UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, Great Falls Division

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 1 of 15 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, Great Falls Division EAGLEMAN et al, Plaintiffs, v. ROCKY BOYS CHIPPEWA-CREE TRIBAL BUSINESS COMMITTEE OR COUNCIL et al, Defendants. CIVIL ACTION NO.: 14-73-cv-0073-BMM PLAINTIFF RESPONSE BRIEF TO DEFENDANTS COMBINED MOTIONS TO DISMISS Plaintiffs, through counsel, object and respond to Defendant s combined motions to dismiss as follows: Procedural Note: Defendants Chippewa Cree Housing Authority (CCHA), Donna Hay, and Thela Billy filed a motion to dismiss through counsel Evan Thompson, and the remainder of defendants later filed a notice of concurrence in CCHA s motion through attorney Dan Belcourt. This response is to all Defendants, referenced as their combined motion, and formatted as a rebuttal to CCHA s motion. Plaintiff s Response to Motion to Dismiss Page 1 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 2 of 15 FACTUAL BACKGROUND Defendants chronology of the case appears correct, with the following exceptions or clarifications: Plaintiffs remedy against Mr. Morsette, (Morsette) the private contractor, is only a remedy for Glenn Eagleman (Glenn), for Morsette s actions in failing to remove the debris from the house explosion and place it in the landfill. He instead placed it into Glenn s house foundation. The case remains pending in tribal court. Glenn does not have the means to rebuild or replace his house at this time. Mr. Morsette has been served, but the tribal court has not set a trial schedule. Neither he nor Glenn has requested a trial schedule or dismissal. Plaintiffs would have to prove the same facts twice in the action against Mr. Morsette, Thela Billy, Susan Hay, and CCHA. Plaintiffs have left that case to be decided as to allegations related to Mr. Morsette until after all the defendants are known through these proceedings, Plaintiffs may then efficiently pursue their rights against the remaining defendants as a group. If the Business Committee, CCHA, or others were concerned about this matter, they could have opened an action for recovery and fraud against Mr. Morsette and the other involved parties, and removed the hazardous waste. Plaintiffs would consider joining if such case were filed separately. Injured Defendants could also Plaintiff s Response to Motion to Dismiss Page 2 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 3 of 15 have filed a cross claim in tribal court, but have not. Plaintiffs sent an appeal letter to the Tribal Business Committee after the Tribal Appellate Court decision primarily for the purpose of clarifying that all tribal remedies had been exhausted. Pl. s. Exhibit E. Plaintiffs received the expected response. Plaintiffs notice of exhaustion was then given, with a request for correction if there were disagreement, and Plaintiffs moved on. Id. When negotiations were discussed, if not actually opened, in late 2012, Plaintiffs counsel engaged medical reviews of their situation and claims with the intent of using those in negotiations. Resources that would have gone into earlier filing were used and set back filing in this Court. Plaintiffs also filed a collateral case against Amerind Insurance Pool for not timely paying claims where liability was clear, which further aggravated the injuries of the Plaintiffs. Eagleman v. Amerind, Case No. 2010-CV-TT-939, Chippewa-Cree Tribal Court, April 21, 2010. That case also rests in tribal court pending the outcome of these proceedings. If the underlying case against CCHA and others ultimately fails, the case against Amerind may also fail, but Plaintiffs cannot proceed before resolution here. ARGUMENT I. PLAINTIFFS ACTION IS TIMELY Plaintiff s Response to Motion to Dismiss Page 3 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 4 of 15 Plaintiffs timely filed their Complaint in Tribal Court within two years of the explosion. Defendants cite the Tribe s statute of limitations at section 4.1(1) allowing only one year to file against tribal officials. Chippewa-Cree Law and Order Code, Title II, Ch. 4 (February 4, 1987). The issue of tribal statutes of limitation is discussed extensively in the Plaintiffs briefs before the tribal court of appeals, at pages 7-9 and 4, 8 respectively. Pl. s. Exhibit O, Appel. s Brief in Support of Appeal in Tribal Appellate Court (August 25, 2009); and Pl. s Exhibit P, Appel. s Supplemental Brief in Tribal Appellate Court, (January 19, 2010). Plaintiffs continue to assert under 4.1(2) that fraud and mistake are not within the normal scope of employment for then Director Susan Hay, or employee Thela Billy, and that they are therefore not protected by tribal sovereign immunity. Likewise, Plaintiffs assert that turning people away from the tribal health clinic when they are obviously injured is not within the scope of employment of Una Ford. These are fact questions to be resolved in a trial court. And, if the entity that employed them has no immunity, then the officers and employees have none. II. PLAINTIFFS CLAIMS ARE NOT MOOT Sovereign immunity is the core issue, and it affects the statutes of limitation issues. dismissal is not appropriate