Eagle Bear Inc. et al v. The Blackfeet Indian Nation et al
Filing
27
ORDER denying 4 Motion for Preliminary Injunction. Signed by Judge Brian Morris on 11/17/2021. (TLO)
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 1 of 25
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
EAGLE BEAR, INC. and WILLIAM
BROOKE,
CV-21-88-GF-BMM
Plaintiffs,
ORDER ON PRELIMINARY
INJUNCTION
vs.
THE BLACKFEET INDIAN NATION
and THE BLACKFEET TRIBAL
COURT,
Defendants.
INTRODUCTION
Eagle Bear, Inc. (“Eagle Bear”) and William Brooke (collectively,
“Plaintiffs”) brought this action against the Blackfeet Tribal Court and the Blackfeet
Indian Nation (“Blackfeet Nation”). Plaintiffs seek declaratory and injunctive relief
to prevent the Blackfeet Tribal Court from exercising jurisdiction over their dispute
with the Blackfeet Nation. (Doc. 1.) Plaintiffs filed a motion for preliminary
injunction on August 10, 2021. (Doc. 4.) The Court held a hearing on the motion on
September 2, 2021. (Doc. 16.)
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 2 of 25
BACKGROUND
The record currently before the Court relevant to its consideration of
Plaintiffs’ motion for preliminary injunction consists of the following documents:
• The April 11, 1997 lease agreement between Eagle Bear and the Blackfeet
Nation. (Doc. 1-2.)
• Blackfeet Nation’s July 16, 2021 complaint against Eagle Bear and William
Brooke. (Doc. 1-3.)
• Blackfeet Nation’s July 24, 2021 petition for attachment in Blackfeet Tribal
Court. (Doc. 5-1.)
• William Brooke’s affidavit. (Doc. 5-2.)
2008 lease dispute
• BIA Superintendent’s January 15, 2008 notice of late payment to Eagle Bear.
(Doc. 25-2.)
• BIA Superintendent’s March 27, 2008 10-day notice to Eagle Bear. (Doc. 253.)
• BIA Superintendent’s April 4, 2008 second 10-day notice to Eagle Bear.
(Doc. 25-4.)
• BIA Superintendent’s June 10, 2008 letter cancelling the lease. (Doc. 14-1 at
3.)
• Eagle Bear’s June 18, 2008 notice of appeal of the lease cancellation.
(Docs. 14-1 at 4; 25-6.)
• Eagle Bear’s June 16, 2008 payment of 2007 rent. (Docs. 14-1 at 5; 25-5.)
• BIA’s payment history for Eagle Bear. (Doc. 14-1 at 6-8.)
• Eagle Bear’s withdrawal of the June 18, 2008 notice of appeal of the lease
cancellation. (Docs. 14-1 at 9; 25-1.)
2017 lease dispute
• Blackfeet Nation’s April 26, 2017 notice of default to Eagle Bear (Doc. 231.)
• Eagle Bear’s April 28, 2017 response to notice of default (Doc. 23-2.)
• Eagle Bear’s July 7, 2017 arbitration demand to Blackfeet Nation (Doc. 233.)
2
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 3 of 25
• Eagle Bear’s July 13, 2017 arbitration demand to Blackfeet Nation (Doc. 234.)
• Blackfeet Nation’s August 7, 2017 letter to the Bureau of Indian Affairs
(“BIA”). (Doc. 1-4.)
• Eagle Bear’s August 15, 2017 letter to the BIA. (Doc. 1-5.)
• BIA’s September 7, 2017 decision requiring mediation. (Doc. 1-6.)
• BIA Superintendent’s October 17, 2017 letter cancelling the lease agreement.
(Doc. 1-7.)
• Blackfeet Nation’s Dec. 14, 2017 letter to William Brooke. (Doc. 1-8.)
• Eagle Bear’s appeal of the BIA’s September 7, 2017 decision. (Doc. 1-9.)
• Eagle Bear’s appeal of the October 17, 2017 cancellation. (Doc. 1-10.)
• BIA Regional Director’s April 4, 2018 decision requiring mediation. Eagle
Bear’s appeal of the October 17, 2017 cancellation. (Doc. 1-11.)
• Blackfeet Nation’s November 12, 2019 opening brief to the Interior Board of
Indian Appeals (“IBIA”). (Doc. 1-12.)
• IBIA’s March 2, 2021 decision denying expedited review. (Doc. 1-13.)
• Blackfeet Nation’s July 28, 2021 motion to dismiss for mootness. (Doc. 115.)
