In re: Cody Lee Bendigo

Filing 11

OPINION AND ORDER granting 8 Motion to Dismiss. Signed by U. S. District Judge Roberto A. Lange on 10/15/13. (DJP)

FILED
OCT 15 2013
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION

MICHELLE BRENNER, individually
and as Personal Representative of the
Estate of Tessa Brenner,
Plaintiffs,
vs.
CODY LEE BENDIGO,
Defendant.
CHEYENNE RIVER SIOUX TRIBE,
BUREAU OF INDIAN AFFAIRS,
CHEYENNE RIVER AGENCY,
LARRY BENDIGO, BEAU BENDIGO,
DONNA BENDIGO, and BENDIGO
RANCH,
Garnishees.

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CIV I3-000S-RAL

OPINION AND ORDER
GRANTING MOTION TO
DISMISS

Plaintiff Michelle Brenner ("Brenner") filed an Affidavit for Garnishment ("the
Affidavit"), Doc. 6, seeking to enforce a tribal court judgment in federal district court pursuant
to a state garnishment statute. Doc. 6. Garnishees Beau Bendigo, Larry Bendigo, and Bendigo
Ranch filed a Motion to Dismiss, Doc. 8, arguing that this Court lacks subject matter and
personal jurisdiction to enforce the tribal court judgment, that the Affidavit fails to state a claim
upon which relief can be granted, and that Brenner has not complied with South Dakota Codified
Law ("SDCLI!) 21-18-9. For the reasons stated below, Defendants' Motion to Dismiss is granted.

I.

FACTS
In 2003, Cody Lee Bendigo was convicted in this Court before the Honorable Richard

H. Battey of second-degree murder in the killing of Brenner's daughter, Tessa Brenner. Doc. 9;

United States v. Cody Bendigo, CR. 03-30028-RHB, Docs. 83, 85 (jury instructions and verdict
form finding Cody Bendigo guilty of the second-degree murder of Tessa Brenner). Following
the conviction ofCody Bendigo, Brenner brought a wrongful death action against Cody Bendigo
in Cheyenne River Sioux Tribal Court. Doc. 9; Doc. 1-1. In an Order on Damages dated
December 20, 2006, the Honorable Patrick Lee of the Cheyenne River Sioux Tribal Court
awarded Brenner a $3,000,000.00 judgment against Cody Bendigo. Doc. 1-1.
On April 5, 2013, Brenner filed her Affidavit for a Writ of Garnishment, Doc. 6, in this
Court. She named Cody Lee Bendigo as Defendant and the Cheyenne River Sioux Tribe, Bureau
ofIndian Affairs, Cheyenne River Agency, Larry Bendigo, Beau Bendigo, Donna Bendigo, and
Bendigo Ranch as Garnishees. None of the Garnishees were parties to the suit which gave rise
to the tribal court judgment.
Brenner's Affidavit is brought pursuant to SDCL Chapter 21-18. Doc. 6 at 1. Her
Affidavit states that the Garnishees
jointly and severally are indebted to or have money, property, real
or personal, tangible or intangible in possession or under their/its
control, belonging to said Defendant and said Defendant has not
sufficient property within this state or other property subject to
garnishment under SDCL 21-18 to satisfy the demand of the
Plaintiff ....
Doc. 6 at 1. To satisfy the judgment Brenner first seeks to "garnish and execute upon Indian
Trust land Cody Bendigo has the right to occupy, that is to extinguish his right of occupancy .
. . and or repeal" possible fraudulent transfers made to avoid satisfaction of the judgment. Doc.
9 at 1. Second, Brenner seeks to use this garnishment action either to set aside purported
fraudulent transfers of cattle and ranching equipment from Cody Bendigo to Beau Bendigo, or
to discover evidence of fraudulent transfers and obtain a judgment against Beau Bendigo. Doc.

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9 at 1-2. Third, Brenner seeks to "ascertain what funds or land were transferred to Bendigo
Ranch or to Larry Bendigo or to Donna Bendigo" so she may "obtain judgment against those
garnishees in lieu of the return of those assets and repeal any transfers made to them and or to
obtain judgment against them and execute upon any property owned by them." Doc. 9 at 2. It
does not appear that Brenner has sought first to enforce this judgment in the Cheyenne River
Sioux Tribal Court before attempting the collection proceeding before this Court.
Beau Bendigo is an enrolled member ofthe Cheyenne River Sioux Tribe who lives with
his father, Larry Bendigo, on tribal trust land within the boundaries ofthe Cheyenne River Indian
Reservation. Doc. 8-2. Beau Bendigo's ranch, called Bendigo Ranch, and ranching equipment
are on tribal trust land that he leases from the Cheyenne River Sioux Tribe and the United States
Bureau oflndian Affairs and sit within the confines of the Cheyenne River Indian Reservation.
Doc. 8-2. Thus, it appears that all the property that Brenner seeks to execute upon is either tribal
trust land held in trust by the Bureau of Indian Affairs for the Cheyenne River Sioux Tribe or
assets located on tribal trust property within the Cheyenne River Indian Reservation.