until the federal questions on Sovereign immunity and due process are resolved. Sovereign immunity waiver as to sue and Plaintiff s Response to Motion to Dismiss Page 4 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 5 of 15 be sued is a federal legal question, and sovereign immunity waiver related to a contract with CCHA and other parties is a fact question to be resolved by proper discovery. National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 852-53 (1985). III. AS TO LACHES, DEFENDANTS HANDS ARE UNCLEAN. Defendants injured two Plaintiffs and left all three Plaintiffs destitute and without resources. Defendants did not respond effectively to their pleas for aid or effective medical care, and instead has frustrated them and prevented timely investigation of the case. Pl. s Exhibit A, Tribal Compl. 18-35. Defendants then put them out of Defendant s own courts and denied them any remedy for their injuries. Defendants now ask this Court to ratify their unjust acts because Plaintiff s steady prosecution of the case discomfits Defendants. Defendants grossly alleges eight years of delays by Plaintiffs without breaking that time down into delays by both parties. Defendants only alleges delays by Plaintiffs, and does not examine any basis for delay. 1 The Tribal Court granted the Motion to Dismiss on July 2, 2009, and the Appellate Court did not rule until 1 FN As an interesting aside, The tribal court took from the date of filing Plaintiffs complaint in April of 2009 until April 11, 2013 to serve summons on Michael Morsette. E-mail from Clerk of Tribal Court to Mackin, May 30, 2013. Pl.s Exhibit S. The tribal court never served Una Ford in the tribal case even though she was an employee of a tribal entity located in Box Elder. Plaintiff s Response to Motion to Dismiss Page 5 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 6 of 15 October 4, 2011. Pl. s Exhibit B and Pl. s Exhibit D. In the fall of 2012 and winter of 2013, negotiations were discussed. Pl. s Exhibit Q, E-mails from Mackin to Leann Montes, (December 3, 2012) and (February 20, 2013). Plaintiff suggested settling Glenn s claims first as they were mostly financial in nature. Plaintiffs counsel engaged medical reviews of their claims for use in negotiations. For reasons unknown to Plaintiffs, by summer of 2013 the Tribe stopped responding. Time and money that could have gone into an earlier filing were diverted and had to be restored. Here movant bears the burden of proof. Defendants do not reference any witnesses or evidence that have disappeared or become stale because of passage of time. Whether any evidence has disappeared is mere speculation. Defendants were not free to expect the matter was final given Ps care to verify exhaustion of tribal remedies and Ps refusal to move to dismiss the collateral tribal court action. Letters to Stephanie Hollar from Mackin, November 16, 2011, and April 4, 2012, Pl.s Exhibit R. If Defendants had exculpatory evidence, but no longer has it, Defendants should identify that evidence and explain its disappearance or non-availability. IV. THIS COURT HAS SUBJECT MATTER JURISDICTION This court has subject matter jurisdiction over a declaratory and injunctive Plaintiff s Response to Motion to Dismiss Page 6 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 7 of 15 complaint on a federal question such as tribal sovereign immunity. As National Farmers Union indicates, proper respect for tribal legal institutions requires that they be given a "full opportunity" to consider the issues before them and "to rectify any errors." National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 857 (1985) If the Tribal Appeals Court upholds the lower court's determination that the tribal courts have jurisdiction, petitioner may challenge that ruling in the District Court. Id at 853. A federal court may determine under 1331 whether a tribal court has exceeded the lawful limits of its jurisdiction. Id at 853. [F]ederal courts are the final arbiters of federal law, and the question of tribal court jurisdiction is a federal question. FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311 (C.A.9 (Idaho), 1990) citing National Farmers Union at 852-53. In Demontiny, the Chippewa- Cree Rocky Boys tribe accepted federal district court jurisdiction on a sovereign immunity question without questioning the authority of this court to make that decision. Demontiney v. USA, 255 F.3d 801 (9th Cir, 2001). See also Brady v. USA, 211 F.3d 499 (9th Cir, 2000). a. Tribal Court Has Exclusive Jurisdiction Over the Underlying Case. The Chippewa-Cree tribal court has exclusive jurisdiction over the underlying civil case for personal injury suffered within the exterior bounds of the reservation. The fact questions and personal injury issues should be decided by the Plaintiff s Response to Motion to Dismiss Page 7 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 8 of 15 tribe. This court has jurisdiction over questions of federal law. Supra. b. Plaintiffs Were Denied Due Process. Plaintiffs were summarily dismissed by the tribal court without any chance to prove their case, and the tribal Appellate Court affirmed. The tribal Appellate court mis-interpreted the law and upheld a denial