• Eagle Bear’s August 30, 2021 opening brief in opposition of Blackfeet
Nation’s motion to dismiss for mootness. (Doc. 18-8.)
• Eagle Bear’s response to Blackfeet Nation’s 2021 motion to dismiss for
mootness (Doc. 5-3.)
• IBIA’s August 10, 2021 decision denying Blackfeet Nation’s motion to
dismiss for mootness. (Docs 12-1; 14-1 at 1-2.)
The Court expects that the parties will develop the record further during the
discovery and pre-trial motion processes. A preliminary “injunction is not a
preliminary adjudication on the ultimate merits.” Sierra On–Line, Inc. v. Phoenix
Software, Inc., 739 F.2d 1415, 1423 (9th Cir. 1984). “[T]he findings of fact and
conclusions of law made by a court granting a preliminary injunction are not binding
at trial on the merits.” U. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830,
68 L.Ed.2d 175 (1981); see also Sierra On–Line, 739 F.2d at 1423. The Court will
3
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 4 of 25
confine itself to the Parties’ submitted documents in analyzing Plaintiffs’ request for
a preliminary injunction. The record, as presently constituted, contains significant
gaps that impede the Court’s ability to assess properly the likelihood of Plaintiffs’
success on the merits.
The Blackfeet Nation and Eagle Bear entered into a lease agreement on April
9, 1997. (Doc. 1-2.) The lease provided Eagle Bear 53.6 acres to operate a KOA
campground within the exterior boundaries of the Blackfeet Nation’s tribal land. (Id.
at 2.) The lease called for a term of 25 years. (Id. at 3.) Eagle Bear retained the option
to extend the term for an additional 25 years, contingent to the Blackfeet Nation’s
right to purchase the lease extension. (Id. at 3-4.) The BIA approved and
administered the lease. (See id. at 1; also 25 C.F.R. §§ 162.001 et seq.)
It appears from the record that Eagle Bear failed to uphold the terms of the
lease. The lease required an annual payment of rent and royalties on November 30
of each year. (Doc. 1-2 at 4-5.) The record before the Court shows that Eagle Bear’s
1997 rent payment was 32 days delinquent; the 1998 rent payment was 269 days
delinquent; the 1999 rent payment was 272 days delinquent; the 2000 rent payment
was 259 days delinquent; the 2001 rent payment was 229 days delinquent; the 2002
rent payment was 907 days delinquent; the 2003 rent payment was 207 days
delinquent; the 2004 rent payment was 260 days delinquent; and the 2005 rent
payment was 202 days delinquent. (Doc. 14-1 at 6-8.)
4
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 5 of 25
When Eagle Bear failed to pay the 2007 rent for 46 days, the BIA sent Eagle
Bear notice stating “[y]ou are advised to make payment for this lease, or show cause
why your lease should not be cancelled for non payment of the rent due.” (Doc. 252.) Eagle Bear did not pay. The BIA sent another notice to Eagle Bear on Eagle
Bear’s 118th day of delinquency stating “[y]ou are advised to make payment within
10 days of this notice or show cause why your lease should not be cancelled for non
payment of the rent due.” (Doc. 25-3.)
The BIA sent another notice on the 126th day that Eagle Bear’s rent was pastdue in which it reiterated the 10-day period. (Doc. 25-4.) On the 193rd day without
Eagle Bear’s payment—75 days after the initial 10-day notice—the BIA finally took
action. The BIA superintendent cancelled the lease between Eagle Bear and the
Blackfeet Nation on June 10, 2008. (Doc. 14-1 at 3.) The BIA Superintendent
informed Eagle Bear “that this lease is hereby cancelled.” (Id.) The BIA’s
cancellation letter provided that Eagle Bear needed to file an appeal of the
cancellation to the Rocky Mountain Regional Director within 30 days. (Id.)
Eagle Bear timely appealed the lease cancellation decision to the BIA Rocky
Mountain Regional Director on June 18, 2008. (Id. at 4.) Eagle Bear explained that
it had submitted its lease payments for the previous few years “after the summer
camping season begins in late May or June.” (Id.) Eagle Bear submitted rent payment
to the BIA in trust for the Blackfeet Nation on that same date. (Id.) Eagle Bear
5
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 6 of 25
withdrew its appeal on January 5, 2009. (Id. at 9.) Eagle Bear based its withdrawal
on “discussions with [BIA] realty staff.” (Id.) In its letter withdrawing the appeal,
Eagle Bear states that the BIA advised Eagle Bear that the annual payments were
received, and “[a]ccordingly, the lease is current.” (Id.) Nothing in the record
indicates, however, that the BIA took any action at any level to rescind its decision
to cancel the lease. The Rocky Mountain Regional Director of the BIA possessed
the sole authority to overturn the lease cancellation. See 25 C.F.R. § 2.4.
