WASKER, DORR, WIMMER & MARCOUILLER, P.C., MICHAEL D. MASON, d/b/a MICHAEL D. MASON LAW OFFICE, JORDAN MAHONEY, JORDAN & QUINN, P.C., IOWA MANAGEMENT & CONS ULTANTS, INC., JOHN R. HEARN, d/b/a JO HN R. HEARN LAW OFFICES, JAMES DEMASSEO, AND THE CONCEPT WORKS, LLC, Plaintiffs-Appellees, vs. HOMER BEAR, JR., HARVEY DAVENPORT, JR., WAYNE PUSHETONEQUA, KEITH DAVENPORT, DERON WARD, FRA NK BLACKCLOUD, AND RAY YOUNGBEAR, Individually, and in any claimed capacity as Tribal Council for the Sac & Fox Tribe of th e Mississippi in Iowa, Defendants-Appellants.
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IN THE COURT OF APPEALS OF IOWA
No. 6-293 / 04-1917
Filed October 25, 2006
WASKER, DORR, WIMMER & MARCOUILLER, P.C.,
MICHAEL D. MASON, d/b/a MICHAEL D. MASON LAW
OFFICE, JORDAN MAHONEY, JORDAN & QUINN, P.C.,
IOWA MANAGEMENT & CONSULTANTS, INC.,
JOHN R. HEARN, d/b/a JOHN R. HEARN LAW OFFICES,
JAMES DEMASSEO, AND THE CONCEPT WORKS, LLC,
Plaintiffs-Appellees,
vs.
HOMER BEAR, JR., HARVEY DAVENPORT, JR.,
WAYNE PUSHETONEQUA, KEITH DAVENPORT,
DERON WARD, FRANK BLACKCLOUD,
AND RAY YOUNGBEAR, Individually, and in any
claimed capacity as Tribal Council for the
Sac & Fox Tribe of the Mississippi in Iowa,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Tama County, Thomas M. Horan,
Judge.
The defendants appeal the denial of their motion to dismiss. AFFIRMED
AND REMANDED FOR FURTHER PROCEEDINGS.
Steven F. Olson and Jeffrey S. Rasmussen of Olson, Allen & Rasmussen,
Bloomington, Minnesota, and Wilford Stone of Lynch Dallas, PC, Cedar Rapids,
for appellants.
Fred L. Dorr, West Des Moines, for appellees Wasker, Dorr, Wimmer &
Marcouiller, P.C., Iowa Management & Consultants, Inc., James Demasseo and
the Concept Works, LLC.
John Hearn, Des Moines, pro se.
Michael Mason, Portland, Oregon, pro se.
Heard by Vogel, P.J., and Zimmer and Vaitheswaran, JJ.
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VOGEL, P.J.
The defendants appeal from the district court’s order that denied their
motion to dismiss. For the reasons discussed below, we affirm the district court’s
denial of the motion, but conclude the joinder of the Tribe necessary as an
indispensable party and remand for further proceedings.
I. Background Facts and Proceedings.
This case is another in a long string of state and federal litigation
stemming from a tribal leadership dispute within the Meskwaki Settlement near
Tama, Iowa. In September 2002, a dissident faction led by Homer Bear Jr.,
challenged the authority of the elected council chaired by Alex Walker. The
plaintiffs (hereinafter collectively referred to as Wasker), having done business
with the Walker Council, found themselves caught in the middle of this tribal
leadership dispute.
Consequently, Wasker filed a petition for declaratory
judgment in Tama County on March 16, 2004, naming as defendants Homer
Bear Jr. and others, “individually and in any claimed capacity as Tribal Council
for the Sac & Fox Tribe of the Mississippi in Iowa,” (hereinafter collectively
referred to as the Bear defendants).
Wasker and the other plaintiffs allege
certain contracts for legal services, arbitration/litigation settlements, and other
agreements (hereinafter referred to generally as agreement[s]) exist between the
plaintiffs and the Tribe as all were properly approved by the Tribe, as then
governed by the Walker Council, the Bureau of Indian Affairs of the Interior
Department, and/or reduced to judgment or dismissed by an Iowa or federal
court. Wasker seeks a declaration of the parties’ rights under the agreements
upon allegations that the Bear defendants have attempted to reject or invalidate
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the agreements and nullify prior state and federal court action.
