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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Healy Lake Village v. Mt. McKinley Bank (4/11/2014) sp-6890

Healy Lake Village v. Mt. McKinley Bank (4/11/2014) sp-6890

        Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                 

         corrections@appellate.courts.state.ak.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



HEALY LAKE VILLAGE, d/b/a                          )  

MENDAS CHA~AG TRIBE, a                             )        Supreme Court No. S-14987  

Federally Recognized Indian Tribe,                 )  

                                                   )        Superior Court No. 4FA-12-01800 CI  

                          Appellant,               )  

                                                   )        O P I N I O N  

         v.                                        )  

                                                   )        No. 6890 - April 11, 2014  

MT. McKINLEY BANK and                              )
  

HEALY LAKE TRADITIONAL                             )
  

COUNCIL,                                           )
  

                                                   )
  

                          Appellees.               )
  

                                                   )
  



                 Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                 Fourth Judicial District, Fairbanks, Michael P. McConahy,  

                                                                            

                 Judge.  



                 Appearances:  Michael J. Walleri, Gazewood & Weiner, P.C.,  

                 Fairbanks, for Appellant.  James D. DeWitt, Guess & Rudd,  

                                                                                    

                 P.C.,    Fairbanks,       for   Appellee       Mt.    McKinley        Bank.  

                 Richard  D.  Monkman  and  Samuel  E.  Ennis,  Sonosky,  

                 Chambers,  Sachse,  Miller  &  Munson,  LLP,  Juneau,  for  

                 Appellee Healy Lake Traditional Council.  



                 Before:  Fabe, Chief Justice, Stowers, and Bolger, Justices.  

                 [Winfree and Maassen, Justices, not participating.]  



                 FABE, Chief Justice.  


----------------------- Page 2-----------------------

I.        INTRODUCTION
  



                   Members of Healy Lake Village Tribe who claim to constitute the newly  



                                                 

elected tribal council brought suit in superior court against Mt. McKinley Bank after the  



                                                        

Bank refused to change the signatory authority on the Tribe's accounts to reflect the  



                                                                                 

alleged  leadership  change.    A  second  group  of  tribal  members,  who  also  claim  to  



represent the Tribe based on a competing election, was granted intervention in order to  



contest  the  superior  court's  jurisdiction.    The  superior  court  determined  that  the  



                                                                                                 

fundamental issue in the case was the determination of the legitimate governing body of  



the  Tribe,  which  was  an  internal  self-governance  matter  within  the  Tribe's  retained  



inherent sovereignty.  The superior court dismissed the case for lack of subject matter  



                                                                                        

jurisdiction,  and  the  group  that  brought  the  initial  action  now  appeals.    Because  



                               

determining the real party in interest would have required the superior court to decide  



matters solely within the Tribe's retained inherent sovereignty, we affirm the superior  



court's dismissal of the case for lack of subject matter jurisdiction.  



II.       FACTS AND PROCEEDINGS  



          A.       Tribal Election Dispute  



                                                          

                   Healy  Lake  Village,  also  known  as  the  Mendas  Cha~Ag  Tribe,  is  a  



                                                                                                          1  

                                                                                                             The tribal  

federally recognized Indian tribe with a tribal constitution adopted in 1997. 



constitution provides for the periodic election of a traditional council to serve as the  

                                                                           



governing body of the Tribe, with the First Chief serving as the presiding officer.  A  



tribal election ordinance was adopted in 1998.    Two separate groups each currently  



contend  that  they   are  the  properly  elected  and  legitimate  traditional  council.    The  



          1        Indian Entities Recognized and Eligible To Receive Services From the  



                                                                      

Bureau of Indian Affairs, 77 Fed. Reg. 47868, 47872 (Aug. 10, 2012) (providing a  

current list of federally recognized tribes).  



                                                           -2-                                                        6890  


----------------------- Page 3-----------------------

appellant group is led by Robert "Ray" Fifer, and the appellee group is led by JoAnn  

                                                                              



Polston.  



                              

                    Both the Fifer Group and the Polston Group argue that the election that  



seated the competing group failed to comply with tribal law and regulations.  The Fifer  



                                       

Group alleges a series of actions on the part of JoAnn Polston, beginning as far back as  



2007, that it claims violated the tribal constitution.  In the Fifer Group's version of  



                                                                                                                       

events, JoAnn Polston was elected to the tribal council sometime prior to 2007.  She then  



                                                                              

"removed" the former First Chief, installed herself, and had de facto control of the Tribe  



                                                                        

between 2007 and 2012.  According to the Fifer Group, between 2007 and 2012 no tribal  



                                                                                         

elections  were  held,  despite  the  constitutional  provision  that  calls  for  tribal  council  



                                                                      2  

                                                                           The  tribal  constitution  does  not  state  

elections  to  be  held  the  last  week  of  March. 



                                                                 3 

whether elections must be held each year;  however, it does specify that the term of 



                                                                                  4  

office  for  traditional  council  members  is  two  years.     The  record  does  not  contain  



                                                                                                              

documentary evidence of elections between 2007 and 2012, nor does the Polston Group  



claim that elections took place during that period.  



                                                                                                      

                    The tribal constitution provides for the possibility of tribal courts, but the  



                                                                                                          

Tribe has not established one.  The tribal council does have the power to establish tribal  



          2         Traditional Constitution of the Mendas Cha~Ag Tribe, art. 8,  3:  



                    Section  3.    Traditional  Council  Elections.    Elections  for  

                    Traditional Council positions shall be held the last week in  

                    March in Healy Lake.  The Council shall set the date and  

                                                                 

                    shall  give  at  least  two  (2)  weeks  notice  of  such  elections.  

                    Notice shall be posted in public places in Healy Lake prior to  

                                                                                   

                    such elections.  



          3         Id.  



          4         Id. art. 4,  6.  



                                                               -3-                                                         6890
  


----------------------- Page 4-----------------------

                                                      5 

courts or other judicial bodies,  and the council is given authority to regulate matters  



                                                                                                    6  

                                                                                                       The Fifer Group states that  

such as child custody, domestic relations, and inheritance.  



there is no tribal court, and the Polston Group does not dispute this fact.  The tribal   



constitution provides for the recall of any member of the tribal council and a special   



election upon receipt of a "[a] valid petition requesting such recall signed by at least 50%   



of the qualified voters . . . .           If the Council fails to call a special election to consider the  



recall, the tribal membership may hold a tribal membership meeting to conduct such  



                  7  

                     The Mendas Cha~Ag Tribal Election Ordinance also provides a procedure  

business."                                                                             



for challenging election results:  



                       Section 12.  Challenging Election Results  

                       As   specified   in   the   Constitution,   tribal   members   may  

                                                

                       challenge election results if the terms of the Mendas Cha~Ag  

                                                                                                  

                       Traditional Constitution or the tribal Election Ordinance are  

                       violated.  Such challenge may be done through a petition and  

                                                                                                           

                       election process. A petition must be circulated and signed by  

                                                          

                       at least 50% of qualified tribal voters.  The petition shall state  

                                                                                                              

                       the violation of the Mendas Cha~Ag Constitution or Election  

                                                                       

                       Ordinance.  Once presented to the Council, the Council shall  

                                                                        

                       hold a new election following the procedures outlined in the  

                                                                                  

                       Mendas   Cha~Ag   Constitution   and   the                                  tribal   Election  

                       Ordinance.             If  the  Tribal  Council  fails  to  hold  such  an  

                                                                                       

                       election within 30 days after receiving the petition, the tribal  

                       membership may meet to conduct a new election.  At such a  

                                                                                      

                       meeting, 50% of qualified voters shall constitute a quorum.  