Eagle Bear continued to operate as if the lease remained in effect until the
Blackfeet Nation requested that the BIA cancel the lease on August 7, 2017. (Doc.
1-4 at 1.) The Blackfeet Nation complained in 2017 of several material breaches of
the lease. (Id.) The BIA superintendent required mediation initially, but both the
Blackfeet Nation and Eagle Bear appealed. The BIA superintendent determined that
the lease should be cancelled on Oct 17, 2017. (Doc. 1-7 at 1.) Eagle Bear timely
appealed the BIA superintendent’s decision to the BIA Rocky Mountain Regional
Director, who overturned the 2017 lease cancellation and ordered mediation and
arbitration on November 17, 2017. (Doc. 1-10 at 1.) The Blackfeet Nation appealed
the Regional Director’s decision to the Interior Board of Indian Affairs (“IBIA”).
(Doc. 1-12.) The IBIA denied expedited consideration of the issue (Doc. 1-13) and
no progress was made on the appeal until July of 2021.
6
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 7 of 25
Through the production of the administrative record for the appeal to the IBIA
the Blackfeet Nation became aware of the BIA’s 2008 lease termination. (Doc. 1-15
at 1.) On the belief that the 2008 lease termination became final following Eagle
Bear’s withdrawal of appeal, the Blackfeet Nation filed a complaint in Blackfeet
Tribal Court and a motion to dismiss as moot its appeal with the IBIA. (Id.) The
IBIA denied the motion to dismiss on August 10, 2021, and instead stayed the appeal
and authorized the BIA to act on the Tribe’s request that the BIA either honor the
June 10, 2008 cancellation or produce evidence that the cancellation had been
reversed. (Doc. 14-1 at 1-2.) The Court knows of no further action by the IBIA on
the appeal.
The Blackfeet Nation’s complaint against Eagle Bear in the Blackfeet Tribal
Court alleges the following claims: 1) illegal trespass seeking eviction; 2) accounting
of Plaintiffs’ rents and profits since June 10, 2008; 3) unauthorized use of Blackfeet
Nation lands seeking illegally gained profits; 4) fraudulent misrepresentation
seeking illegally gained profits; and 5) failure to follow the laws of the Blackfeet
Nation seeking damages. (Doc. 1-3.)
LEGAL STANDARD
The issuance of a preliminary injunction represents an extraordinary remedy
that should not be awarded as a matter of right, but only “upon a clear showing that
the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555
7
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 8 of 25
U.S. 7, 22 (2008). A plaintiff who seeks a preliminary injunction or temporary
restraining order must establish four elements: 1) that it will likely succeed on the
merits; 2) that it will suffer irreparable harm in the absence of preliminary relief; 3)
that the balance of equities tips in its favor; and 4) that an injunction will serve the
public interest. See id. at 20. Courts in the Ninth Circuit apply a sliding scale
approach to preliminary relief. See All. for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011).
The reviewing court must balance the elements “so that a stronger showing of
one element may offset a weaker showing of another.” Id. Even “serious questions
going to the merits and a balance of hardships that tips sharply towards the plaintiff
can support issuance of a preliminary injunction, so long as the plaintiff also shows
that there is a likelihood of irreparable injury and that the injunction is in the public
interest.” Id. at 1135.
ANALYSIS
I.
Preliminary Injunction Analysis
Plaintiffs allege that the Blackfeet Tribal Court lacks jurisdiction over the
Blackfeet Nation’s complaint for the following reasons: 1) the complaint raises
issues of federal law; 2) William Brooke is not a member of the Blackfeet Tribe; 3)
the Blackfeet Nation’s claims are subject to BIA administrative proceedings; 4) The
8
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 9 of 25
BIA is an indispensable party; 5) the lease requires arbitration; 6) this Court has
exclusive jurisdiction under the lease. (Doc. 5.)
Success on the Merits
Plaintiffs’ arguments rely primarily upon the continued existence of the lease
between Eagle Bear and the Blackfeet Nation. Whether Plaintiffs are likely to
succeed on the merits thus depends largely upon whether the lease was ultimately
cancelled by the BIA in 2008. The record at this stage appears to indicate that the
BIA cancelled the lease for the reasons described below. (Doc. 14-1 at 3.)