of due process. Defendants allude to two circumstances that preclude recognition of Tribal Court judgments: When the tribal court either lacked jurisdiction or denied the losing party process of law. AT&T Corp., 295 F.3d at 903. Def. Mot. To Dismiss at page 11. Both are present here. This court has jurisdiction and the tribal court ruled very quickly for the Defendants, and without allowing the Plaintiffs a hearing on the issue. Pl. s Compl. at 34-37. The decision to recognize a foreign judgment is discretionary. Bird v. Glacier Electric Cooperative, 255 F.3d 1136, 1140 (9th Cir., 2000). A foreign court judgment may be reviewed for abuse of discretion, and if due process was violated, then the court lacks discretion to recognize that judgment. Id. Defendants cite to no rule that discovery must be filed concurrently with a complaint, or before a prospective defendant can file a Motion to Dismiss in Chippewa-Cree Tribal Court. c. Plaintiffs Exhausted All Relevant and Available Tribal Remedies. Plaintiff s Response to Motion to Dismiss Page 8 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 9 of 15 Plaintiffs exhausted all their tribal remedies as to Defendants in Tribal Court and with the Tribal Business Committee, the supreme governmental body. Defendants argue that Plaintiff s remedies would be satisfied had they proceeded against Morsette. See the discussion as to the claim against Morsette in Defendant s chronology on page 2, supra. V. TRIBAL SOVEREIGN IMMUNITY DOES NOT PREVENT SUBJECT MATTER JURISDICTION Tribal Sovereign immunity is not a magic phrase which can defeat any and all claims and avoid responsibility for any and all acts by tribal officials. Federal district courts clearly have the authority to review whether a tribe correctly applied sovereign immunity. National Farmers Union, 471 U.S. at 852-53. a. Whether Sovereign Immunity Has Been Waived is a Federal Question. Defendant maintains that,... in an action against an Indian tribe... 1331 will only confer subject matter jurisdiction where another statute provides a waiver of sovereign immunity or the tribe unequivocally waives its immunity. (Emphasis added by defendant.) Page 21, Def s. Mtn. to Dismiss. Indeed, whether any of the original Defendant entities or individuals actually had sovereign immunity or had waived it is the key question and underlies the other issues of statutes of limitation and dismissal before discovery. Plaintiff s Response to Motion to Dismiss Page 9 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 10 of 15 CCHA is not an arm of tribal government. It is a separate Section 17 corporation formed by the Tribe for business purposes. See page 9-10 of Exhibit. O, Appel. Brief in Support of Appeal, August 25, 2009. 2 Plaintiffs maintain that a correct reading of the sue and be sued clause is consistent with the purpose of a business corporation which builds and rents housing for tribal residents. That it serves a public purpose does not, by itself, make it an arm of the tribe any more than if it were a casino or a grocery store. That Business Committee members sit on the board of directors does not make it a tribal agency. The Tribe shielded itself against any liability from CCHA losses in Ordinance 3-63 (Pl.s Exhibit C), and this alone can differentiate an entity from being an arm of the tribe. Runyon v. Ass n of Vill. Council Presidents, 84 P.3d 437 (Alaska, 2004) (financial liability as the sole factor in the arm of the tribe analysis). The Tribe waived Sovereign immunity for CCHA in the sue and be sued clause in Tribal ordinance 3-63 when it created the entity. Also, Plaintiffs have alleged that a contract exists between Glenn Eagleman and CCHA. Exhibit A. 1,Tribal Compl. The full terms of that contract remain unknown. proceedings. 2 Plaintiffs reserve the right to augment argument beyond that presented here in later Plaintiff s Response to Motion to Dismiss Page 10 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 11 of 15 c. CCHA Waived Sovereign Immunity. Plaintiffs allege that a subsequent waiver may be found in the contract between Glenn and CCHA for the building and payments for his house. Glenn requested a copy of the contract, but CCHA has never responded. His copy is buried in the foundation of his house. Exhibit. A Tribal Compl. at 34, 49-61. Ds allege that no such instrument exists on page 24 of the Motion to Dismiss. Defendants apparently assert that a federally funded tribal housing authority would agree to deliver a house to a persons parcel, and arrange for other entities, private and public, to provide a foundation, septic, and electric service, without CCHA having contracted with Glenn or any other individual or entity. Defendants have here presented a fact question which begs discovery. Dismissal in the tribal court before discovery was fundamentally unjust and left Plaintiffs without any remedy. d. Sue and Be Sued Clauses Waive Tribal Sovereign Immunity. Ds rely on the 8 th circuit opinion in Hagen to support their contention that sue and be sued does not really mean sue and be sued in the absence of a contract with a plaintiff. Hagen v. Sisseton-Wahpeton Community College, 205 F. 3d 1040 (8 th Cir. 2000), and other decisions by courts outside