                       In 2011 the Fifer Group circulated a petition calling for new elections,  



which  the Fifer Group  claims was signed  by  over 50%  of the tribal membership  in  

                                                                                                                           



            5          Id. art. 9,  3(j).  



            6          Id. art. 9,  3(m)-(o).  



            7          Id. art. 7,  2.  



                                                                        -4-                                                                 6890  


----------------------- Page 5-----------------------

compliance with the constitutional and election ordinance provisions.  The Fifer Group  

                                                                                                                      



alleges that the tribal council, led by Polston, took no action on the petition, and that on       



April 28, 2012, the tribal membership conducted a tribal election with the assistance and  

                                                                                               



under  the  observation  of  the  Bureau  of  Indian  Affairs  [BIA]  Fairbanks  Agency  



                                                                                                       

Superintendent,  Kathy  Cline,  and  Tribal  Operations  staff  from  the  Tanana  Chiefs  



                                                                             

Conference.  The Fifer Group was elected as the tribal council at the April 28 election.  



                       The Polston Group alleges various irregularities in the April 28 election and  



                                                                                                                   

disputes the Fifer Group's leadership claim.  In her affidavit, JoAnn Polston claims that  



                                                                                                             

the Fifer Group failed to provide notice of the election to many tribal members and to  



follow constitutional requirements for recalling a sitting council.  She asserts that the  



                                                                                                                                 

election dispute is "solely a matter for my Tribe's resolution" and describes an attempt  



to resolve the dispute at a tribal "Talking Circle."  She asserts that the Fifer Group's  



                                            

claim to majority support rests on a disputed definition of tribal membership:  "[the Fifer  



                                                                                                          

Group] disputes the membership of many lineal descendants of original Tribal enrollees.  



Its count of Tribal members is much smaller than actual Tribal membership."  



                                                                                                                             

                       On May 14, 2012, JoAnn Polston issued a notice of elections to be held on  



July 14, 2012, in Fairbanks.  The record contains a certificate and report from a tribal  



election  committee  certifying  that  an  election  was  held  on  July  14  and  that  JoAnn  



Polston was elected as First Chief.  The certificate form contains spaces to insert the  



                                                                                                                               

number of undisputed adult tribal members that were present at the election; these spaces  



                          

are left blank.  The Fifer Group alleges a variety of irregularities and tribal constitutional  



                             

violations in the July 14 election, including disputed issues of tribal membership.  On  



August 23, 2012, the United States Department of Transportation renewed a federal  



                                                                        

transportation funding agreement with the Tribe, and JoAnn Polston signed on behalf of  



the Tribe after informing the Department of the internal dispute.  



                                                                       -5-                                                               6890
  


----------------------- Page 6-----------------------

          B.        Tribal Account Access  



                    The  Mendas  Cha~Ag  Tribe  has  over  $1,000,000  on  deposit  in  various  



                                             

accounts with Mt. McKinley Bank.  The Bank's deposit agreement form for business  



accounts opened by legal entities provides that the Bank "may require the governing  



                                                                                                  

body of the legal entity opening the account to give us a separate authorization telling  



                                                     

us who is authorized to act on its behalf.  We will honor the authorization until we  



                                                                            

actually receive written notice of a change from the governing body of the legal entity."  



Most of the tribal accounts provide for single signatory authority.  JoAnn Polston has  



been a signatory on the accounts since 2005.  



                                                                                                      

                    After the April 28 election, the Fifer Group informed the Bank that the  



governing  body  of  the  Tribe  had  changed  and  sought  to  gain  access  to  the  tribal  



                                

accounts.  On  April  30, 2012, Kathy Cline, the BIA Superintendent, sent a letter to  



                                                                                                

Mt. McKinley Bank informing the Bank that she "had official oversight of the 2012  



                                                                                        

Election for the Healy Lake tribal membership on April 28, 2012 here in Fairbanks and  



certify its validity.  The Bureau of Indian Affairs lawfully recognizes the following  



elected members [the Fifer Group] to conduct official business on behalf of the Healy  



Lake Traditional Council."  



                                                                                                               

                    On May 1, 2012, Cline rescinded her previous letter: "[p]lease [accept] my  



apologies but I am rescinding my letter dated April 30, 2012.  The Bureau of Indian  



                                                                                                           

Affairs does not have the authority to certify a tribal election."  On the same day, the  



                                                                                                          

attorney for the Polston Group sent a letter to the Bank offering his legal opinion that the  



Fifer Group had no legal authority to act on behalf of the Tribe and requesting that the  



Bank return full signatory authority to JoAnn Polston.  He asserted that the Polston  



                                                                                               

Group remained the current tribal leaders and retained the legal authority to control the  



                                                     

tribal bank accounts.  On May 7 the attorney for the Fifer Group sent a letter to the Bank  



                                                                                        

reasserting  the  authority  of  the  Fifer  Group,  alleging  improper  accounting  and  



                                                             -6-                                                        6890
  


----------------------- Page 7-----------------------

                                                                                                        

misappropriation of tribal funds by JoAnn Polston, and requesting that the Bank freeze  



the  tribal  accounts  until  the  dispute  could  be  resolved  or  a  receiver  appointed.    On  



                                                                                                                  

May  11,  2012,  the  Bank  responded  to  the  Fifer  Group  and  informed  them  that  the  



accounts could not be frozen until the Bank was indemnified or received a court order.  



The Bank suggested that the Fifer Group take appropriate action through the Alaska  



Court System.  



                   The Bank referred the Fifer Group to AS 06.05.145, which it believed  

pertained  to  conflicting  claims  of  account  ownership  and  signature  authority.8                                  On  



                                                                                     

May 18, 2012,  Ray Fifer filed an affidavit with the Bank pursuant to AS 06.05.145 to  



put  the  Bank  on  notice  that  the  funds  on  deposit  were  held  subject  to  fiduciary  



          8        AS 06.05.145 provides:  



                   Adverse claim to a bank deposit. Notice to a bank of an  

                   adverse claim to a deposit standing on its books to the credit  

                                                                                          

                   of a person is ineffective unless the adverse claimant procures  

                        

                   a restraining order, injunction or other appropriate process  

                   against the bank from a court in a cause where the person to  

                   whose credit the deposit stands is made a party or executes to  

                   the bank in form and with sureties acceptable to it a bond,  

                                  

                   indemnifying the bank from any liability, loss, damage, costs  

                                                                   

                   and expenses on account of the payment of the adverse claim  

                                             

                   or the dishonor of the check or other order of the person to  

                                            

                   whose credit the deposit stands on the books of the bank.  

                   This section does not apply where the person to whose credit  

                                              

                   the deposit stands is a fiduciary for the adverse claimant, and  

                                                     

                   the facts constituting that relationship and the facts showing  

                                                          

                   a  reasonable  belief  on  the  part  of  the  claimant  that  the  

                   fiduciary is about to misappropriate the deposit are made to  

                   appear by the affidavit of the claimant.  



                                                             -7-                                                      6890
  


----------------------- Page 8-----------------------

obligations owed to the Tribe and its members and that Ray Fifer had reason to believe  



                                                                                        9  

that JoAnn Polston intended to misappropriate the funds.    



