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General Memorandum 16-014

General Memorandum 16-014
U.S. District Court Orders Tribal Council to Produce Tribal Documents, Says Tribe Waived Immunity through ISDEAA Contract

On February 2, 2016, a Montana federal judge ordered the Fort Belknap Indian Community Council and its members to respond to subpoenas and produce tribal government documents related to the Community's Indian Self-Determination and Education Assistance Act (ISDEAA) contract with the Department of Interior (DOI). U.S. District Judge Brian Morris said that the Council waived its sovereign immunity by entering into the ISDEAA contract, because the ISDEAA contract effectively made the Council members federal officials subject to the Federal Tort Claims Act (FTCA).

The ongoing, underlying case, Terryl T. Matt v. United States of America, was filed by an individual tribal member against the federal government. The complaint alleges that DOI and the Bureau of Indian Affairs (BIA), working with tribal officials, built a road on the plaintiff's property without authorization, causing damage to the plaintiff's property in violation of the FTCA. The subpoenas to the Council requested tribal documents related to road construction and maintenance, rights-of-way, and applications for funding of tribal projects.

The Council argued that it did not waive its sovereign immunity to release the documents sought by the plaintiff, and did not authorize Council members to respond to subpoenas. The Council further argued that its sovereign immunity has been recognized under Ninth Circuit precedent quashing subpoenas of tribal officials to compel production of tribal documents. Although Judge Morris previously agreed with the Council and quashed the subpoenas, he reversed course upon receiving information that an ISDEAA contract was in effect during the time of the alleged events under the complaint. Judge Morris said that the Council opened itself up to the subpoenas by entering into the ISDEAA contract, which effectively made the Council members federal officials.

Section 314 of Public Law 101-512 deems Indian tribes and tribal organizations and their employees to be part of the BIA for purposes of FTCA coverage for claims arising from carrying out an ISDEAA agreement. However, section 314 also deems any civil action or claim brought against a tribe to be an action or claim against the United States. That makes the United States the exclusive defendant for FTCA claims. Thus, the tribe's sovereign immunity from suit should not have been an issue in this case because section 314 deems this case to be a suit against the United States, not the tribe.

Please let us know if we may provide additional information regarding this development.

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Geoff Strommer (gstrommer@hobbsstraus.com)
Michael Willis (mwillis@hobbsstraus.com)
Duke McCloud (dmccloud@hobbsstraus.com)

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