No. 80-275 

IN THE 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: District Court of the Twelfth Judicial District, 

In and 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 

Decided: , 

5' gg- s/ 

Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

Madeline Colliflower, an enrolled member of the Fort 

Belknap ~ribe, appeals from an order of the District Court 

of the Twelfth Judicial District, Blaine County, granting 

the respondents1 motion to dismiss and rendering moot her 

motion for summary judgment. Respondents1 motion to dismiss 

was made after its answer 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 

allege jurisdiction, 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) in May of 1972 as director 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, alleging wrongful termination of employment. On 

January 19, 1979, the case was dismissed. The federal court 

held the action of the Fort Belknap Community council was in 

a "wholly governmental capacity", and therefore, they were 

immune from suit. 

The appellant then filed a complaint in the Twelfth 

Judicial District, which is the basis of this appeal, alleg- 
ing breach of contract, tort and 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 are governmental functions of the tribal 

entity; that the Fort Belknap Indian Community and 

its agencies who are defendants in this action are 

immune from s u i t i n the absence of an express 

waiver; that there has been no such waiver as to 

the tribal entity. Consequently, defendant's motion to dismiss should be granted. Plaintiff's 

motion will thereby be rendered moot." 

The issues presented 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 District Court 

and affirm its order. 

Before discussing the merits of this appeal, we must 

briefly explain the internal organization of the Fort 

Belknap Tribe. 

Under authority of 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 

Fort Belknap Tribe ratified both. Its constitution was ratified in 1935, and its corporate charter in 1937. 

The general difference between constitutional and 

corporate entities was discussed in an opinion of the Solicitor, Department of the Interior: 

"The purpose of Congress in enacting Section 16 of 

the Indian Reorganization Act was to facilitate 

and to stabilize the tribal organization of Indians 

residing on the same reservation, -for their common 

welfare. It provided their political organi-zation. The purpose of Congress in enacting Section 

17 of the Indian Reorganization Act was to empower 

the Secretary to issue a charter of business 
i-ncorporation to such tribes to enable them to 

conduct business through this modern 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 to be 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 entity of the Fort Belknap Tribe 

retains its sovereign immunity to the extent not expressly 

waived or restricted by Congress. The corporation, however, 

is empowered: 

"To sue and to be sued in courts of competent 

jurisdiction within the United States; but the 

grant or 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, lien or attachment upon the 

property of the Community other than income or 

chattels specially pledged or assigned." Corporate Charter of the Fort Belknap Indian Community of the Fort Belknap Indian Reservation, 

ratified August 25, 1937. 

While recognizing the general principles of Indian 

immunity, appellant argues the Fort Belknap Tribe no longer 

enjoys the privilege. The argument is not supported by 

evidence of actual corporate activity but rather a speculative 

legal theory. Appellant contends that by adopting a business 

corporation pursuant to section 17 the governmental entity 

merged with the corporate entity, thereby completely waiving 

the tribe ' s immunity . 

The District Court 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 exists between the federal government and 

Indians and Indian tribes for the purpose of advancing the welfare of the Indians. Agreed that a 

principal purpose was to improve the economic 

and social conditions of the Community, that purpose is a proper governmental function. Conceivably, certain business projects might result directly or indirectly from the program, and if 
such projects should be undertaken by the Community, the corporate entity might well be involved. 

No commercial or business activity is involved 

here. " 

The judgment must be affirmed. First, appellant has 

failed to carry 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 is not supported by 

any authority reviewed by this Court and, in fact, conflicts 

with current Indian law principles. 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 court may 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. In holding the Act doesn't 

impliedly authorize such actions, the court discussed the 

nature of tribal immunity: 

"Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Turner v. 

United States, 248 U.S. 354, 358 (1919); United 

States v. 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 

all others, is subject to the superior and plenary 

control of Congress. But 'without congressional 

authorization, ' the ' Indian Nations are exempt 

from suit. ' United States v. United States Fidelity 

& Guaranty Co., supra, at 512. 

"It -- is settled -- that a waiver of sovereign immunity 

'cannot be - implied --- but must beunequivocally exoressed.' -United States v. Testan, 424 U.S. 392, ,. 

399 (1976), quoting, United States v. King, 395 

U.S. 1, 4 (1969)." (Emphasis added.) Santa Clara 

Pueblo, 436 U.S. at 58. 
In summary, we find the Community Council acted solely 

in its governmental capacity in the 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