           C.        Superior Court Proceedings  



                                                                            

                     On June 6, 2012, the Fifer Group  filed a petition for declaratory relief  



                                                  

against Mt. McKinley Bank to determine the party authorized to act on behalf of the  



Tribe and access tribal accounts.  The petition did not name the Polston Group as a  



                                                      

defendant.  On July 25 the Bank answered and moved to dismiss pursuant to Alaska  



                                                                                                       

Civil Rules 12(b)(7) and 19 for failure to join the Polston Group as an indispensable  



party.  The motion detailed the risk of inconsistent judgments if the Polston Group later  



filed suit.  It also set out the Bank's position that "[t]he dispute here is really about who  



                                                      

controls and is the control group for the Tribe.  It is a dispute over which the Tribe  



                                                                                               

retains its sovereign rights and this court lacks jurisdiction."  The Bank's motion stated  



                                                       

that "once the Tribe, the dissenting group and the incumbent group, resolve this dispute  



                                                                                       

regarding control, then the Bank will honor the outcome, including any global settlement  



                                                       

signed by all the interested persons or a court order identifying who may speak on behalf  



of the Tribe."  



                                                                                                                      

                     On July 31 the Polston Group applied for a limited intervention and moved  



                 

to dismiss the action for failure to join indispensable parties and for lack of subject matter  



                                                                              

jurisdiction.  The Bank joined these motions.  The Polston Group asserted that the Tribe  



                                                                                                               

did not waive sovereign immunity by this limited intervention. The Fifer Group opposed  



the motion to dismiss and requested a continuance pursuant to Alaska Civil Rule 56(f)  



in order to conduct discovery on a variety of matters, including the amount on deposit  



with the Bank, the source of the funding, government restrictions on the funding, the  



           9  

                                 

                     See id.  



                                                                 -8-                                                             6890  


----------------------- Page 9-----------------------

                                                                              

terms and conditions of the depository agreements, and relevant waivers of sovereign  



immunity that may exist.  



                                                                              

                    On August 16 the superior court held a hearing and subsequently issued an  



                                                                                     

order granting the Polston Group's motion to intervene.  The superior court concluded  



                                                                                             

that because the Polston Group had been granted intervention, the Bank's Rule 12(b)(7)  



                                                                       

motion was moot, and the court would consider the motion to dismiss as a Rule 12(b)(1)  



motion only.  The court determined that "[i]n the final analysis the jurisdiction of this  



court to proceed is the threshold issue."  



                    The court also rejected the Fifer Group's argument that because the Bank's  



motion included exhibits outside of the pleadings, it must therefore be converted to a  



                                                                                                            

motion for summary judgment.  The court reasoned that a Rule 12(b)(1) motion, unlike  



                                                                                                

a Rule 12(b)(6) motion, allowed the court to consider materials outside the pleadings.  



The  court  therefore  denied  the  Fifer  Group's  request  for  Rule  56(f)  discovery  and  



                                                     

considered the documents, letters, and affidavits that the parties had attached to their  



motions.  



                                                                                 

                    On October 16, 2012, the superior court conducted oral argument, and on  



November 6 granted the Rule 12(b)(1) motion to dismiss.  The superior court's order  



reviewed federal and state case law from other jurisdictions as well as several Alaska  



decisions.    From  this  review  the  superior  court  concluded  that  "[a]  district  court  



oversteps its boundaries of jurisdiction, and acts without authority, where it attempts to  



interpret  a  tribal  constitution  and  bylaws,  and  to  address  the  merits  of  an  election  



dispute."    The  superior  court  acknowledged  that  some  matters  are  outside  of  tribal  



                                                  

jurisdiction and that there is no dispute that a tribe "can access state courts for relief  



                                                                                                             

against a bank doing business in Alaska."  But "[w]here a district court must initially  



                                                                                          

resolve an underlying intra-tribal dispute and determine the rightful governing body of  



                        

the  tribe  .  .  .  in  order  to  subsequently  be  able  to  address  a  question  of  law  that  is  



                                                              -9-                                                        6890
  


----------------------- Page 10-----------------------

potentially  outside  the  scope  of  tribal  jurisdiction[,]  that  court  lacks  jurisdiction  to  



                                                           

address such matters and to make such a determination."  The superior court treated its  



subject matter jurisdiction as a threshold issue and did not reach the Polston Group's  



                                                                                       

sovereign immunity arguments or the Fifer Group's comity arguments, reasoning "[t]his  



court  does  not  reach  an  issue  of  comity  unless  and  until  issues  of  subject  matter  



jurisdiction are resolved."  The superior court concluded:  



                    This claim is really about who controls the tribe.  The court  

                    finds that determining who controls the tribe is an internal  

                    function involving tribal membership and domestic affairs  

                                                                     

                    and lies within a tribe's retained inherent sovereign powers.  

                                                     

                    The  court  does  not  have  subject  matter  jurisdiction  to  

                                                          

                    determine who is the real party in interest.  The Fifer Group's  

                    factual arguments regarding the merits of the Polston Group's  

                    election cannot be decided by this court.  



                    The Fifer Group now appeals the superior court's dismissal of its suit for  

                                                                                                             



lack  of  subject  matter  jurisdiction  as  well  as  its  rulings  on  summary  judgment  and  

                                                                                                           



discovery.   



III.      STANDARD OF REVIEW  



                    Generally, "[w]e review a trial court's procedural decisions for abuse of  

                                                                                               

discretion,"10                                                                               11  

                    including the denial of a Civil Rule 56(f) motion.                            



                                         

                    The superior court dismissed the Fifer Group's action for lack of subject  



                             

matter jurisdiction under Civil Rule 12(b)(1).  "We review de novo a superior court's  



          10        Childs v. Childs, 310 P.3d 955, 958 (Alaska 2013) (citing                              Brotherton v.  



 Warner, 240 P.3d 1225, 1228 (Alaska 2010)).  



          11        Parson v. Marathon Oil Co. , 960 P.2d 615, 618  (Alaska 1998) (citing  

                                                                                               

 Gamble v. Northstore P'ship, 907 P.2d 477, 485 (Alaska 1995)).  



                                                             -10-                                                          6890  


----------------------- Page 11-----------------------

                                                                                                         12  

                                                      

decision to dismiss a complaint for lack of subject matter jurisdiction."                                    "In exercising  



                                                                     

our independent judgment, we will adopt the rule of law that is most persuasive in light  

of precedent, reason, and policy."13  



IV.	      DISCUSSION  



          A.	       The Superior Court Did Not Commit Reversible Error By Treating  

                                                                                                               

                    The Motion To Dismiss As A Rule 12(b)(1) Motion Or By Denying The  

                                                                                                          

                    Fifer   Group's   Civil   Rule   56(f)   Motion   To   Conduct   Additional  

                                                        

                    Discovery.  



                    On July 25, 2012, the Bank answered the Fifer Group's complaint and  

                                                  



moved to dismiss pursuant to Alaska Rules of Civil Procedure 12(b)(7) and 19.  The  

                                               



Polston Group moved to intervene and moved for the superior court to dismiss on the  



                                                                    

basis of Civil Rule 12(b)(1) as well as Rules 12(b)(7) and 19, adding the argument that  



                                         

subject matter jurisdiction was lacking because the matter involved a question of tribal  



                                                                                                       

self-governance.  The superior court considered documents outside of the pleadings to  



                                                            

determine whether it should dismiss the action for lack of subject matter jurisdiction, and  



                                   

dismissed the case on that basis.  The Fifer Group contends that the consideration of  



material outside of the pleadings necessitated the conversion of the motion into a motion  



for summary judgment.  The Fifer Group now appeals the superior court's decision not  



to convert the motion to dismiss into a motion for summary judgment as well as the  



denial of its Rule 56(f) motion. 