II.

DISCUSSION
Defendants Beau Bendigo, Larry Bendigo, and Bendigo Ranch ("Defendants") have

moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6)
for lack of personal and subject matter jurisdiction and for failure to state a claim upon which
relief can be granted. Doc. 8.

A.

Rule 12(b)(l) Motion to Dismiss for Lack of Subject Matter Jurisdiction

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Brenner does not argue that this Court has diversity of citizenship jurisdiction, Doc. 9, 1
and there is no basis for supplemental or ancillary jurisdiction. 2 Brenner however contends that
this Court has federal question jurisdiction based on the particular facts of this case. Doc. 9 at
2. Brenner argues that because only federal authorities may terminate an Indian's right of
occupancy and she is seeking through this suit to terminate Cody Bendigo's right of occupancy
in certain reservation-based land, then the "bare facts [ofthis case] ... establish federal question
jurisdiction." Doc. 9 at 2. The Garnishees counter that there is no federal question jurisdiction
because Brenner's claim is based on a state statute and does not arise under the Constitution or
any federal statute. Doc. 9; Doc. 10.
Federal Rule of Civil Procedure 12(b)(I) provides for the dismissal of a suit when the
court lacks subject matter jurisdiction. "Federal courts are courts of limited jurisdiction."
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,377 (1994). District courts "possess
only that power authorized by Constitution and statute, . . . which is not to be expanded by
judicial decree." Id. (internal citations omitted). "'[I]t is to be presumed that a cause lies outside
this limited jurisdiction, and the burden ofestablishing the contrary rests upon the party asserting
jurisdiction.'" Dakota, Minnesota & E. R.R. Corp. v. Schieffer, 715 F.3d 712 (8th Cir. 2013)

I Federal courts may have jurisdiction over a garnishment proceeding brought pursuant to
a state statute ifthere is diversity jurisdiction under 28 U.S.C. § 1332. See Monroe v. Roedder,
583 F. Supp. 2d 1031, 1034 (E.D. Mo. 2008).

Federal courts may have ancillary or supplemental jurisdiction over a garnishment
proceeding brought pursuant to a state statute when that proceeding is "ancillary to an original
case or proceeding in that same court" and is "necessary to secure or preserve" ajudgment
entered by that court. Sandlin v. Corporate Interiors Inc., 972 F.2d 1212, 1216 (10th Cir. 1992).
Here, ancillary jurisdiction is not proper because this Court did not preside over the original case
giving rise to the judgment nor did it enter the judgment that Brenner seeks to execute upon; the
Cheyenne River Sioux Tribal Court heard the case and awarded the judgment.
2

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(quoting Kokkonen, 511 U.S. at 377). The district court may dismiss a complaint for lack of
subject matter jurisdiction under a Rule 12(b)(1) facial challenge when the complaint on its face
fails to allege an element necessary for subject matter jurisdiction even with all factual
allegations in the complaint presumed to be true. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.
1993).
Federal district courts have original jurisdiction over civil actions that arise under the
Constitution, laws, or treaties ofthe United States. 28 U.S.C. § 1331. "[W]hether a claim 'arises
under' federal law must be determined by reference to the 'well-pleaded complaint.'" Merrell
Dow Pharms. Inc. v. Thompson, 478 U.S. 804,808 (1986).
This is an original garnishment action brought in federal court pursuant to a state statute
to enforce a tribal court judgment. Doc. 6. An action for a writ of garnishment filed in federal
district court as an independent action does not arise under federal law; it arises under state law.
See Berry v. McLemore, 795 F.2d 452, 456 (5th Cir. 1986) ("First, subject matter jurisdiction
as defined in 28 U.S.C. § 1331, does not exist, because an action for a writ ofgarnishment arises
from state law, not federal law. "). Even when taking all the facts pleaded in the Affidavit as true,
this action does not arise under federal law and federal question jurisdiction is not proper.
Brenner relies on Oneida Indian Nation ofNew York State v. Oneida County, New York,
414 U.S. 661 (1974), for her argument that federal question jurisdiction is proper based on the
facts ofthis case. In Oneida, the Oneida Indian Nation ofNew York State and the Oneida Indian
Nation of Wisconsin sued Oneida and Madison Counties ofNew York in federal court alleging
that those counties violated the Oneida Nation's federally recognized aboriginal right of
occupancy, certain treaties executed between the Oneida Nation and the United States, and a