The Bear
defendants filed a motion to dismiss the petition on April 6, 2004, asserting: 1)
failure to join the Tribe as an indispensable party and tribal sovereign immunity;
2) failure to state a claim upon which relief may be granted; 3) lack of subject
matter jurisdiction; and 4) failure to comply with Iowa Rule of Civil Procedure
1.411(2).
The district court denied the motion to dismiss in its entirety,
concluding it did have subject matter jurisdiction as Wasker stated a proper claim
for relief and an equitable, declaratory action on contracts does not interfere with
tribal sovereignty. The Bear defendants appealed the denial of the motion to
dismiss on the first three grounds numerated above, to which our supreme court
granted interlocutory review.
II. Scope of Review.
We review motions to dismiss for correction of errors at law.
Crall v.
Davis, 714 N.W.2d 616, 619 (Iowa 2006).
III. Issues on Appeal.
The Bear defendants argue that the district court erred by denying
dismissal of the declaratory judgment action against them for several reasons.
A. Indispensable Party. The first ground for dismissal urged by the Bear
defendants before the district court and on appeal is failure to join the Tribe as an
indispensable party.
The district court’s ruling does not specifically address
whether the Tribe is an “indispensable party” for purposes of this dispute, and the
Bear defendants did not file a motion to enlarge under Iowa rule 1.904(2).
Nonetheless the district court implicitly rejected the claim by denying the motion
to dismiss, “in its entirety for the reasons stated in the resistance.” We conclude
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there was minimally adequate error preservation for our review. See Meier v.
Senecaut, 641 N.W.2d 532, 539 (Iowa 2002).
The Bear defendants’ motion to dismiss was a pre-answer motion
pursuant to rule 1.421. Even in this utmost preliminary stage of the case, the
Wasker plaintiffs’ petition on its face seeks to bind the Tribe to a declaratory
judgment ruling as a party to the various agreements. While there is no claim the
Tribe is attempting to undo what had been done by the Walker Council, each
count of the petition contains a prayer of relief asking that, “the court confirm and
declare the [agreement] as valid and binding on the parties to it including the
Tribe. . . . “ (emphasis added). The Tribe is clearly indispensable to a declaratory
judgment suit involving agreements to which it is a signatory party. See Irwin v.
Keokuk Sav. Bank & Trust Co., 218 Iowa 961, 964, 256 N.W. 681, 683 (1934)
(holding that some privity must be shown between parties in order to bring them
into an action).
At this early stage of this declaratory judgment action, we
conclude that the Tribe is indispensable. The district court was correct in not
dismissing the case as dismissal, is not the appropriate remedy for failing to join
an indispensable party. See Iowa R. Civ. P. 1.234(3) (providing proper remedy
and procedure for joining indispensable parties). Rather, the district court should
order the Tribe be brought in.
We therefore remand to the district court for
joinder of the Tribe as an indispensable party to this declaratory judgment action.
B. Sovereign Immunity. The Bear defendants next argue that sovereign
immunity bars prosecution of this case against the Tribe itself, thereby warranting
dismissal once the Tribe is joined. Although generally, sovereign immunity will
foreclose litigation for damages against a tribe, an exception exists in equitable
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actions, such as declaratory judgment suits. See Comstock Oil & Gas Inc. v.
Alabama and Coushatta Indian Tribes of Texas, 261 F.3d 567, 571-72 (5th Cir.
2001) (holding that neither the tribe nor individually-named tribal council
members hold sovereign immunity from an equitable suit for declaratory or
injunctive relief), cert. denied by Alabama and Coushatta Indian Tribes of Texas
v. Comstock Oil & Gas Inc., 535 U.S. 971, 122 S. Ct. 1438, 152 L. Ed. 2d 382
(2002); Big Horn County Elec. Co-op., Inc. v. Adams, 219 F.3d 944, 954 (9th Cir.
