No. 80-275 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

MADELINE COLLIFLOWER, Plaintiff 

### and Appellant,

VS. THE FORT BELKNAP COMMUNITY COUNCIL, THE FORT BELKNAP TRIBE OF INDIANS 

### and THE FORT BELKNAP COMMUNITY ACTION PROGRAM, Defendants and Respondents.

Appeal from: DistrictCourtof the TwelfthJudicial District, 

### Inand for the County of Blaine. Honorable B. W. Thomas, Judge 

### presiding. Counsel of Record: For Appellant: 

### Spangelo Law Firm, Havre, Montana James Spangelo argued, Havre, Montana For Respondents: 

### Francis X. Lamebull 

### argued, Harlem, Montana

Submitted: April 24, 1981 

# 5'gg-

# s/ Decided: 

## ,

ClerkMr. JusticeFrank B. Morrison, 

### Jr., delivered the Opinion of the Court.

Madeline Colliflower, an enrolledmember of the Fort Belknap ~ribe, appeals from an order of the District Court of the Twelfth Judicial District, Blaine County, granting the respondents1motion todismiss and renderingmoot her motion for summary judgment. Respondents1motion todismiss

was made after 

### itsanswer and, therefore, 

### is considered a motion for judgment on the pleadings. Rule 12(c),M.R.Civ.P. Additionally the appellant's complaint failed to specifically allegejurisdiction, however, we are able to glean sufficient facts from the pleadings to resolve the jurisdictional issue. The appellant was hired by the Fort Belknap Tribe (tribe)inMay of 1972 asdirector of the Fort Belknap Indian Community Action Program (CAP). The program 

### was funded under 

### a grant from the Office of Native American Programs of the Department of Health, Education and Welfare and was intended for the promotion of tribal economic selfsufficiency. The appellant was fired June 23, 1976, following a hearing before the Fort Belknap Community Council concerning allegations of official neglect and gross

### mismanagemen

### t. The appellant first sued the respondents in federal court, allegingwrongful termination of employment. On January 19, 1979, the casewas dismissed. The federal court held the actionof the Fort Belknap Community councilwas in

a "wholly governmental capacity", and therefore, they were immune from suit. The appellant then filed a complaint inthe Twelfth Judicial District, which 

### is the basis of this appeal, alleg-ingbreach of contract, tortand denial of due process. The lower court dismissed the action in

### its order of July 7,

"The Court concludes that the activities

### we deal with here aregovernmental functions of the tribal entity; that the Fort Belknap Indian Community and 

### itsagencieswho aredefendants inthis action are immune from s u i t i nthe absence of an express waiver; that there has been no such waiver as to the tribal entity. Consequently, defendant's motion todismiss should be granted. Plaintiff's motion 

### willthereby be rendered moot." The issuespresented are (1)whether the District Court's finding of purely governmental activity by the tribe 

### is supported by the record and (2) whether the District Court properly rejected appellant's claim of an implied waiver of tribal immunity. We agree with the DistrictCourt and affirm 

### itsorder. Before discussing the merits of this appeal, we must briefly explain the internal organization of the Fort Belknap Tribe. Under authorityof the Indian Reorganization Act of June 18, 1934, Ch. 576, 48 Stat. 984, 

## - as amended, 25 U.S.C., §§ 461-479, Indians were authorized to organize for purposes of local self-government through the adoption of constitutions (section 16) and corporate charters (section 17). The FortBelknap Tribe ratified both. Its constitutionwas ratified in 1935, and 

### itscorporate charter in 1937. The general difference between constitutional and corporate entitieswas discussed inan opinion of the Solicitor, Department of the Interior: "The purpose of Congress inenacting Section 16 of the Indian Reorganization Act was to facilitate and to stabilize the tribal organization of Indians residing on the same reservation,-fortheir common welfare. Itprovided their political organi-zation. The purpose of Congress inenacting Section 17 of the Indian Reorganization Act 

### was to empower the Secretary to issue a charter of businessi-ncorporationto such tribes toenable them to conduct business through thismodern device, which charter cannot be revoked or surrendered except by Act of Congress. This corporation, although composed of the same members as the political body, 

