 845, 857 (1985) and Iowa Mutual Insurance

Company v. LaPlante, 480 U.S. 9, 15-16 (1987), the Court should dismiss the

Petition for failure to exhaust tribal remedies.

The Plaintiff acknowledges that the matter is before the Blackfeet Tribal

Court. The sole reason for the Plaintiff's Petition before this Court is that the

Plaintiff is unhappy with the tribal court because that court won't do what the

Plaintiff wants in the time the Plaintiff has sought. The problem with the

Plaintiff's position is that it has failed to set out how it tried to follow tribal

procedural law regarding its purported foreclosure judgment.

If the Plaintiff's foreclosure judgment is void for reasons related to the

authority of the person who issued it, that is the end of the Plaintiff's dispute.

However, assuming arguendo that the judgment is valid, the Plaintiff has not

attempted to comply with Blackfeet Tribal Commercial law and has failed to state

a legitimate basis for not proceeding in the tribal court. The Plaintiff has also

acknowledged by its own pleadings that it has, in effect, not taken any steps to seek


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redress before the Tribal Council or to move the Tribal Court for final order to

proceed with a sale.

Here again, if mere dissatisfaction with the tribal court's timing or process is

going to be a basis for federal jurisdiction, then there will be a whole new category

of federal cases. Since the tribal remedies have not been exhausted, the Court

should dismiss the Petition and refuse to exercise its discretion to find jurisdiction.

3. SUMMARY JUDGMENT.

Because there are no genuine disputes as to the facts material to the issue of

recognition of the Blackfeet Tribal Court judgment under federal comity

principles, the Defendant is entitled to judgment in his favor as a matter of law, and

the court should deny the Plaintiff‟s Petition for recognition thereof.

Pursuant to Rule 56(b), Fed. R. Civ. Pro., “[a] party against whom a claim,

counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at

any time, move with or without supporting affidavits for a summary judgment in

the party‟s favor as to all or any part thereof.”

Rule 56(c) further provides: “ . . . . That the judgment sought shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that here is no genuine

issue as to any material fact, and that the moving party is entitled to judgment as a

matter of law." See Gorman v. Wolpoff v. Abramson, LLP, 352 F.3rd 1008 (9th


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Cir. 2009).

Applying that standard in this case results in the conclusion that the

underlying tribal court judgment is not entitled to recognition under federal comity

principles and that the Petition for Recognition and Enforcement of Tribal Court

Judgment must be denied.

Assuming for the sake of argument that federal jurisdiction does or should

lie in this case, applying accepted federal comity principles regarding Tribal Court

judgments, the judgment offered here was void as a matter of law and thus in

violation of fundamental due process principles in that it was issued by a person

who was not legally appointed as a tribal court judge and therefore in violation of

the Blackfeet Tribe‟s own law. Additionally, there was no hearing as required by

Blackfeet Tribal law, which constitutes an additional fundamental due process

violation.

Further, the fact the tribal court judgment was issued by a person who was

not legally appointed a judge at the time, would be in violation of the public policy

of the State of Montana, the forum state. This alone, provides an independent basis

for denying recognition under federal comity principles.

a. Federal Comity Principles Regarding Tribal Court Judgments.

“Comity is neither a matter of absolute obligation, on the one hand, nor of

mere courtesy and good will, upon the other.” Bird v. Glacier Elec. Coop. Inc.,


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255 F.3d 1126, 1152 (9th Cir. 2001) (citing Hilton v. Guyot, 159 U.S. 113, 163-64

(1895) (internal quotations omitted). As the Ninth Circuit has stated, recognizing

that Indian Tribes are not true “foreign sovereigns”, but rather “dependent

domestic nations”, there are six (6) general elements or principles of comity to

apply when considering whether to recognize a judgment from a tribal court.

Wilson v. Marchington, 127 F.3d 805, 810-811 (9th Cir. 1997).

Those elements include:

1) whether the tribal court had jurisdiction;

2) whether the defendant was afforded due process of law;

3) whether the judgment was obtained by fraud;

4) whether the judgment conflicts with another final judgment that is

entitled to recognition;

5) whether the judgment is inconsistent with the parties‟ contractual choice

of forum; and,

6) whether recognition of the judgment, or the cause of action upon which it

is based, is against the public policy of the United States or the forum

state in which recognition of the judgment is sought.

Wilson, Id.

In applying this analytical framework, the Ninth Circuit has already

determined that because the Blackfeet Tribal Court functions like an Anglo-Saxon


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judicial system, traditional values of due process should inform the analysis and

that fundamental fairness is the touchstone of due process considerations. Bird v.

Glacier Electric, 255 F.3d 1126, 1152.

The underlying Tribal Court judgment is not entitled to recognition as a

matter of comity on the grounds that the judgment was issued in violation of the

Defendant‟s right to due process of law, See Bird v. Glacier Elec. Coop. Inc., 255

F.3d 1126, 1152 (9th Cir. 2001); Wilson v. Marchington, 127 F.3d 805, 810-811

(9th Cir. 1997), and on the equitable grounds that recognition of the judgment, is

against the public policy of the United States or the forum state in which

recognition of the judgment is sought. Wilson v. Marchington, 127 F.3d at 810-811.

b. Material Facts To The Issue of Comity.

