State of Nevada v. Hicks (January 24, 2000)

* Court: Ninth Circuit

* Jurisdiction: State of Nevada

* Defendant Employee's Job Class: State Game Warden

* Federal District Court: In favor of plaintiff

* Ninth Circuit: In favor of plaintiff

* Issues: Indian Civil Rights Act, jurisdiction between federal courts and Indian tribal courts

State of Nevada Facts

* Hicks was a member of a Paiute Shoshone Tribe of 800 members on a reservation of 8,000 acres in western Nevada.

* Spencer, a state game warden, in August 1990 obtained a search warrant from a Nevada justice court to search Hicks, house for evidence of killing a particular subspecies of big horn sheep; Spencer had the warrant approved by the applicable Indian tribal court; the Indian tribal court, however, limited the warrant to a search only of the exterior premises.

* Spencer, accompanied by a tribal police officer, entered Hicks' premises and removed the mounted head of a big horn sheep of a species which was not protected by Nevada state law.

* In June 1991, Spencer again obtained a warrant, had it approved by the tribal court, and again removed a mounted sheep's head from Hicks' home, with the mounted head again not constituting a violation of state law.

* With respect to the August 1990 and June 1991 searches, Hicks in August 1991 filed a suit for damages in tribal court against Spencer and the Director of the Nevada Department of Wildlife under the Indian Civil rights and under tribal common law.

* The tribal court ruled it possessed jurisdiction over the suit; the intertribal appellate court upheld the tribal court's ruling.

* The defendants then filed a declaratory judgment action in federal district court as to the jurisdiction of the Indian tribal court; the Indian tribal court stayed Hicks, action pending the outcome of the federal case.

* The district court in the declaratory judgment action ruled that the tribal court did possess jurisdiction, that Hicks’ claims were not barred by sovereign immunity, and that defendants' claims of qualified immunity had to be tried in the tribal courts.

* The Ninth Circuit upheld the district court on jurisdiction and qualified immunity but disagreed on the sovereign immunity issue, holding that that issue should also be tried by the tribal court.

State of Nevada Analysis

* The Ninth Circuit first held that the tribal court generally does have jurisdiction over incidents occurring on Indian-owned land. But, amazingly enough, the court also noted that the area of tribal court jurisdiction over civil matters is relatively undeveloped.

* In the 1981 Montana case, the United States Supreme Court held that a tribal court lacked jurisdiction over tribal regulation of hunting and fishing by non-Indians in a river that ran through the reservation (but whose bed was state land).

* The United States Supreme Court in the 1997 Strate case held that a tribal court did not have jurisdiction over an auto accident case brought by an Indian against a non-Indian, where the accident occurred on a federal right-of-way over tribal land.

* The Ninth Circuit also held that the defendants must raise their defense of sovereign immunity before the tribal court.

* As to the defendants' defense of qualified immunity, the Ninth Circuit agreed that the tribal court must rule on this defense first "as a matter of comity". Comity is a federal-court-developed doctrine under which a federal court, although it possesses the authority to exercise jurisdiction over a case, will not exercise jurisdiction out of deference or respect to the other jurisdiction. In this case, the Ninth Circuit is requiring deference to be shown to the tribal court. What is amazing to me is that "no case has yet determined the existence or nature of the qualified immunity available to state officials in tribal court".

* As a bottom line, "[t]he tribal court has civil jurisdiction in this case based on the tribe's right to adjudicate disputes arising out of actions within tribal regulatory authority that take place on Indian land".

Conclusion

As the Fund moves into states with more significant amounts of Indian land, our participants may well encounter civil or criminal exposure in Indian tribal courts. As this case illustrates, the rules of law applicable to those courts is remarkably undeveloped. The Fund may have to play a significant role in the development of these rules.