The 2008 lease cancellation
The BIA had established a straightforward regulatory procedure to cancel
non-agricultural leases on tribal lands for delinquent payment at the time of the
dispute between Eagle Bear and the Blackfeet Nation in 2008 regarding late
payments. A review of that regulatory framework follows. The BIA could “issue
bills or invoices to a tenant in advance of the dates on which rent payments are due
under a lease.” 25 C.F.R. § 162.613 (2008). It remained “the tenant's obligation to
make such payments in a timely manner.” Id. A tenant’s obligation would “not be
excused if such bills or invoices [were] not delivered or received.” Id. Untimely rent
payments remain subject to interest accruing “by the due date [. . .] specified in the
lease.” 25 C.F.R. § 162.614 (2008). “A tenant's failure to pay rent in the time and
9
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 10 of 25
manner required by a lease [constitutes] a violation of the lease.” 25 C.F.R. §
162.614 (2008).
The regulations further required the BIA to issue notice of a delinquent
payment violation within 5 business days of the date on which the rent payment was
due. Id. If the tenant failed to cure the violation “within 10 business days” of the
BIA’s notice, the BIA could cancel the lease and take immediate action to recover
the unpaid rent. Id. (emphasis added); 25 C.F.R. § 162.618 (2008). The tenant had
the right to appeal a cancellation within 30 days of the notice of that cancellation. 25
C.F.R. § 162.621 (2008). A BIA superintendent’s decision to cancel a lease for
delinquent payment could be overturned only by the BIA “Area Director” who
oversees the superintendent. 25 C.F.R. § 2.4.
Other than providing Eagle Bear excess time to pay its delinquent debts, the
BIA appears to have followed regulatory procedure when canceling the lease
between Eagle Bear and the Blackfeet Nation in 2008. The record indicates that
Eagle Bear was more than 5 days delinquent on its 2007 rent payment. (Doc. 14-1
at 6-8); see 25 C.F.R. § 162.614 (2008). The BIA gave 10-days notice of cancellation
to Eagle Bear. See id. Eagle Bear failed to cure its violation within that 10-day
period. The record appears to establish that the BIA then exercised its authority to
cancel the lease on June 10, 2008. See 25 C.F.R. § 162.618 (2008); (Doc. 14-1 at 3.)
Eagle Bear filed a timely appeal. Eagle Bear’s appeal effectively stayed the
10
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 11 of 25
cancellation decision for the duration of the appeal. See 25 C.F.R. § 162.621 (2008).
A ruling by the BIA Rocky Mountain Regional Director constitutes the only action
that could overturn the lease cancellation. See 25 C.F.R. § 2.4.
Eagle Bear withdrew its appeal on its own accord “pursuant to [its]
discussions” with BIA realty staff. (Doc. 14-1 at 9.) Eagle Bear’s withdrawal of the
appeal made the lease cancellation effective. 25 C.F.R. § 162.621 (2008); see also
25 C.F.R. 2.6(b) (“Decisions made by officials of the Bureau of Indian Affairs shall
be effective when the time for filing a notice of appeal has expired and no notice of
appeal has been filed.”). Nothing in the record indicates that the BIA’s regional
director took any action to overturn the cancellation. In fact, nothing in the record
indicates that the BIA so much as acknowledged Eagle Bear’s claim on January 5,
2009, that “the lease [was] current.” (See Doc 14-1 at 9.) The BIA’s decision to
cancel the lease in 2008 thus would have proved final through the administrative
procedures of the BIA. See 25 C.F.R. § 162.621 (2008). The record before the Court
contains no document to indicate that the BIA Rocky Mountain Regional Director
took any step to overturn the lease cancellation. No lease would exist between Eagle
Bear and the Blackfeet Nation under the circumstances.
Eagle Bear argues that the lease was not cancelled because the BIA continued
to operate as if the lease remained in effect until 2017. The BIA lacks authority to
revive a cancelled lease, however, without the consent of the Blackfeet Nation. See
11
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 12 of 25
Moody v. United States, 931 F.3d 1136, 1142 (Fed. Cir. 2019). The Court questions
how the BIA’s alleged oral representations to the contrary could have any effect in
overturning the final cancellation of a lease. Id. Moody v. United States, 931 F.3d
1136, proves closely analogous.
The plaintiffs in Moody failed to pay rent for agricultural leases on tribal lands.
931 F.3d at 1138. The BIA cancelled the leases for untimely payment. Id. The
plaintiffs provided the BIA full payment for the past-due rents within the 30-day
appeal period. Id. at 1139. The BIA orally informed the plaintiffs that “they did not
need to appeal, [and] could continue farming the land according to the leases.” Id.