### is tobe a separate entity, and thus more capable of obtaining credit and otherwise expediting the business of the Tribe

# . . ." No. M-36515, 65 

### Int. Dec. 483 (November 20, 1958). See generally, Comment, Tribal Self-Government and the Indian Reorganization Act of 1934, 70 Mich.L.Rev. 955 (1972). The governmental entityof the Fort Belknap Tribe retains 

### its sovereign immunity to the extentnot expressly waived or restrictedby Congress. The corporation, however, 

### isempowered: "To sue and tobe sued incourts of competent jurisdiction within the United States; but the grantor exercise of such power to sue and to be sued shall not be deemed a consent by the Community or by the United States to the levy of any judgment, lienor attachmentupon the property of the Community other than income or chattels speciallypledged or assigned." Corporate Charter of the Fort Belknap Indian Community of the Fort Belknap Indian Reservation, ratifiedAugust 25, 1937. While recognizing the general principles of Indian immunity, appellant argues the Fort Belknap Tribe no longer enjoys the privilege. The argument 

### isnot supported by evidence of actual corporate activitybut rather a speculative legal theory. Appellant contends thatby adopting a business corporationpursuant to section 17 the governmental entity merged with the corporate entity, thereby completely waiving the tribe

## 's immunity

# . The DistrictCourt considered appellant's merger theory and rejected 

### it concluding: "Here, the showing 

### is that the Community Action program was developed through the Native American Programs as a result of the special relationship which existsbetween the federal government and Indians and Indian tribes for the purpose of advancing the welfare of the Indians. Agreed that a principal purpose was toimprove the economic and social conditions of the Community, thatpurpose 

### isa proper governmental function. Conceivably, certain business projects might result directly or indirectly from the program, and ifsuch projects should be undertaken by theCommunity, the corporate entitymight 

### wellbe involved. No commercial or business activity 

### is involved here.

### " The judgment must be affirmed. First, appellant has failed tocarry her burden of proof regarding the claim that the Community Council was acting under color of 

### its corporate charter. The record contains no affirmative evidence to support such a contention. Second, appellant's merger theory 

### isnot supported by any authorityreviewed by thisCourt and, in fact, conflicts with current Indian 

### lawprinciples. The theory 

### rests upon the untenable foundation of an implied waiver of immunity. In Santa Clara Pueblo v. Martinez (1978), 436 U.S. 49, 56 L.Ed.2d 106, 98 S.Ct. 1670, the Supreme Court decided whether a federal courtmay pass on the validity of a tribal ordinance denying membership to the children of female members who married outside the tribe. The action

### was 

## IL brought under Title of the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C., 

### 85 1301-1303. Inholding the Act doesn't impliedly authorize such actions, the courtdiscussed the nature of tribal immunity: "Indian tribes have long been recognized aspossessing the common-law immunity from suittraditionally enjoyed by sovereignpowers. Turner v. United States, 248 U.S. 354, 358 (1919); United Statesv. United States Fidelity & Guaranty Co., 309 U.S. 506, 512-513 (1940); Puyallup Tribe v. Washington Dept. of Game, 433 U.S. 165, 172-173 (1977). This aspect of tribal sovereignty, like allothers, 

### is subject to the superior and plenary control of Congress. But 'without congressional authorization,

### ' the 

## 'Indian Nations areexempt from suit.

### ' United States

### v. United StatesFidelity & Guaranty Co., supra, at512. "It



## -- is settled

## -- that a waiver of sovereign immunity 'cannot be 

## -implied 

## --- butmust beunequivocally exoressed.' -UnitedStates

### v. Testan, 424 U.S. 392, ,. 399 (1976), quoting, United Statesv. King, 395 U.S. 1, 4 (1969)." (Emphasis added.) Santa Clara Pueblo, 436 U.S. at58.In summary, 

### we find the Community Council acted solely in

### itsgovernmental capacity inthe termination of the appellant and concur with the rejection of the notion that tribal ratification of a section 17 corporate charter subsumes, and thereby merges, an existent section 16 tribal sovereign. An implied waiver 

### is impermissible; the waiver must be express. The judgment of the District Court 

### is affirmed.

We concur:

Chief Justic