The facts material to the Defendant‟s Motion for Summary Judgment on the

issue of comity, are simple.

On December 31, 2001, William Moran, purporting to be a duly appointed

judge of the Blackfeet Tribal Court, issued a foreclosure judgment against the

Defendant and in favor of the Plaintiff. At the time that the judgment was issued,

Moran was in fact not legally appointed according to the requirements of Blackfeet

Tribal law as contained in Chapter 1, Sec. 2 of the Blackfeet Law and Order Code,

in that he was not appointed by the Blackfeet Tribal Business Council and had not

been approved by the Bureau of Indian Affairs. Chapter 1, Sec. 2,Blackfeet Law


21

& Order Code of 1967.

On March 13, 2002, the Defendant filed his motion challenging the

underlying judgment based on the fact that Moran was not a legally appointed

Blackfeet Tribal Court Judge, either at the time the judgment was issued or at the

time the Motion challenging the judgment was filed.

William Moran was approved by the Blackfeet Tribal Business Council as a

Blackfeet Tribal Court judge on or about March 25, 2002. Defendant’s Exhibit B,

Excerpt from Blackfeet Tribal Council meeting minutes. He signed a contract to

assume those duties on April 15, 2002. Defendant’s Exhibit I, Blackfeet Tribal

Resolution No. 114-2002, and Contract dated April 15, 2002. That contract was

not approved by the Bureau of Indian Affairs until sometime after December 18,

2003. See Defendant’s Exhibist O, P & Q (indicating that as of December 18,

2003, the tribal court judge at issue here, had not been approved by the BIA at that

time). Thus it was not until after December 18, 2003, William Moran finally met

the requirements of Blackfeet Tribal law to be a legally appointed judge of the

Blackfeet Tribal court.

c. The Defendant Is Entitled To Judgment As A Matter Of Law.

Based upon the indisputable material facts set forth above, and applying the

federal comity analysis, the Defendant is entitled to judgment as a matter of law,

and the Plaintiff‟s petition for recognition of foreign judgment denied.


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According to the law of the Blackfeet Tribe, the Blackfeet Law and Order

Code of 1967 a person must meet two requirements to be legally appointed as a

judge of the Blackfeet Tribal Court. The Blackfeet Law and Order Code reads in

pertinent part:

Section 2. Appointment of Judges.

The court shall consist of one or more judges, one of

whom shall be designated as the Chief Judge, and the

others as Associate Judges. Each Judge shall be appointed

by the Tribal Business Council and Law and Order

Committee with the approval of the Commissioner

of Indian Affairs.

Blackfeet Law and Order Code of 1967 as amended, Chapter 1, Sec. 2. (Emphasis

added).

It could not be more clear that there are two steps or requirements to be

validly appointed as a Blackfeet Tribal Judge: 1) appointment by the Blackfeet

Tribal Business Council (which would include its Law and Order Committee); and,

2) approval by the Commissioner of Indian Affairs (or his duly authorized

representative under BIA guidelines). The operative word in Sec. 2 of Chapter 1 is

“shall”, which according to definition, is a “word of command”; “used in laws,

regulations, or directives to express that which is mandatory”. See Webster's New

Collegiate Dictionary.

Thus the requirements set forth above are not discretionary; they cannot be

waived. Unless the law is changed, or unless it is determined that the quoted


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provisions of Chapter 1, Sec. 2 of the Blackfeet Law and Order Code are not the

law, no person who has not met both requirements can legally wield power and

authority as a Blackfeet Tribal Court judge.

As hereinafter set forth, the Defendant did raise the issue of the validity of

presiding judge‟s appointment and the legality of his actions, in a timely manner.

If there is any law on the Blackfeet Reservation, according to that law, that person

was not a legal judge at the time of the Defendant‟s Motion. And notwithstanding

that the Blackfeet Tribal Business Council acted to appoint that person as a

Blackfeet Tribal Court judge on March 25, 2002, and he signed a contract on April

15, 2002, that appointment was not approved by the Commissioner of Indian

Affairs until sometime after December of 2003.

The Defendant first raised the issue of the validity and legality of the

presiding Tribal judge‟s appointment and actions on March 13, 2002.

The fact of the matter is that the presiding judge did not even meet the first

requirement of Blackfeet Tribal law when the Defendant made his challenge on

March 13, 2002, in that he was not appointed by the Blackfeet Tribal Business

Council until March 25, 2002 and he did not sign a contract until April 15, 2002 .

That date, April 15, 2002 was more than a month after the Defendant filed his

Motion challenging the judge„s rulings for lack of judicial authority. And, in fact,

that person‟s appointment was not approved by the Commissioner of Indian


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Affairs (or the duly authorized representative) until sometime after December of

2003. Only at that time, according to applicable Blackfeet Tribal law, was that

person a legally appointed Blackfeet Tribal Court judge.