                                                                                  

                     The Fifer Group cites Price v. Unisea, Inc ., in which we explained that  



                                                                                                                    

"[w]hen materials outside the pleadings are submitted with regard to a motion to dismiss  



          12        Ruckle v. Anchorage Sch. Dist. , 85 P.3d 1030, 1033 (Alaska 2004) (citing   



Andrews v. Alaska Operating Eng'rs-Emp'rs Training Trust Fund , 871 P.2d 1142, 1144   

(Alaska 1994)).  



          13  

                                                                                      

                    John v. Baker , 982 P.2d 738, 744 (Alaska 1999) (citing Guin v. Ha, 591  

P.2d 1281, 1284 n.6 (Alaska 1979)).  



                                                              -11-	                                                        6890
  


----------------------- Page 12-----------------------

                                                                                                          

[under Rule 12(b)(6)], the superior court must either explicitly exclude the materials or  



             

convert  the  motion  into  one  for  summary  judgment  under  Alaska  Rule  of  Civil  



                      14                                                                    15 

Procedure 56."             But Price addressed only a 12(b)(6) motion.     



                                                                                                

                    The superior court expressly stated in its dismissal that it was treating the  



"motion  to  dismiss  as  a  12(b)(1)  motion  only"  as  a  response  to  the  Fifer  Group's  



                                                                                                           

conversion  argument.                 The  superior  court  cited  federal  precedent  allowing  for  



consideration of evidence outside the pleadings when deciding a 12(b)(1) motion without  



thereby converting that motion into one for summary judgment.  Indeed, the federal  



                                                                                16 

                                                                                    Both the Bank and the Polston  

circuit court precedent for this proposition is extensive. 



Group urge this court to adopt the federal precedent and hold that Rule 56(f) does not  



                                                          

extend to Rule 12(b)(1) motions.  But for the purposes of this case, we do not need to  



reach the question whether consideration of materials outside the pleadings mandates  



          14        289 P.3d 914, 918 (Alaska 2012) (quoting                     Kaiser v. Umialik Ins. , 108 P.3d  



876, 879 (Alaska 2005)) (alteration in original).   



          15        Id.  The text of Rule 12 also only directly addresses conversion of 12(b)(6)  

                                                                                               

motions:  



                    If, on a motion asserting the defense numbered (6) to dismiss  

                                                                                         

                   for failure of the pleading to state a claim upon which relief  

                                                                          

                    can be granted, matters outside the pleading are presented to  

                                                                        

                    and not excluded by the court, the motion shall be treated as  

                                                                                          

                    one for summary judgment and disposed of as provided in  

                    Rule 56 . . . .  



(Emphasis added.)  



          16        See, e.g., Taylor v. KeyCorp, 680 F.3d 609, 612 (6th Cir. 2012); Muscogee  



                                                                                                 

(Creek) Nation v. Oklahoma Tax Comm'n, 611 F.3d 1222, 1227 n.1 (10th Cir. 2010);  

                                  

Rodriguez v. Christus Spohn Health Sys. Corp. , 628 F.3d 731, 734 (5th Cir. 2010); Safe  

Air for Everyone v. Meyer , 373 F.3d 1035, 1038-39 (9th Cir. 2004).  



                                                             -12-                                                       6890
  


----------------------- Page 13-----------------------

conversion  of  a  12(b)(1)  motion  into  a  motion  for   summary  judgment  because  



conversion would not have altered the jurisdictional analysis.   



                                                                                     

                     In addressing the conversion requirement of Rule 12(b), we have held that  



"a reviewing court has three available options when it finds that the trial court has not  

complied with the conversion requirements of Civil Rule 12(b)":17  



                                                                                           

                    One alternative calls for reversal of the superior court for its  

                    failure to comply with the requirements of Civil Rule 12(b)  

                    and     a   remand        for    proper       consideration         as    either     a  

                    Rule  12(b)(6)  dismissal  motion  with  the  outside  matters  

                    expressly  excluded  or  a  Rule  56  motion  for  summary  

                                                                                       

                   judgment  with  the  attendant  requirements  of  that  rule.    A  

                    second option is to review the superior court's decision as a  

                                          

                    Rule 12(b)(6) dismissal, treating that decision as if a motion  

                                                                           

                    for dismissal had been granted after exclusion of the outside  

                                                                         

                    materials as required.  A third option is to review the superior  

                                                                             

                    court's decision as an entry of summary judgment, treating  

                    that decision as if summary judgment had been granted after  

                                               

                    the necessary conversion of the Rule 12(b)(6) motion into  

                          

                                                            [18] 

                    one for summary judgment.  



                                                                                  

                    Even if we assume that the superior court should have treated the motion  



                                                                     

to dismiss as a motion for summary judgment under the third option, the jurisdictional  



                                                              

analysis would be the same.  The superior court's dismissal in this case was based on the  



existence of an internal tribal election and membership dispute, and the superior court  



                                                                              

already had before it the relevant information from the parties regarding the material  



jurisdictional  issues,  including  affidavits,  memoranda,  the  depository  agreements,  



election notices, and other documents.  None of the discovery requested by the Fifer  



Group would have led to information negating the existence of a tribal election dispute  



          17        Demmert v. Kootznoowoo, Inc. , 960 P.2d 606, 612 (Alaska 1998).  



          18        Id. (quoting Martin v. Mears , 602 P.2d 421, 427 (Alaska 1979)).  



                                                            -13-                                                          6890  


----------------------- Page 14-----------------------

                                                        

 and thus would not have altered the jurisdictional analysis even in the summary judgment  



                   19  

 context. 



                                                                                                                                                

                               We  have  upheld  a  superior  court's  denial  of discovery requests after  



                                                                                 

 conversion of a Rule 12(b) motion into a summary judgment motion when the requests  



                                                                                                                                                           

were overly broad and not designed to lead to information relevant to the jurisdictional  



             20  

 issue.            The superior court in this case had before it all the information relevant to the  



                                                                                                                                                                   

jurisdictional analysis after extensive submissions from all the parties, and the superior  



                                                                                                                                                

 court's denial of the Fifer Group's Rule 56(f) motion did not prevent the Fifer Group  



                                                                                                                                                                      

 from presenting all information available on the jurisdictional question.  Because none  



                                                                                                                                       

 of the requested discovery would have led to information relevant to the jurisdictional  



                    21  

                                                          

 analysis,                the  superior  court  did  not  err  by  treating  the  motion  to  dismiss  as  a  



                19             The Fifer Group requested discovery from the Bank on "1) the amount on                                     



 deposit with the Bank, 2) the source of such funding, 3) the federal and state restrictions             

 on such funding, 4) the terms and conditions of the bank depository agreements, and [5])   

relevant waivers of sovereign immunity that may exist."  The first four items have no   

relevance to the question of state court subject matter jurisdiction over a tribal election                                                                            

 dispute.  And the issue of the waiver of sovereign immunity is secondary to the question                                                     

 of which of the competing tribal councils is entitled to invoke sovereign immunity.                                                                                                            As  

 discussed below, resolution of the legitimacy of the competing tribal councils entails an  

 impermissible   inquiry   into   matters   solely   within   the   Tribe's   retained   inherent  

 sovereignty.  