Despite the BIA’s oral representations, the Federal Circuit determined that the BIA
had cancelled the leases. Id. at 1142.
The Federal Circuit reasoned that “[i]t is difficult to see how the United States,
without specific authorization, could enter into an implied-in-fact contract [. . .] on
behalf of the tribe.” Id. “The BIA does not have general authority to lease land held
for the benefit of a tribe unless it receives direct authorization from the tribe.” Id.
(citing 25 C.F.R. § 162.207(a)). The Federal Circuit determined that the plaintiffs
could “not present any salient legal support for their position that the BIA can revive
a cancelled lease without tribal authorization.” Id.
Eagle Bear’s actions based on the record presented appear to mirror those of
the plaintiffs in Moody. Eagle Bear was delinquent on its lease payments. (Doc. 1412
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 13 of 25
1 at 6-8.) The BIA eventually cancelled the lease between Eagle Bear and the
Blackfeet Nation for delinquent payment. (Doc. 25-6.) Eagle Bear made payment
after the BIA had cancelled the lease and appears to have entered into an impliedin-fact contract similar to the one in Moody. (Doc. 14-1 at 4-5.) Eagle Bear now
argues that the lease continued as a result of its late payment. (Id. at 9; Doc. 5-3 at
9.) Eagle Bear also attempts to rely on unverified oral representations by the BIA
suggesting that the lease would continue. (Doc 5-3 at 10.)
The Federal Circuit rejected the argument that the lease persists based on the
BIA’s oral representations. Moody, 931 F.3d at 1142. The Court fails to understand
how that same argument could be persuasive here. Eagle Bear and the BIA remain
beholden to the BIA’s administrative process and regulations. See 25 C.F.R. §
162.001 et seq. The BIA’s apparent oral communications with William Brooke
regarding lease reinstatement fail to cure Eagle Bear’s disregard of BIA regulations.
See Moody, 931 F.3d at 1142. The record suggests that the lease has been cancelled
in 2008 when Plaintiffs failed to complete their appeal.
Blackfeet Tribal Court jurisdiction over Plaintiffs
In light of the facts in the record pointing to the lease having been cancelled
by the BIA in 2008, the analysis for Blackfeet Tribal Court jurisdiction in this
instance closely resembles the tribal court jurisdictional question in Water Wheel
Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 2011) (“Water
13
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 14 of 25
Wheel”). In Water Wheel, Robert Johnson, a non-Indian, controlled and operated the
Water Wheel Camp on tribal lands through a lease agreement with the Colorado
River Indian Tribes (“CRIT”). Id. at 805. Johnson continued to operate Water Wheel
after the lease agreement with the CRIT had been terminated. Id.
The CRIT sued Johnson and Water Wheel in tribal court. Id. at 805-06.
Johnson sought an injunction in federal court to challenge tribal court jurisdiction.
Id. The Ninth Circuit determined that “through its sovereign authority over tribal
land, the [tribe] had power to exclude Water Wheel and Johnson, who were
trespassers on the tribe's land and had violated the conditions of their entry.” Id. at
811. The tribe’s adjudicatory authority included claims of eviction, unpaid rent,
damages from the tribe's loss of use of their property, and attorney's fees. Id.
Plaintiffs seek to disregard Water Wheel and instead point to Montana v.
United States, 450 U.S. 544 (1981), as controlling this case. The Ninth Circuit
determined in Water Wheel, however, that Montana did not apply to the
circumstances of non-Indians operating on tribal land. Water Wheel, 642 F.3d at 810
(citing Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144–45 (1982)). No
inherent state interest needed to be considered as the activity directly interfered with
the tribe’s inherent power to exclude and manage its own land. Id. at 814. Montana
only limits a tribe's ability to regulate non-Indians on non-tribal land. Id.; see also
Grand Canyon Skywalk Dev., LLC v. ‘Sa’ Nyu Wa, Inc., 715 F.3d. 1196, 1204.
14
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 15 of 25
The Montana limits on a tribe’s power to exclude do not apply on tribal land.
Id. The CRIT’s power to exclude non-Indians necessarily included the
accompanying power to regulate the activities of non-Indians on tribal land. Water
Wheel, 642 F.3d at 812. The Ninth Circuit made this point clear: “where the nonIndian activity in question occurred on tribal land, the activity interfered directly
with the tribe's inherent powers to exclude and manage its own lands, and there are
no competing state interests at play, the tribe's status as landowner is enough to
support regulatory jurisdiction without considering Montana.” Id. at 814. The Ninth
Circuit concluded that, even if Montana had applied, the lease agreement constituted
a sufficient consensual connection between Water Wheel and the CRIT for
Montana’s first exception to have been met. Id. at 817.