2000) (holding suits for prospective injunctive relief are permissible against
Indian tribal officers and do not violate tribal sovereign immunity). Because this
declaratory judgment action seeks equitable relief and not damages, we
conclude the case may go forward without dismissal on sovereign immunity
grounds even after the Tribe is joined as an indispensable party.
C.
Justiciable Controversy.
The Bear defendants next assert the
district court erred by concluding the plaintiffs “have not failed to state claims
upon which relief can be granted.”
‘Since the advent of notice pleading under Iowa Rule of Civil
Procedure 69(a), it is a rare case which will not survive a [motion to
dismiss]. As a result, disposition of unmeritorious claims in
advance of trial must now ordinarily be accomplished by other
pretrial procedures which permit narrowing of the issues and
piercing of the bare allegations contained in the petition.’
Rieff v. Evans, 630 N.W.2d 278, 292 (Iowa 2001) (quoting Am. Nat'l Bank v.
Sivers, 387 N.W.2d 138, 140 (Iowa 1986)). Therefore, very little is required in a
petition to survive a motion to dismiss on the failure to state a claim ground. Id.
at 292. One is not required to plead ultimate facts that support the elements of
the claimed cause of action. But facts sufficient to apprise the defendant of the
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incident must be included in the petition in order to provide “fair notice” of the
claim asserted. Id. A motion to dismiss is properly granted only if a plaintiff’s
petition “on its face shows no right of recovery under any state of facts.” Schaffer
v. Frank Moyer Constr., Inc., 563 N.W.2d 605, 607 (Iowa 1997). The petition is
assessed in the light most favorable to the plaintiff, and all doubts and
ambiguities are resolved in plaintiff’s favor. Below v. Skarr, 569 N.W.2d 510, 511
(Iowa 1997); Treimer v. Lett, 587 N.W.2d 622, 625 (Iowa Ct. App. 1998). Wasker
requests equitable relief upon agreements alleged in the petition that the Bear
defendants have in some manner sought to dishonor or invalidate. Declaring the
rights of parties under contractual agreements is a proper avenue of relief in an
equitable declaratory judgment action. See IMT Ins. Co. v. Crestmoor Golf Club,
702 N.W.2d 492, 495-96 (Iowa 2005). Therefore, we affirm denial of the motion
to dismiss on this ground.
D. The Jurisdictional Question.
The Bear defendants’ pre-answer
motion challenging subject matter jurisdiction relies on facts outside of the
pleadings. To resolve the jurisdictional issue, the district court was required to
look beyond the pleadings, as:
Where there is a conflict between the parties as to the existence of
a jurisdictional fact, the court should not decide the question on
affidavits, even with the consent of the parties; in such case the
dispute should be determined by the taking of evidence, either at a
hearing on that issue or at the trial of the case.
Tigges v. City of Ames, 356 N.W.2d 503, 511 (Iowa 1984) (citing 21 C.J.S.
Courts § 112 (1940)). Where the facts pertinent to the determinative issue in a
motion to dismiss are disputed, the case usually cannot be resolved on such a
motion. Pennsylvania Life Ins. Co. v. Simoni, 641 N.W.2d 807, 810 (Iowa 2002).
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When the district court was presented with the jurisdictional challenge, it
appears to have allowed the parties an opportunity to develop the record and
submit evidence outside of the pleadings.
See Hayden v. Ameristar Casino
Council Bluffs, Inc., 641 N.W.2d 723, 724 (Iowa 2002) (reversing and remanding
with instructions for evidentiary development on a jurisdictional issue involving a
mixed question of law and fact contested by the parties); Troester v. Sisters of
Mercy Health Corp., 328 N.W.2d 308, 311 (Iowa 1982) (adopting the notion that
in motions to dismiss where matters outside the pleadings are relied upon in
support of the motion, the proper procedure is to treat the motion as one for
summary judgment).
However, the only evidence submitted by the Bear
defendants was three affidavits from counsel or others regarding matters not
directly relevant to the jurisdictional issue. At least one of the affidavits, sworn by
tribal Executive Director Larry Lasley the month following the motion hearing, 1
simply attests to the formation and jurisdiction of the tribal court.