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federal statute. Id. at 663-65. The Supreme Court of the United States held that each of these
allegations-an alleged violation of the tribe's aboriginal right of occupancy, alleged treaty
violations, and alleged Nonintercourse Act, 25 U.S.c. § 177, violations-raised a federal
question. Id. at 676-78.
Here, there is no basis for federal question jurisdiction as there was in Oneida. Brenner
is not arguing that she has any inherent right of occupancy to this Indian trust land and her
Affidavit is not based on treaties or a federal statute. She is suing under a South Dakota state
garnishment statute, and such a suit does not arise under federal law.
Further, a state garnishment statute should not be used to garnish reservation-based
property in these circumstances. A federally-recognized Indian tribe is a sovereign nation
separate from the state, Bradley v. Deloria, 587 N.W.2d 591, 593 (S.D. 1998), and state
jurisdiction generally does not extend to Indians on reservations and Indian lands because doing
so would "undermine the authority ofthe tribal courts over Reservation affairs and hence would
infringe on the right of the Indians to govern themselves," Williams v. Lee, 358 U.S. 217, 223
(1959). "It is well established that 'state officials have no jurisdiction on Indian reservations
either to serve process on an enrolled Indian or to enforce a state judgment.1tt Bradley, 587
N.W.2d at 593 (quoting Annis v. DeweyCnty. Bank, 335 F. Supp. 2d 133,136 (D.S.D. 1971».
In Joe v. Marcum, 621 F.2d 358 (10th Cir. 1980), the United States Court ofAppeals for
the Tenth Circuit held that a New Mexico state court lacked jurisdiction to enforce a state court
judgment entered pursuant to an off-reservation transaction by garnishing the wages of the
Indian-debtor who lived on the Navajo Reservation and was paid by a reservation-based
business. Id. at 360-61. The Tenth Circuit held that New Mexico lacked jurisdiction in Indian

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country, the Navajo Nation is a sovereign entity with its own court system, and permitting a state
court to garnish on-reservation property to satisfy a state court jUdgment would "ovedook[] the
central and dominant factor" ofpreventing impingement upon the Navajo's tribal sovereignty by
a state garnishment action. Id. at 361-62. Similarly, this Court previously has enjoined South
Dakota state officials from enforcing a state court judgment against an Indian resident of the
Cheyenne River Indian Reservation by using state authority to attach that Indian's Reservation­
based property because South Dakota has "no jurisdiction over a cause of action arising within
Indian Country involving an enrolled Indian." Annis, 335 F. Supp. 2d at 134-36.
Here, the Affidavit, apart from failing to state a federal question, attempts to have this
Court enforce a state statute in Indian Country to enforce a tribal court judgment. A South
Dakota state garnishment statute has no application in Indian Country in these circumstances.
Simply put, a South Dakota garnishment statute does not apply to American Indian property
rights in Indian country, and a garnishment Affidavit filed in federal court does not thereby make
the state statute apply through this Court.
The tribal court judgment that Michelle Brenner seeks to execute upon arose from terribly
sad on-reservation crime-the second degree murder ofTessa Brenner by Cody Bendigo. Tessa
Brenner's mother, Michelle, obtained a judgment from the Cheyenne River Sioux Tribe Tribal
Court. The enforcement ofthat judgment against Reservation-based property appears not to lie
in this Court, at least when the garnishment proceeding, which is "purely statutory," is brought
pursuant to a South Dakota state statute. See Farmers Trust & Sav. Bank v. Bannworth, 289
N.W. 423, 424 (1939). The proper venue to enforce the Tribal Court judgment against tribal
members is in the Tribal Court which issued it. While jurisdiction against the federal agency

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defendant-the United States Department of the Interior, Bureau of Indian Affairs (the
rtBIArt}--might lie in this Court, the garnishment Affidavit does not invoke a federal statute
involving the BIA but a South Dakota statute and leaves unclear why the BIA is named in this
proceeding.
"[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must
dismiss the complaint in its entirety." Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
Brenner's Affidavit for Garnishment is subject to dismissal in its entirety, even though only three
Garnishees have moved for dismissal.

B.

Personal Jurisdiction, Failure to State a Claim, and Failure to Comply with
SDCL § 21-18-9.

Because this Court lacks subject matter jurisdiction, it need not address whether the
Affidavit is subject to dismissal under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6)
and for failure to comply with SDCL § 21-18-9 as well.

III.

CONCLUSION
For the reasons contained herein, it is hereby
ORDERED that Defendant's Motion to Dismiss, Doc. 8, is granted. It is further
ORDERED that Plaintiffs Affidavit for Garnishment, Doc. 6, is dismissed .
.. It..

Dated October E~, 2013.

BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE

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