Those are the facts and the law. Unfortunately Blackfeet Tribal law was not

followed. The Defendant urges this Court not to reward that failure to adhere to

the rule of law here.

Generally, any action by any person not legally appointed as a judge is void

ab initio. See State v. Vickers (1998), __ Mont.__, 1998 MT. 201; and Potter v

Dist. Ct. of the 16th Judicial Dist. (1994), 266 Mont. 384, 391, 880 P.2d 1319,

1324. That is the law in the State of Montana, and that law represents the public

policy of the state.

Based on the facts as set out in the record of this matter before the Blackfeet

Tribal Court, and now before this court, that is that the Defendant made his Motion

raising the issue of the validity of the order issued by the presiding judge on March

13, 2002, and that person was not appointed by the Tribal Council until March 25,

2002 and did not sign a contract until April 15, 2002 and was not approved by the

Bureau of Indian Affairs until late 2003 or early 2004, the underlying judgment

issued by that person is void.

That the judgment was issued by a person who had no judicial authority and

is void, violates due process considerations and recognition of the judgment would


25

violate the public policy of the State of Montana which does not recognize such

judgments under its own law.

It could not seem more fundamental to due process that the presiding

decision making officer have the authority to make the required decision. In this

instance, nothing could be more basic to due process than the person who is sitting

on the bench as the Tribal Court judge be legally appointed and have proper

judicial authority. That the tribal court judge who issued the underlying decision

in this case was not legally appointed to serve as a judge is fundamental due

process violation.

It would also appear to be against the public policy of the State of Montana,

the forum state, to allow recognition of a foreign judgment which would be void

under Montana law. Since the Federal judicial nomination, selection and

appointment process is so rigorous, it would seem to be contrary to United States

public policy to allow recognition to a foreign judgment issued by a person who

had no legal authority under the law of the foreign jurisdiction.

In Wilson v. Marchington, 127 F.3d 805, 810-811 (9th Cir. 1997), the Ninth

Circuit refused to grant recognition as a matter of comity to a Blackfeet Tribal

Court tort judgment on the grounds that the tribal court lacked jurisdiction over the

underlying cause of action. Then, in Bird v. Glacier Elec. Coop. Inc., 255 F.3d

1126, 1152 (9th Cir. 2001); the Ninth Circuit again refused to grant recognition to a


26

Blackfeet Tribal Court judgment where the court determined that statements made

in closing arguments of counsel were so highly inflammatory and racially charged

as to be prejudicial to the interests of the non-Indian Defendant, that those

statements deprived the Defendant of due process of law. So in Bird, the court

imposed unwritten notions of Anglo-Saxon fundamental fairness principles to find

a denial of due process. The case at hand clearly falls along that continuum and a

similar outcome should be reached.

In this case, the Defendant has demonstrated that the Tribe and Tribal Court

failed to follow its own law on the most basic and fundamental issue of fairness,

providing a legally appointed judge. Without a legally appointed judge, there can

be no “full and fair trial before an impartial tribunal that conducts the trial upon

regular proceedings”. Wilson, Id. If due process can be defined simply as, that

process which is due in the circumstance, and if the process itself can be or defined

by written rules of law, then the failure to have a person who is appointed as

presiding judge according to the written rules of law, is clearly a due process

violation. Such is the case here.

And, if, in the State of Montana, the law is that a judgment issued by a

person without legal authority to do so, is void as a matter of law, then the tribal

court judgment at issue here would be void as a matter of law pursuant to the law

of Montana, the forum state. Consequently, recognition of that judgment as a


27

matter of comity would be contrary to the public policy of the State of Montana.

Recognition of the judgment in this case would violate the public policy of the

State of Montana, the forum state. That is exactly why the Plaintiff chose this

court for its petition, rather than the Montana State courts.

For these reasons, the Court must deny the Plaintiff‟s Petition for

recognition of foreign judgment. The judgment was rendered in violation of the

Defendant‟s due process rights, and recognition of this judgment would violate the

public policy of the State of Montana. The Defendant‟s Motion for Summary

Judgment on the issue of recognition of the tribal court judgment as a matter of

comity should therefore be granted and the Plaintiff‟s petition denied.

CONCLUSION

For the reasons set forth herein, the Plaintiff‟s Petition for recognition and

enforcement of foreign judgment should be denied and the Defendant‟s Motion for

Summary Judgment should be granted.

DATED this 14th day of May, 2010.

__/s/ Joe J. McKay__________

Joe J. McKay, Attorney-at-Law

McKay Law

Attorney for Defendant Wellman


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CERTIFICATE OF COMPLIANCE

I hereby certify that this Defendant's Brief is printed with a proportionately

spaced Times New Roman text typeface of 14 points; is double spaced; and the

word count calculated by Microsoft Word 2007, is not more than 6,171 words,

excluding the caption and certificate of compliance.

DATED this 14th day of May, 2010.

__/s/ Joe J. McKay__________

Joe J. McKay, Attorney-at-Law

McKay Law

Attorney for Defendant Wellman


in the united states district court great falls … · 11. on march 24, 2003, citizens attempted to...

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