                20             Price , 289 P.3d at 923 ("The superior court did not err in holding that  



                                                                           

 Price's discovery requests were too broad and were not designed to lead to information  

 on the immunity issue.").  



                21  

                                                                                                                                               

                               In the federal courts, the discovery requested by the Fifer Group has been  

                                                                                                                                 

 characterized as "jurisdictional discovery" and its denial has been upheld in "the absence  

                                                                                                                                              

 of any specific indication from the [plaintiffs] regarding 'what facts additional discovery  

                                                                                                                                                                                

 could  produce  that  would  affect  [the  court's]  jurisdictional  analysis.'  "  Cheyenne  

Arapaho Tribes of Okla. v. United States , 558 F.3d 592, 596 (D.C. Cir. 2009) (first  

                                                                                                                                                                        (continued...)  



                                                                                               -14-                                                                                        6890
  


----------------------- Page 15-----------------------

                                                                                      

Rule 12(b)(1) motion or abuse its discretion by denying the Fifer Group's Rule 56(f)  

motion.22  



                                                                                                                   

            B.	         The Superior Court Correctly Determined That Finding Jurisdiction  

                        In This Case Necessitated An Inquiry Into A Tribal Self-Governance  

                        Dispute.  



                                                                                                 

                        In dismissing the case for lack of subject matter jurisdiction, the superior  



                                                                                                                                

court concluded that "there is no dispute that the real, fundamental, and initial issue to  



resolve is who is the real party in interest to prosecute the claim against the bank" and  



                                                                                                                   

that determining the real party in interest would require reaching the merits of the Fifer  



Group's factual and tribal law arguments about the legitimacy of the two elections.  



                                                                                                                

                        The Fifer Group attempts to avoid this conclusion by arguing that the case  



                                                                      

does not involve an election dispute but is simply a matter of the Bank's obligation under  



their  depository  agreement  to  change  account  signatories  when  the  Tribe's  officials  



                                                                                                                         

change.  The Fifer Group also argues that the identity of the Tribe's current officials is  



at best a collateral issue raised by the Bank and the Polston Group.  The Fifer Group  



                                              

maintains that it does not seek to disturb the finality of tribal elections.  But to achieve  



the relief it seeks, the Fifer Group "ask[s] the Court to give full force and effect to a tribal  



                                                                                                        

election which changed leadership in a manner prescribed by the Tribal Constitution."  



                                                                                                   

And it is this request, which is at the heart of the dispute with the Bank, that presents the  



jurisdictional problem.  



                                                                                                                     

                        The Bank and the Polston Group correctly identify the centrality of the  



dispute over the legitimacy of the competing tribal council elections.  The Bank notes  



            21(...continued)  



alteration added) (quoting Mwani v. bin Laden , 417 F.3d 1, 17 (D.C. Cir. 2005)).  



            22          Price , 289 P.3d at 923 ("Since further discovery would not have changed       



the superior court's immunity analysis, it was properly denied by the superior court.");         

see also Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).  



                                                                        -15-	                                                                  6890
  


----------------------- Page 16-----------------------

that the Fifer Group and the Polston Group offer conflicting facts  about who is the  



legitimate tribal council and conflicting interpretations of the facts and of tribal rules.  



                                                                                                         

The Polston Group argues that to determine the "valid leadership" of the Tribe, the state  



          

court  would  be  required  "to  perform  a  culturally-specific  analysis  of  the  interplay  



                                 

between the Tribe's Traditional Constitution, the Tribe's oral history, tribal tradition and  



                         23  

tribal customs."             



                     In response, the Fifer Group argues extensively that under tribal law the  



                                                                                                   

Polston Group has no colorable claim to tribal authority.  The Fifer Group's arguments  



                                                                             

are explicitly based almost entirely on tribal law; specifically the Fifer Group argues that  



the Polston Group violated tribal law and that under tribal law the Fifer Group is the  



legitimate tribal council.  The Fifer Group itself states that there is "a material factual  



                                                                                       

dispute over whether the Tribe, under the direction of its duly elected governing body,  



has filed suit against the Bank."  The Fifer Group acknowledges that JoAnn Polston had  



                                                                                                                    

leadership authority over the Tribe and signatory authority over the tribal accounts prior  



to the April election.   



                     The  Fifer  Group  is  asking  the  state  court  to  force  the  Bank  to  change  



                                                                                                          

signatory authority, which would require the court to evaluate the alleged violations of  



           23        In a footnote, the Polston Group details issues that it believes the superior         



court would be required to determine, including:  



                     Tribal custom concerning timing and frequency of elections,   

                     interpretation  of  the  Tribe's  Traditional  Constitution,  the  

                     membership  status  of  a  large  number  of  individuals  who  

                     claim Tribal membership, whether these Tribal members are  

                                                                

                     direct or culturally adopted descendants of those on the Tribal  

                                                                                                  

                     base roll, which elders have knowledge of Tribal custom and  

                                                                                                   

                     law and what do to [sic] if they disagree, and whether Tribal  

                                                             

                     law  allows  meetings  and  elections  in  Fairbanks  in  the  

                                                                  

                     summer, rather than at Healy Lake during break up.   



                                                                 -16-                                                            6890
  


----------------------- Page 17-----------------------

tribal law and contested definitions of tribal membership.  Therefore, we conclude that  



                                                         

the superior court was correct in its view that it could not have resolved the Fifer Group's  



claim against the Bank without an inquiry into the legitimacy of the competing tribal  



elections.  



                                                                                            

          C.	      The  Superior  Court  Properly  Dismissed  This  Case  For  Lack  Of  

                   Subject Matter Jurisdiction Because Determining The Real Party In  

                   Interest  Would  Have  Required  The  Superior  Court  To  Decide  

                   Matters Solely Within The Tribe's Retained Inherent Sovereignty.  



                   1.	      General jurisdictional framework  



                   The Fifer Group argues that jurisdiction in this case is a straightforward  



                                                                                   

matter of state courts having jurisdiction over a claim by a tribe against a non-Indian  



                                                                                                                

bank that arose outside of Indian country.  The Fifer Group cites our decision in John v.  

Baker24 as establishing the general framework for analyzing state court jurisdiction over  



internal tribal matters.  The Fifer Group focuses specifically on our holding in John v.  



Baker  that  Alaska  state  courts  retain  concurrent  jurisdiction  over  the  type  of  child  



             

custody disputes at issue in that case, and quotes our statement that "[o]utside Indian  



                                                                                          

country, all disputes arising within the State of Alaska, whether tribal or not, are within  



                                            25  

                                                 The Fifer Group reasons that because its claim arose  

the state's general jurisdiction."                                                        



outside of Indian country and concerns an Indian plaintiff and non-Indian defendant, the  



state courts have jurisdiction.  



                                                  

                   Neither the Bank nor the Polston Group disputes that the state court would  



have jurisdiction over a claim of the Tribe against the Bank if there were no dispute  



about  tribal  elections  and  legitimate  tribal  authority.    But  the  Bank  argues  that  the  



                                                          

language in John v. Baker quoted by the Fifer Group must be understood in the specific  



         24        982 P.2d 738 (Alaska 1999).  



         25        Id. at 759.  



                                                          -17-                                                       6890  


----------------------- Page 18-----------------------

context of that case, which we articulated as "the existence of concurrent state-tribal  



                                                                          

jurisdiction over tribal family law disputes when one or both parents do not reside on  



                          26  

reservation land."               