William Brooke is a non-Indian who controls and operates a recreational area
on Blackfeet tribal land. Land ownership status may prove a dispositive factor in
determining whether to uphold a tribe’s regulation of non-Indians. Nevada v. Hicks,
533 U.S. 353, 360 (2001); Grand Canyon Skywalk, 715 F.3d. 1196, 1204. Similar to
Water Wheel or Grand Canyon Skywalk, the “access to valuable tribal land”
represents “the essential basis for the agreement.” Grand Canyon Skywalk, 715
F.3d.at 1204. Indian tribes maintain broad regulatory authority over the conduct of
both tribal and non-tribal members on Indian land. Strate v. A–1 Contractors, 520
15
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 16 of 25
U.S. 438, 454; Grand Canyon Skywalk, 715 F.3d at 1204; Water Wheel, 642 F.3d at
804-05.
The Ninth Circuit provided further guidance as to the proper application of
Montana to tribal lands in McDonald v. Means, 309 F.3d 530 (9th Cir. 2002). A
tribal member was involved in a vehicle collision with a non-member’s horse that
had wandered onto a BIA road within an Indian reservation. 309 F.3d at 535-36. The
tribal member sued the non-member in tribal court. Id. at 536. The non-member
sought relief in federal court. Id.
The Ninth Circuit reversed the district court’s dismissal based on
itsconclusion that the federal regulations applicable to the tribal right-of-way grant
to the BIA differed from the state highway at issue in Strate. Id. at 537. The U.S.
Supreme Court determined in Strate that the tribe had relinquished all gatekeeping
rights over the state highway right-of-way. Strate, 520 U.S. at 455-56. The Ninth
Circuit contrasted this total relinquishment of gatekeeping rights over a state
highway in Strate with a BIA road. The Ninth Circuit recognized the BIA road to be
an “Indian reservation road” over which the tribe retained significant tribal
responsibilities and tribal control that reserved the tribe’s gatekeeping authority.
McDonald, 309 F.3d at 537-40. The Ninth Circuit relied, in part, on the fiduciary
nature of the relationship between the tribe and the BIA in determining that the grant
of a right-of-way to the BIA did not encumber significantly the tribe’s right to
16
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 17 of 25
occupy and exclude from that tribal property. Id. at 538; see also Takeda Pharms.
America, Inc. v. Conelly, 2015 WL 10985374 at *3-4 (D. Mont. 2015) (discussing
fiduciary responsibilities of BIA in administering Public Health Service’s lease of
tribal land).
Eagle Bear continues to operate the KOA campground on the Blackfeet
Nation’s tribal land despite the lease agreement with the Blackfeet Nation apparently
having been cancelled by the BIA in 2008. Under Water Wheel, the Blackfeet Tribal
Court would possess jurisdiction to hear claims relating to the alleged trespass of
Eagle Bear and William Brooke on Blackfeet tribal lands. Id. at 819-820. The Ninth
Circuit in Water Wheel squarely addressed Brooke’s arguments that he cannot be
sued in his individual capacity. Id. Brooke stands subject to tribal jurisdiction to the
extent he is not protected by the corporate structure of Eagle Bear as the alleged
holdover tenant. Id.
Even if Montana were the correct analysis to apply to this case, the first
exception still would indicate tribal court jurisdiction appropriate. The first Montana
exception exists where non-Indians “enter consensual relationships with the tribe or
its members.” See Montana, 450 U.S. at 566. William Brooke and Eagle Bear
operated the KOA campground on tribal land. William Brooke and Eagle Bear
voluntarily entered into a consensual relationship with the Blackfeet Nation to
operate that business on tribal land. See id.
17
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 18 of 25
Plaintiffs make a myriad of other arguments that could preclude tribal court
jurisdiction. None prove persuasive. The apparent cancellation of the lease by the
BIA in 2008 based on the record presented would nullify some of Plaintiffs’
arguments. The lease required that the parties participate in arbitration and provided
that this Court maintains jurisdiction over disputes arising from the lease. (Doc. 1-2
at 23, 37-38.) Plaintiffs argue, under the assumption that the lease remains in effect,
that the Court must enforce those terms. Given that the lease appears to have been
cancelled in 2008, however, those terms would not apply to this claim for a
preliminary injunction. Plaintiffs might have argued that the lease’s forum-selection
or arbitration clauses should survive the lease cancellation. The Blackfeet Nation’s
claims would not arise out of the terms of the cancelled lease and so that argument
too would fail.