the 9 th Circuit; Mot. to Dismiss at pp 24-25. Courts in the 9 th circuit, including Indian courts, follow a plain meaning Plaintiff s Response to Motion to Dismiss Page 11 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 12 of 15 interpretation. Plaintiffs discuss the range of opinion in their tribal court appellate briefs pages 10-15 and Exhibit. O, Appel. Brief in Support of Appeal; and Ex. P, Appel. s Supplemental Brief. Plaintiffs add Runyon to this list. Runyon v. Ass n of Vill. Council Presidents, 84 P.3d 437, 440 (Alaska, 2004). The 9 th Circuit Marceau court opinion (discussed in the appellate briefs) provides persuasive authority for this court to follow other 9 th circuit district courts. Marceau v. Blackfeet Housing Authority, 455 F. 3d 974, 978-983 (9 th Cir., 2005), decision withdrawn in Marceau v Blackfeet Housing Authority, 540 F. 3d 916 (9 th Cir., 2008) to allow exhaustion of tribal remedies. e. Procuring Insurance or Participating in a Risk Management Pool Is Relevant to the Discussion of Sovereign Immunity and a Waiver May Eventually be Found. Plaintiffs extensively discussed the relationship of insurance regulations and policies to sovereign immunity on pages 16-17 and 12-13 respectively of the appellate briefs. Pl. s Exhibit O, App. Brief in Support of Appeal, August 25, 2009; and Exhibit P, Appel. s. Supplemental Brief, January 19, 2010. f. Tribal Officials and Employees Do Not Always Enjoy Sovereign Immunity. Tribal officials enjoy sovereign immunity when they are tribal officials of an entity that has sovereign immunity; and so long as they act within the scope of their Plaintiff s Response to Motion to Dismiss Page 12 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 13 of 15 authority or employment. (Emphasis added.) Imperial Granite v. Pala Band, 940 F.2d 1269, 1271 (9 th Cir. 1991). If CCHA or other entities do not have tribal sovereign immunity, then Susan Hay and Thella Billy or other officials or employees do not have immunity. Defendants have asserted immunity for Hay and Billy but they have not asserted that illegal acts and fraud are within the scope of their employment. Plaintiffs alleged illegal acts and fraud. Pl. s Exhibit A, Tribal Compl. at 36, 37 and 51-63. VI. DEFENDANTS MOTION MUST BE TREATED AS IF FOR SUMMARY JUDGMENT UNDER RULE 56. Defendants have presented and argued matters outside the Complaint. If not excluded by the court, the motion must be treated as for Summary Judgment. Rule 12(d). CONCLUSION According to Chippewa- Cree tribal law and federal law, as interpreted by the Tribe, if you do not have an express waiver of tribal immunity in hand, or file discovery with your complaint, and the tribe says the magic phrase sovereign immunity, then an injured party may be left without a remedy in any court. A plaintiff cannot file a complaint and survive a motion to dismiss based on sovereign immunity unless plaintiff filed a concurrent request for discovery along Plaintiff s Response to Motion to Dismiss Page 13 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 14 of 15 with the complaint. But such a rule does not exist in tribal code or any other law. CCHA is not an arm of the tribe but a free standing corporation established for a public purpose which may sue or be sued. And, it may also waive sovereign immunity for business purposes. Officials and employees of CCHA or any other entity do not have immunity if the entity that employs them does not. Plaintiffs have born their burden of proof under Rule 12 (b). Plaintiffs have standing, this claim is based in federal law, all tribal legal or administrative remedies were exhausted, and there is a live controversy subject to this courts jurisdiction. WHEREFORE, Plaintiffs request that Defendants Motion to Dismiss be Denied. Alternately, Plaintiffs request that Defendants Motion to Dismiss be converted to a mtn for summary judgment, and allowed to present such material as may be pertinent to the motion. Alternately, Plaintiffs request that they be granted the discovery as to defendant entities that they have been so far denied, so that they may establish their allegations and return with supporting factual information. Alternately, Plaintiffs request that they be allowed to amend their Complaint for the purpose of curing defects in pleadings. Plaintiff s Response to Motion to Dismiss Page 14 of 15

Case 4:14-cv-00073-BMM Document 33 Filed 07/31/15 Page 15 of 15 Dated this 31st_ day of July 2015. /s/ Mark Mackin MARK MACKIN, Attorney to Plaintiffs I hereby certify that Plaintiffs Brief in opposition to Defendants Combined Motion to Dismiss is double spaced and is set in Times New Roman 14 point font and contains 3199 words. /s/ Mark Mackin I hereby certify that the exhibits attached are true copies of the originals or other copies in my possession. /s/ Mark Mackin CERTIFICATE OF SERVICE I HEREBY CERTIFY this 31st day of December, 2014, that a copy of the foregoing will be delivered this day via the Court s ECF system to the following: Evan Thompson, Attorney to CCHA, Susan Hay, and Thela Billy Dan Belcourt, Attorney to the Chippewa Cree Tribal Business Committee and all other Defendants. /s/ Mark Mackin Plaintiff s Response to Motion to Dismiss Page 15 of 15