                    In  John  v.  Baker ,  we  began  our  analysis  of  tribal  sovereign  power  to  



                                                                                                              

regulate internal affairs with "the established principle under federal law that 'Indian  



tribes  retain  those  fundamental  attributes  of  sovereignty  .  .  .  which  have  not  been  



                                                                                                                       27 

                                                                                                                          We  

divested by Congress or by necessary implication of the tribe's dependent status.' " 



                                                                                                         

recognized  that modern tribal sovereignty "exists only at the sufferance of Congress and  



                                                    

is subject to complete defeasance.  But until Congress acts, . . . Indian tribes still possess  



those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a  



                                                               28  

                                                                          

necessary result of their dependent status."                       We characterized United States Supreme  



                                                                                                     

Court  precedent as articulating "a core set of sovereign powers that remain intact even  



                                                                                   

though Indian nations are dependent under federal law; in particular, internal functions  



involving tribal membership and domestic affairs lie within a tribe's retained inherent  



                             29  

                                                                                       

sovereign powers."               We also reiterated a principle found in an earlier Alaska case that  



                                                               

"Indian affairs are subject to state law but only to the extent that Congress explicitly so  

provides."30  



          26        Id. at 759-60.  



          27        Id. at 751 (omission in original) (quoting Merrion v. Jicarilla Apache Tribe ,  



455 U.S. 130, 146 (1982)).  



          28        Id. (omission in original) (quoting United States v. Wheeler, 435 U.S. 313,   



323 (1978)).  



          29        Id.  (citing  Wheeler, 435 U.S. at 326; Montana v. United States , 450 U.S.  



544, 564 (1981)).  



          30        Id. (quoting  Ollestead v. Native Vill. of Tyonek, 560 P.2d 31, 33 (Alaska  



                                                                                                           (continued...)  



                                                             -18-                                                       6890
  


----------------------- Page 19-----------------------

                    In John v. Baker , we discussed the "dual nature" of Indian sovereignty,  

extending beyond territorial control31 to issues of membership and self-governance.32  



                                                                                                        

We reaffirmed that the "key inquiry" according to the United States Supreme Court  is  



                    not whether the tribe is located in Indian country, but rather  

                                                                                                

                    whether the tribe needs jurisdiction over a given context to  

                    secure tribal self-governance:  "If state-court jurisdiction over  

                                                                       

                    Indians . . . would interfere with tribal sovereignty and self- 

                    government,   the   state   courts   are   generally   divested   of  

                                                                               [33] 

                    jurisdiction as a matter of federal law."  



                    In  finding  concurrent  jurisdiction,  we  quoted  approvingly  a  Montana  



decision that noted "that recognition of concurrent jurisdiction reflected the delicate  



balance under federal law of a state court's 'obligation to respect the sovereignty of  



Indian tribes in relation to [the court's] responsibility to uphold and enforce the laws of  



                  34  

                                                                                 

this state.' "        As the Polston Group recognizes, state court jurisdiction was appropriate  



          30(...continued)  



 1977)).  



          31        This  court  has  held  that  "[a]lthough  Alaska  no  longer  contains  Indian  



country, its Native villages 'retain those fundamental attributes of sovereignty . . . which  

                                                                                                   

have not been divested by Congress or by necessary implication of the tribe's dependent  

                                                                                                          

status.' "  Runyon ex rel. B.R. v. Ass'n of Vill. Council Presidents , 84 P.3d 437, 439  

                                                                                                             

(Alaska 2004) (quoting John , 982 P.2d at 751).  One of these attributes is "the common- 

                                                                                    

law immunity from suit traditionally enjoyed by sovereign powers" which would seem  

                                                                          

to  be  at  least  one  important  limiting  factor  for  the  expansive  reach  of  state  court  

jurisdiction argued for by the Fifer Group.  Id. (quoting Santa Clara Pueblo v. Martinez,  

                                        

436 U.S. 49, 58 (1978)).  



          32        John , 982 P.2d at 756.  



          33  

                                                                                

                    Id. (omission in original) (quoting Iowa Mut. Ins. Co. v. LaPlante , 480 U.S.  

9, 15 (1987)).  



          34  

                                                                                             

                    Id. at 760 (alteration in original) (quoting In re Marriage of Skillen , 956  

                                                                                                              (continued...)  



                                                              -19-                                                         6890
  


----------------------- Page 20-----------------------

in the child custody dispute at issue in John v. Baker because it furthered  the state and  

                                                                                                     



federal laws designed to protect Alaska Native children without interfering with tribal  



self-governance.  And unlike in the child custody context, the State of Alaska has no  



                                                                                

cognizable interest in determining the outcome of this tribal leadership dispute in place  



                                                           35  

of a determination by the Tribe itself.                         Instead this case involves the identification of  



                                                                                                                   

tribal members and compliance with tribal election procedures which the Polston Group  



and the Bank argue are issues reserved exclusively to the Tribe.  We agree.  



                                                                                               

                     Because the state has no interest in determining the outcome of this internal  



                                      

tribal dispute, the tribal election and membership dispute in this case remains within the  

"tribe's retained inherent sovereign powers."36  We therefore conclude that the state court  



                                                                                                           

lacks subject matter jurisdiction in this case because the state lacks an interest, and the  



               

exercise of jurisdiction would require the state court to apply tribal law to determine the  



outcome of a tribal election dispute and issues of tribal membership.  



                     2.	        Federal and state precedent involving jurisdiction over tribal  

                                election disputes  



                                                                                              

                     Federal  and  state  precedent  emphasizes  the  need  to  respect  tribal  self- 



                                                                                         

governance when resolving a claim that entails review of tribal elections.  This precedent  



supports our conclusion that the superior court's dismissal for lack of subject matter  



jurisdiction was proper.  



           34(...continued)  



P.2d 1, 18 (Mont. 1998)).  



           35        The Bank adds that this case does not involve issues of child custody, state         



taxation, or even the state law of contracts and banking.   



           36        John , 982 P.2d at 751 (citing United States v. Wheeler, 435 U.S. 313, 326  

                                                  

(1978); Montana v. United States , 450 U.S. 544, 564 (1981)).  



                                                                 -20-	                                                          6890
  


----------------------- Page 21-----------------------

                                                    

                     The Eighth Circuit reached a similar conclusion in a series of decisions  



                                                                                                            37  

arising from an election dispute with facts similar to the current case.                                         In 2003 two  



                                                                                                

groups were competing for control of the tribal government of the Sac and Fox Tribe of  



                                                                                    38  

                                                                                        One group had been in power  

Mississippi in Iowa, a federally recognized Indian tribe. 



prior to 2003, and an opposition group submitted petitions challenging the incumbent  



                            39  

                                                                                                              

group's  authority.                According  to  the  tribal  constitution,  receipt  of  such  petitions  



                                                                                                                        40  

                                                                                                                             Like  

mandated a special election, but the incumbent group did not call an election. 