Plaintiffs also argue that the Blackfeet Nation must exhaust administrative
remedies before bringing suit in tribal court. As discussed above, the Blackfeet
Nation and Plaintiffs appear to have exhausted BIA’s administrative proceedings
with respect to the lease. The cancellation would have become final in 2008 once
the lease cancellation was not overturned on appeal. See 25 C.F.R. §§ 162.621, 2.6b
(2008). The conclusion of the BIA’s proceedings would mean that the lease between
the Blackfeet Nation and Eagle Bear no longer exists. See Moody, 931 F.3d at 1138.
The BIA lacks further authority to deliberate over the apparently cancelled lease
18
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 19 of 25
agreement. See id. The Blackfeet Nation must exhaust no further administrative
remedies before bringing its complaint in tribal court.
As the administrator of the lease agreement, the BIA may have been a
necessary party if the Blackfeet Nation’s complaint challenged terms of a stillexisting lease. See Fed. R. Civ. P. 19(a)(1). The BIA does not appear to be a
necessary party to the Blackfeet Nation’s suit in the Blackfeet Tribal Court. The
apparent termination of the lease by the BIA in 2008 would mean that none of the
Blackfeet Nation’s claims arise from the now terminated lease’s terms.
Plaintiffs’ argument that the Blackfeet Nation’s complaint raises federal
questions requires the Court to look at the nature of the claims brought by the
Blackfeet Nation. The Blackfeet Nation’s complaint alleges the following claims: 1)
trespass; 2) accounting of all rents and profits since June 10, 2008; 3) unauthorized
use of Blackfeet land; 4) fraudulent misrepresentation; and 5) failure to follow
Blackfeet tribal law, particularly tax law. (Doc. 1-3.) The claims in the Blackfeet
Nation’s complaint raise no apparent federal questions. The Blackfeet Tribal Court
possesses authority to hear cases of trespass on tribal land and may determine
damages for unauthorized use of tribal land if so established. See Water Wheel, 642
F.3d at 811. Fraudulent misrepresentation and failure to follow Blackfeet tribal law
likewise pose no questions of federal law.
19
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 20 of 25
Given that the record currently before the Court appears to establish that the
BIA cancelled the lease between Eagle Bear and the Blackfeet Nation in 2008,
Plaintiffs do not raise “serious questions going to the merits.” Clear Channel
Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003). Likelihood
of success on the merits thus weighs heavily in favor of the Blackfeet Nation. See
Grand Canyon Skywalk, 715 P.3d at 1205.
Irreparable Harm
A court may grant a preliminary injunction or temporary restraining order to
preserve the status quo pending final determination of an action. See Textile
Unlimited, Inc. v. A. BMH & Co., 240 F.3d 781, 786 (9th Cir. 2001). Plaintiffs argue
that an injunction proves necessary to prevent the Blackfeet Tribal Court from
improperly exercising jurisdiction and from evicting Eagle Bear from Blackfeet
Nation lands. (Doc. 5 at 29-30.) Plaintiffs also argue that the BIA and this Court
would be deprived of rightful authority to make a determination in this case. Id.
Plaintiffs’ argument that the BIA and this Court would be deprived authority
to make a determination proves unavailing. The BIA would lack further authority to
make determinations about the lease that it apparently cancelled in 2008. This Court,
too, would not properly exercise jurisdiction over the case if the BIA cancelled the
lease in 2008 and the Blackfeet Nation’s claims would not arise from the terms of
the cancelled lease.
20
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 21 of 25
The Court agrees that Plaintiffs would suffer irreparable harm if sued in a
court that plainly lacked jurisdiction. The record at this point demonstrates, however,
that the Blackfeet Tribal Court maintains proper jurisdiction. No irreparable harm
befalls a party for being hailed into a court that properly exercises jurisdiction.
Plaintiffs’ concern that they be may be evicted as a result of the tribal court
proceeding remains persuasive as Eagle Bear’s operations would be harmed
irreparably by an eviction. See, e.g., Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush
and Co., Inc., 240 F.3d 832, 841 (9th Cir.2001) (holding that evidence of loss of
customer goodwill supports finding of irreparable harm). The Court thus determines
that Plaintiffs would suffer irreparable harm. This prong weighs in favor of the
Plaintiffs
Balance of Equities
The Court must “balance the interests of all parties and weigh the damage to
each.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009) (internal
quotations omitted). Plaintiffs argue that the potential harm of a wrongful eviction
outweighs the Blackfeet Nation’s potential delay in receipt of alleged damages.
