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Montana v. Gilham

 

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The Ninth Circuit held that a state’s sovereign immunity under the Eleventh Amendment bars an unconsented tort action filed by an individual in tribal court. Montana has such immunity and did not waive it in its state constitution.

In 1986, Christine Gilham was fatally injured when the automobile in which she was a passenger struck a permanently anchored highway sign. The accident occurred on the Blackfeet Indian Reservation, located within the State of Montana. Toni Gilham, the victim’s mother, brought suit in the Blackfoot tribal court against the state of Montana and the driver of the car, who was intoxicated at the time of the accident. The claims against Montana alleged that the state was negligent in its design, construction, and maintenance of the intersection where the accident occurred.

Montana filed a motion to dismiss for lack of jurisdiction due to Montana’s immunity from suit as a sovereign under the Eleventh Amendment. The tribal court denied the motion, and at trial the state of Montana and the driver were found jointly and severally liable for approximately $160,000. Montana appealed unsuccessfully to the Blackfeet Court of Appeals and the Blackfeet Supreme Court. Montana next filed for declaratory relief in the U.S. District Court, which granted summary judgment to Montana. Gilham appealed to the Ninth Circuit.

The Ninth Circuit analyzed the sovereign immunity issue in two steps. The court first addressed the question of whether Montana had sovereign immunity from suit in a tribal court. Next it determined whether Montana had waived immunity in its state constitution.

Although the Eleventh Amendment prohibits unconsented suits against a state in federal court, the express terms do not extend to tribal court.[1] The Eleventh Amendment specifically waives sovereign immunity as to Article III courts, but tribal courts are not Article III courts. Therefore, the court held the Eleventh Amendment inapplicable to suits brought in tribal court.

The Ninth Circuit next examined the sovereign powers retained by both the state of Montana and the Blackfeet tribe. The court noted that upon entering the union, states were required to surrender immunity from suits brought by other states, but did not surrender their immunity from tribal, foreign, or federal courts. The tribes retained all sovereignty possessed as original inhabitants of the continent, unless this sovereignty was removed by Congress or proved to be inconsistent with an overriding federal interest.

The court also examined whether the tribes traditionally had the power to bring a state into its court. In Oliphant v. Suquamish Indian Tribe,[2] the U.S. Supreme Court held that Indian tribes did not have criminal jurisdiction over non-Indians, because such authority was not part of their retained, inherent sovereignty. Therefore, the Court concluded that states retained their immunity from suits by individuals and tribes did not hold the power that abrogates that immunity.

The Ninth Circuit also examined the present case in the context of Nevada v. Hall.[3] In Hall, the Supreme Court held that Nevada’s sovereign immunity did not protect the state from a suit in California state court brought by a California resident injured in an automobile accident caused by an employee of the state of Nevada. The Supreme Court held there were no constitutional limits on the power of a state to allow its courts to have jurisdiction over another state.

The Ninth Circuit held that Hall did not apply to tribal courts, and even if it did, it would be inapplicable to Gilham’s suit. Hall is limited to cases where the exercise of sovereign jurisdiction does not threaten the constitutional system of cooperative federalism. However, Gilham’s suit attempting to hold Montana liable for highway design decisions involved governmental processes, and therefore fell outside the scope of Hall.

The tribal court also held that Montana was immune from suit in Blackfeet tribal court, but found that Montana had waived that immunity in its constitution. However, the Ninth Circuit held that this waiver applied only to Montana’s own courts. Although the Montana Constitution declared that Montana waived immunity, it was not clear in which courts the waiver applied. The Ninth Circuit interpreted the waiver narrowly, and held that it applied only to Montana state courts, not to tribal or federal courts.


[1]The Eleventh Amendment provides that “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” U.S. Const. amend. XI.

[2]435 U.S. 191 (1978).

[3]440 U.S. 410 (1979).

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