                                                                                                           

Healy Lake Village, the Sac and Fox Tribe did not have a tribal court, so the petitioning  



                         

tribal members had no legal recourse or tribal remedy available other than appeal to the  



                                                            41  

                                                                   The  opposition  group  formed  a  new  tribal  

incumbent  group,  which  was  rejected. 

government and gained control of some of the tribe's assets, including the tribal casino.42  

                                                                                                                



The opposition group notified the banks that held gaming proceeds that it was the only  

                                                               



                                                                                            43  

group with authority to act on behalf of the tribal accounts.                                   Faced with uncertainty  

           



over which group possessed authority to act on behalf of the tribe, the banks froze the  

                                                                                                             



          37        Attorney's  Process  &  Investigation  Servs.,  Inc.  v.  Sac  &  Fox  Tribe  of  



Mississippi in Iowa , 609 F.3d 927 (8th Cir. 2010); Sac & Fox Tribe of the Mississippi in  

                                                                                                       

Iowa, Election Bd. v. Bureau of Indian Affairs , 439 F.3d 832 (8th Cir. 2006); In re Sac  

                              

& Fox Tribe of Mississippi in Iowa/Meskwaki Casino Litig. (Meskwaki Casino Litig.),  

340 F.3d 749 (8th Cir. 2003).  



          38        Meskwaki Casino Litig. , 340 F.3d at 751.  



          39        Id.  



          40        Id.  



          41        Id.  



          42        Id. at 751-52.  



          43        Id.  



                                                               -21-                                                         6890
  


----------------------- Page 22-----------------------

               44  

accounts.            Federal  litigation  ensued,  and  the  district  court  dismissed  the  action,  

concluding that it lacked subject matter jurisdiction to decide an intra-tribal dispute.45  



The Eighth Circuit upheld the district court's dismissal of the claims involving intra- 



                      46  

tribal matters.           



                                           

                     In Meskwaki Casino Litigation , the Eighth Circuit reaffirmed its earlier  



                                              

holding that the non-gaming claims in the case were "non-justiciable" because "[t]hey  



                                                                                                             

seek a form of relief that the federal courts cannot provide, namely, resolution of the  



                                                        47  

internal  tribal  leadership  dispute."                       While  none  of  the  non-gaming  claims  were  



                                                                                                 

expressly framed as an election dispute, the court determined that "[r]elief unrelated to  



gaming could only be granted to the extent the court could first resolve the intra-tribal  



                                                  

dispute and determine whether the [opposition group] was the rightful governing body  



                      48  

of  the  tribe."             "Jurisdiction  to  resolve  internal  tribal  disputes,  interpret  tribal  



constitutions and laws, and issue tribal membership determinations lies with Indian tribes  



                                              49  

                                                                                  

and not in the district courts."                  The court relied on earlier precedent characterizing an  



                                                                                         

election  dispute  between  competing  tribal  councils  as  a  non-justiciable  intra-tribal  



          44        Id.
  



          45        Id. at 752-53.
  



          46        Id. at 767.
  



          47        Id. at 763.  



          48        Id. at 764.  



          49        Id. at 763 (citing  United States v. Wheeler                       , 435 U.S. 313, 323-36 (1978)  



(noting that Indian tribes are "unique aggregations possessing attributes of sovereignty     

over both their members and their territory")).  



                                                                -22-                                                          6890
  


----------------------- Page 23-----------------------

             50  

                                                                                                   

matter.           In 2010 the Eighth Circuit characterized its 2003 decision as reaffirming "the  



                                                                                          

long established principle that '[t]ribal election disputes, like tribal elections, are key  



                                                                                

facets of internal tribal governance and are governed by tribal constitutions, statutes, or  



                           51  

                                                   

regulations.' "                 The court then reiterated its holding that "[b]ecause tribal governance  



                                                                                     

disputes are controlled by tribal law, they fall within the exclusive jurisdiction of tribal  



                        52                                            53 

                                                                                                                                       

institutions."               Other federal decisions                      dealing with access to tribal bank accounts after  

an election dispute reach the same conclusion as the Eighth Circuit.54  



            50           Id. at 764 (citing Goodface v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983)  



("[T]he district court overstepped the boundaries of its jurisdiction in interpreting the  

tribal constitution and bylaws and addressing the merits of the election dispute.")).  



            51          Attorney's   Process   & Investigation                                Servs., Inc.           v.   Sac   & Fox           Tribe  of  



Mississippi in Iowa                 , 609 F.3d 927, 943 (8th Cir. 2010) (alteration in original) (quoting         

COHEN 'S HANDBOOK OF FEDERAL INDIAN  LAW  4.06[1][b][i] (5th ed. 2005)).  



            52           Id.   The Fifer Group attempts to reframe the issue as a matter of exhaustion                                  



of tribal remedies.  But even when courts, both federal and state, have been confronted               

with situations where a tribe lacked a tribal court with jurisdiction over a self-governance     

dispute, they have concluded that the dispute remained a matter of internal tribal self-                                 

governance.  See  In re Sac & Fox Tribe of Mississippi in Iowa/Meskwaki Casino Litig.                                                                          ,  

340 F.3d at 751;  Lamere v. Superior Court , 31 Cal. Rptr. 3d 880, 886 (Cal. App. 2005).                                



            53  

                                                                                                                                            

                         See, e.g., U.S. Bancorp v. Ike, 171 F. Supp. 2d 1122, 1125 (D. Nev. 2001)  

                                                                                                         

("Deciding a question involving a tribal election dispute is solely a matter of tribal law,  

and we do not have jurisdiction to address this question."); Timbisha Shoshone Tribe v.  

                                                                            

Kennedy , 687 F. Supp. 2d 1171, 1185-86 (E.D. Cal. 2009) (concluding that the plaintiffs  

                                   

lacked standing in federal court because resolving their claim would require the court "to  

consider tribal law as it relates to elections and enrollment in the Tribe").  



            54  

                                                                                                           

                         Against the weight of this federal precedent, the Fifer Group cites Houlton  

Band of Maliseet Indians v. Boyce , a Maine Supreme Court case concerning competing  

                                                                     

tribal councils.  688 A.2d 908 (Maine 1997).  Although the Maine Supreme Court upheld  

                                                   

the trial court's exercise of jurisdiction, the court's language is cautious, reasoning that  

the trial court did "not improperly invade the Band's sovereignty" because it "declined  

                                                                                                                                       (continued...)  



                                                                            -23-                                                                      6890
  


----------------------- Page 24-----------------------

                                                                                        

                    We conclude that the weight of the precedent supports the superior court's  



                                                                                                             

conclusion that it lacked subject matter jurisdiction because determining the real party  



                                                                                               55  

in interest would necessitate resolving a disputed tribal election.                                



                    3.        Decisions involving issues of disputed tribal membership  



                    Our decision is further supported by the precedent on jurisdiction over  



                                                                                 

tribal  membership  disputes.    The  Fifer  Group  and  the  Polston  Group  dispute  the  



membership  claims  of  persons  who  signed  the  Fifer  Group's  election  petition  and  



                                    

persons  who  voted  in  the  competing  elections.    Determining  whether  either  group  



properly complied with the election and election dispute procedures may require an  



individual inquiry into whether the persons who participated were in fact tribal members,  



                                       

and  such  an  inquiry  by  the  state  court  would  likely  be  an  infringement  of  tribal  



sovereignty.  

                                                                       56 the United States Supreme Court held  

                    In Santa Clara Pueblo v. Martinez,  



that "[a] tribe's right to define its own membership for tribal purposes has long been  



          54(...continued)  



to declare the legitimacy of any members of the tribal council" or the legitimacy of the  

                                                                   

disputed election and because it  narrowly tailored its order to  "address the immediate  

                                                                                                            

[public order] crisis."  Id. at 909-11.  The court's exercise of jurisdiction in that case was  

                      

also supported by a federal statute that specifically subjected this particular tribe to the  

                                                           

"civil  and  criminal  jurisdiction  of  the  courts  of  the  State"  as  well  as  the  state  

implementing statutes.  Id.  at 910 (quoting the Maine Indian Claims Settlement Act,  

                                                                                              

25 U.S.C.  1721-1735 (1983 & Supp. 1996)).  The current case lacks any such statute  

                                                                               

or issue of public order.   