(Doc. 5 at 30-31.) The Blackfeet Nation alleges that Plaintiffs come before the Court
with unclean hands based on their failure to make payments required by the lease.
(Doc. 14 at 28-29.)
21
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 22 of 25
The record before the Court proves insufficient to demonstrate that Plaintiffs
have acted with unclean hands. The record demonstrates that Plaintiffs frequently
have made untimely lease payments to the Blackfeet Nation. (See Doc. 14-1 at 6-8).
This apparent breach of the lease agreement does not necessarily establish unclean
hands sufficient to bar equitable consideration for Plaintiffs. Cf. Jarrow Formulas,
Inc. v. Nutrition Now, Inc., 304 F.3d 829, 841 (9th Cir.2002) (stating that a party has
unclean hands when it is “tainted with inequitableness or bad faith relative to the
matter in which he seeks [equitable] relief.”).
The Court agrees that Plaintiffs would suffer harm caused by an eviction from
Blackfeet Nation land. As to this prong, however, the Court must balance the
potential harm to the Blackfeet Nation that would arise from by granting the
preliminary injunction. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312
(1982). In granting the preliminary injunction, the Court would cause the Blackfeet
Nation to experience delay to begin using its lands for its benefit and to recover
damages for Plaintiffs’ allegedly illegal use of its land. The Blackfeet Nation would
also not be able to prohibit Eagle Bear from removing property on Blackfeet Nation
land. These factors prove significant. After weighing the equitable considerations,
the Court determines that the equities push against each other and that the balance
does not sway toward either Party.
22
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 23 of 25
Public Interest
Plaintiffs argue that the public possesses a strong interest in “protecting
administrative agency authority and promoting judicial efficiency.” (Doc. 5 at 31
(quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992))). Plaintiffs argue
accordingly that recognizing the BIA’s authority and enforcing the administrative
process furthers the public interest. Id. Plaintiffs also argue that enforcing the lease’s
forum selection and arbitration clause promotes the public’s interest in protecting
contractual expectations. Id.
The Court agrees that the public has an interest in protecting the BIA’s
authority and in enforcing the BIA’s administrative procedures. The enforcement of
the BIA’s administrative authority at this stage, however, cuts against Plaintiffs. The
BIA appears to have cancelled the lease in 2008. The BIA would lack subsequent
authority to oversee disputes arising from the lease cancellation. The public has no
interest in enforcing authority that an agency does not possess. The public, similarly,
lacks an interest in enforcing forum selection or arbitration clauses in a terminated
contract, where a lawsuit related to a terminated contract does not arise from the
terms of that contract.
The Blackfeet Nation argues that the public and federal government have an
interest in promoting Indian Nation self-government. (Doc. 14 at 29.) Congress has
demonstrated a policy of supporting tribal self-government and self-determination.
23
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 24 of 25
Nat'l Farmers Union Ins. v. Crow Tribe of Indians, 471 U.S. 845, 856 (1985). The
Ninth Circuit requires “deference to the tribal court as the appropriate court of first
impression to determine its jurisdiction” when jurisdiction is not plainly lacking.
Grand Canyon Skywalk, 715 F.3d at 1199. The Blackfeet Nation has the stronger
argument. The Court recognizes a significant public interest in the principles of
comity with the Blackfeet Tribal Court, where appropriate. This appears to be an
appropriate instance. The public interest prong weighs in favor of the Blackfeet
Nation.
Weighing the Factors
A preliminary injunction represents an extraordinary remedy, that should not
be awarded as a matter of right, but only “upon a clear showing that the plaintiff is
entitled to such relief.” Winter, 555 U.S. at 22. A preliminary injunction proves
inappropriate at this point. Based on the record before the Court, it appears the BIA
cancelled the lease between Eagle Bear and the Blackfeet Nation in 2008. Plaintiffs
thus fail to show likelihood of success on the merits. The irreparable harm prong
admittedly tilts slightly toward Plaintiffs, but the public interest prong proves to be
favorable to the Blackfeet Nation. Given the balance of the preliminary injunction
analysis the Court will deny Plaintiffs’ Motion for Preliminary Injunction. (Doc. 4).
ORDER
Accordingly, IT IS ORDERED that:
24
Case 4:21-cv-00088-BMM Document 27 Filed 11/17/21 Page 25 of 25
• Plaintiffs’ Motion for Preliminary Injunction (Doc. 4) is DENIED.
Dated this 17th day of November, 2021.
25
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?