Another
affidavit filed after submission of the motion was sworn by trial counsel, Steven
Olson, merely presenting evidence of media coverage of the tribal dispute in
2003.
None of the affidavits appear to have any direct bearing on the
agreements at issue in this case. Indeed, no copies of the agreements, or other
evidence of their contents or attempts to dishonor the same, appear to be in the
record for consideration of the motion to dismiss.
As many of the crucial
underlying facts of the plaintiffs’ claims remain unknown on this scant record, we
1
We question the timeliness of the Bear defendants’ affidavits, as they were filed after
submission of the motion upon hearing. Although our court rules ordinarily require
attachment of all supporting affidavits in such a motion, see Iowa R. Civ. P. 1.981,
Wasker appears not to have objected to the submissions, which were accepted by the
district court.
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cannot say that the district court erred by denying the motion to dismiss for lack
of subject matter jurisdiction.
We next address the Bear defendants’ assertion that the proper
jurisdiction is with the tribal court. The district court concluded the state court
had jurisdiction because, “the Meskwaki Tribal Court was not established until
after the commencement of these proceedings; Plaintiffs could not have
exhausted use of the tribal court for their remedy because the tribal court did not
exist when the claims were brought.” We agree. See National Farmers Union
Ins. Cos. v. Crow Tribe, 471 U.S. 845, 856 n. 21, 105 S. Ct. 2447, 2454 n. 21, 85
L. Ed. 2d 818 (1985) (holding exhaustion would not be required where it would
be “futile because of the lack of an adequate opportunity to challenge the [tribal]
court’s jurisdiction.”); Krempel v. Prairie Island Indian Community, 125 F.3d 621,
622-24 (8th Cir. 1997) (holding that a litigant need not exhaust tribal remedies
when no functioning court existed at the time of filing the original complaint
because exhaustion would have been futile and would have violated principles of
judicial economy, and as a matter of law, a plaintiff who files a timely claim in an
existing forum is not required to exhaust tribal remedies at a later time when a
tribal court comes into existence). We affirm denial of the motion to dismiss for
want of jurisdiction based upon the futility of attempting to try an issue in a nonexistent tribal court.
The district court also found, “the infringement doctrine on which
Defendant’s rely is inapplicable in these proceedings because, as Plaintiffs
argue, the relief sought in this matter is equitable and sounds in contract and
does not interfere with tribal sovereignty and self-government.” We affirm the
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district court on the scant record before us. However, because the Tribe was not
joined as an indispensable party, we make no determination as to the merits of
the infringement claim should it be reasserted.
E. Conclusion.
We conclude the Tribe must be joined as an
indispensable party because plaintiffs seek relief necessarily affecting the Tribe.
Once the Tribe is joined, the case may proceed in district court, as sovereign
immunity is not a defense in this equitable cause of action for declaratory
judgment. We affirm the denial of the motion to dismiss based upon failure to
state a claim as the petition alleges a substantive justiciable controversy. The
district court also properly denied dismissal for lack of subject matter jurisdiction
as to prosecution in tribal court, as no such court existed when this action was
initiated. Finally, we affirm denial of dismissal based upon infringement because
the early posture of this case and minimal record do not conclusively support the
allegation that the plaintiffs’ claims would infringe upon tribal self-governance
without joinder of the Tribe.
Therefore, on this interlocutory appeal, we affirm the district court’s denial
of the Bear defendants’ motion to dismiss and remand to the district court for
further proceedings consistent with this opinion.
AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS.
Zimmer, J., concurs; Vaitheswaran, J., concurs in part and dissents in
part.
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VAITHESWARAN, J. (concurring in part and dissenting in part)
I concur in the majority’s conclusion that the Tribe is an indispensable
party and the case should be remanded to add the Tribe as a party. Francksen
v. Miller, 297 N.W.2d 375, 378 (Iowa 1980); Ditch v. Hess, 212 N.W.2d 442, 450
(Iowa 1973).
I dissent from the majority’s decision to decide the sovereign
immunity question. I believe that is a question that should be decided only after
the Tribe is added and only if the Tribe raises it as a basis for dismissal.
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