          55  

                                                                                                         

                    The majority of the cases in which jurisdiction was found involved federal  

                                                                                  

statutory grants of jurisdiction, which the Fifer Group does not claim are present here.  



          56        436 U.S. 49 (1978).  



                                                             -24-                                                        6890
  


----------------------- Page 25-----------------------

recognized  as  central  to  its  existence  as  an  independent  political  community"57  and  



therefore federal court jurisdiction was lacking in cases necessarily implicating tribal  



                                                                                                                    58  

                                                                                                                        In a  

membership disputes unless Congress has specifically provided for jurisdiction. 



                                                                    

more recent California decision, the California Court of Appeals concluded that the state  

                                                                                                                    59  The  

courts lacked jurisdiction in a case involving the disenrollment of tribal members. 



court did not find express Congressional authorization of state court jurisdiction and  



                                                                                                                    60 

                                                                                                                        The  

concluded that without such authorization, subject matter jurisdiction was lacking. 



                                                                                                    

court noted that the tribe did not have a tribal court which meant that the tribal members  

                                                                            61  However, the court decided that  

had no formal judicial remedy for their alleged injury. 



"this lack is sometimes an inevitable consequence to the individual tribal member of the  

                                                                         



tribe's sovereign immunity. . . . To the extent that Congress has not chosen to provide  



                               

an effective external means of enforcement for the rights of tribal members, the omission  



                                                                                   62  

is  for  Congress  to  reconsider  if  and  when  it  chooses."                           The  court  compared  the  



disenrollment dispute to "litigation concerning the outcome of an election" and noted  



          57       Id. at 72 n.32.  



          58       The Supreme Court held that the federal courts had no jurisdiction over  



actions to enforce the Indian Civil Rights Act, with the only exception being the express  

                                                  

statutory authority to hear habeas claims.  Santa Clara Pueblo, 436 U.S. at 60-62, 72.  

The Court noted that "Congress' authority over Indian matters is extraordinarily broad,  

                                                                      

and the role of courts in adjusting relations between and among tribes and their members  

                                                 

correspondingly restrained," id. at 72, and that "[c]reation of a federal cause of action for  

the enforcement of rights . . . plainly would be at odds with the congressional goal of  

                                                                                         

protecting tribal self-government," id. at 64.  



          59       Lamere v. Superior Court , 31 Cal. Rptr. 3d 880, 886 (Cal. App. 2005).  



          60       Id . at 882.  



          61       Id . at 882 n.2.  



          62       Id. (internal citations omitted).  



                                                            -25-                                                      6890
  


----------------------- Page 26-----------------------

that "[i]f the critical point were the membership rights of certain voters (or rejected  



voters),   obviously,   surely   the   courts   could   not   intervene   to   make   membership  

                63  The court found that it did not have jurisdiction to interfere with the tribe's  

decisions."                                                                             



determination  of  membership  because  such  a  decision  "would  unavoidably  have  

substantial and continuing effects on the Band's self-governance."64  



                   The presence of disputed issues of tribal membership in this case therefore  

                                                                              



provides additional support for the superior court's dismissal for lack of subject matter  

                                                                           



jurisdiction.   



                   4.	       Decisions involving the authority of an individual or group to  

                                                                                                                

                             exercise tribal authority  



                   The Fifer Group attempts to recharacterize the issue as one of disputed  



tribal authority, arguing that this court has permitted an inquiry into the authority of tribal  

                                                       



officials under tribal law to represent the tribe in state court proceedings.  In In re J.M. ,  

                                                                                                                  



the  case  cited  by  the  Fifer  Group,  we  determined  that  the  tribe's  chief  lacked  the  



                                                       

authority under the tribal constitution to unilaterally waive tribal court jurisdiction over  



                                  65  

a child custody matter.               The Fifer Group contends that the current case presents a  



similar question.  



                                

                    But our examination of tribal law in J.M. was performed under the auspices  

of the Indian Child Welfare Act's jurisdictional provision66 and an express Congressional  



          63	      Id. at 886.  



          64	      Id.  



          65       718 P.2d 150, 154 (Alaska 1986).  



          66       25 U.S.C.  1911(a) (2012) provides:  



                                                                                                

                   An Indian tribe shall have jurisdiction exclusive as to any  

                    State over any child custody proceeding involving an Indian  

                                                                                                         (continued...)  



                                                           -26-	                                                     6890
  


----------------------- Page 27-----------------------

                                           

mandate "to protect the best interests of Indian children and to promote the stability and  



                                                        67  

                                                                                                                

security of Indian tribes and families."                    Examining tribal law to determine whether the  



tribe     had      expressly        waived        jurisdiction        over     an     Indian       child     pursuant        to  



                                                                                      

25  U.S.C.    1911-1912  is  not  analogous  to  review  of  Healy  Lake  Village's  tribal  



elections.  We therefore conclude that J.M. is inapposite to the current tribal election  



                    

dispute  and  similarly  find  unpersuasive  the  Fifer  Group's  citation    to  Golden  Hill  



                                                                           68  

Paugussett Tribe of Indians v. Town of Southbury .  



                    5.        Issues of comity and sovereign immunity  



                    The Fifer Group also cites John v. Baker to argue that the state court should  



                                                                                                  69  

extend  comity  to  the  Tribe's  own  election  dispute  resolution.                                   However,  these  



                                                                                                            

arguments beg the question whether the state court has subject matter jurisdiction to  



review the existence and content of a tribal election dispute resolution process under  



                                                                                      

tribal law as well as to review the outcome of any such process when the outcome is  



                                                             

disputed, as it is here.  The Fifer Group does not explain how issues of comity can be  



addressed prior to a finding of subject matter jurisdiction.   



          66(...continued)  



                    child who resides or is domiciled within the reservation of  

                    such tribe, except where such jurisdiction is otherwise vested  

                                               

                    in the State by existing Federal law.  Where an Indian child  

                                                                                           

                    is  a  ward  of  a  tribal  court,  the  Indian  tribe  shall  retain  

                                                                 

                    exclusive   jurisdiction,   notwithstanding   the   residence   or  

                    domicile of the child.  



          67        J.M. , 718 P.2d at 152 (citing 25 U.S.C.  1902 (1982)).  



          68  

                                   

                    651 A.2d 1246 (Conn. 1995).  Golden Hill did not involve a tribal election  

or membership dispute but rather the division of tribal leadership authority between a  

purported tribal chief and an elected tribal council.  Id. at 1249.  



          69        982 P.2d 738, 762-64 (Alaska 1999).  



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----------------------- Page 28-----------------------

                                                                                                    

                    Similarly,  the  superior  court  properly  did  not  reach  the  merits  of  any  



                                                                                                      

sovereign immunity issues as it lacked subject matter jurisdiction to determine which  



                                                                                        

group actually represented the Tribe and would therefore be entitled to raise a sovereign  



immunity defense.   



                                                                                                    

                   Thus, the superior court properly dismissed this case for lack of subject  



                                                                                                              

matter jurisdiction because determining the real party in interest would have required the  



superior court to decide matters solely within the Tribe's retained inherent sovereignty.  



V.        CONCLUSION  



                                                                                                  

                   For the reasons set out in this opinion, we AFFIRM the superior court's  



dismissal for lack of subject matter jurisdiction.  



                                                            -28-                                                       6890
  

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