The opinion of the court was delivered by: FITZGERALD
The facts are essentially undisputed. Plaintiff Richard Aubertin is an enrolled member of the defendant Colville Confederated Tribes. Aubertin borrowed $10,034.14 from the Tribes on June 3, 1963 and later obtained additional loans increasing the principal amount by $8,127.12. The Tribes' Credit Committee declared him in default on June 6, 1968 with a balance then owing of $9,487.29.
Aubertin obtained a discharge in bankruptcy on March 9, 1972. However, under established procedures
followed by the Colville Indian Agency,
income from Aubertin's Indian Money Account was withheld from him and paid over to the Colville Tribes for application to his defaulted loan.
Aubertin brought this lawsuit seeking return of all sums withheld by the Colville Indian Agency since the filing of his petition in bankruptcy, and an injunction against further withholding.
The case is now here on cross-motions for summary judgment.
The principle is well-recognized that as dependent, quasi-sovereign nations, tribes enjoy sovereign immunity and cannot be sued without the consent of Congress or the tribe. United States v. United States Fidelity and Guaranty Co., 309 U.S. 506, 60 S. Ct. 653, 84 L. Ed. 894 (1940); Lomayaktewa v. Hathaway, 520 F.2d 1324 (9th Cir. 1975); Twin Cities v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967). Aubertin claims that the withholding by the Tribes of his per capita share of Indian money is contrary to provisions of the Indian Civil Rights Act, 25 U.S.C. § 1302.
Although the Indian Civil Rights Act by its terms does not expressly limit tribal sovereign immunity, the courts have held that the Act does so by necessary implication.
As noted in Martinez, supra, at 1042, "[Since] this Act of Congress was designed to provide protection against tribal authority, the intention of Congress to allow suits against the tribe was an essential aspect. Otherwise, it would constitute a mere unenforceable declaration of principle." Moreover, 28 U.S.C. § 1343(4)
unequivocally confers on the district courts jurisdiction to determine whether an Indian tribe has denied any of the rights given to individuals under the Indian Civil Rights Act. Howlett v. Salish and Kootenai Tribes, supra; Johnson v. Lower Elwha Tribal Community, supra; Crowe v. Eastern Band of Cherokee Indians, Inc., 506 F.2d 1231 (4th Cir. 1974); Luxon v. Rosebud Sioux Tribe of South Dakota, 455 F.2d 698 (8th Cir. 1972).
Therefore, the Tribes' initial contention that jurisdiction under the Indian Civil Rights Act should be limited to habeas corpus relief must be rejected.
Whether this is an appropriate case in which to assume jurisdiction turns on whether Aubertin's entitlement to "Indian money" is an interest protected under the Indian Civil Rights Act. Periodically, the Business Council of the Colville Tribes by resolution orders payment of a dividend to all tribal members. Each enrolled member of the Tribes is entitled to receive an equal share, with the exception of minors,
adults under a legal disability
and individuals who have defaulted on their loans.
The Tribes' policy of segregating from tribal funds the per capita share of those with delinquent debts and then crediting such share to each debtor's account is a recognition that each debtor would have been entitled to a dividend payment were he not indebted to the Tribes.
Although the resolution directing payment contemplates that the funds will be used for "subsistence, clothing, fuel, home repairs and improvements, furniture, educational expenses, medical and dental expenses, logging and farm equipment repairs and replacement, and other expenses", there is nothing to indicate that the Tribes may restrict how the funds are spent. Thus, when the dividend is disbursed, it becomes the exclusive possession of the individual recipient, free from tribal supervision.
Although Aubertin did not receive payment as a member of the Tribes, he had a vested interest in his share once it was segregated from tribal funds. I find that Aubertin's right to receive tribal dividends is protected by the due process clause of the Indian Civil Rights Act, and that he may properly bring his cause of action under the Indian Civil Rights Act.
Aubertin's claim under the Indian Civil Rights Act rests on his contention that the Tribes have failed to comply with the discharge given him in bankruptcy. The following issues are therefore raised: Does the Bankruptcy Act apply to Indian tribes, and if so, have the Tribes violated the Bankruptcy Act by withholding Aubertin's share of "Indian money"? Lastly, if the Tribes ...