NO. 92-531 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

VERLIN F. WIPPERT and 

LORETTA L. WIPPERT, 

Plaintiffs and Appellants, 

THE BLACKFEET TRIBE OF THE 

BLACKFEET INDIAN RESERVATION, 

Defendant and Respondent, 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Glacier, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Seldon S. Frisbee, Attorney at Law, Cut Bank 

Montana 

For Respondent: 

Jean Bear Crane, Attorney at Law, Blackfeet Legal 

Department, Browning, Montana 

Filed: 

Submitted on Briefs: June 10, 1993 

Decided: ~ugust 25, 1993 
Justice John Conway Harrison delivered the Opinion of the Court. 

Loretta and Verlin Wippert (Wipperts) appeal from an order of 

the Ninth Judicial District Court, Glacier County, granting the 

Blackfeet Tribe's motion to dismiss the Wippertsq claims, which 

originally took the form of a declaratory judgment action filed in 

the District Court in 1977. We affirm. 

This is the Wipperts' third appeal to this Court. After the 

first appeal, we remanded the case to the District Court for 

further proceedings. Wippert v. Blackfeet Tribe (1982), 201 Mont. 

299, 654 P.2d 512 (Wiwwert I). On remand, the District Court 

entered judgment for the Tribe and the Wipperts appealed again. We 

reversed. Wippert v. Blackfeet Tribe (19851, 215 Mont. 85, 695 

P.2d 461 (Wiwwert 11). The Tribe then moved to dismiss for lack of 

subject matter jurisdiction, leading to the appeal now before us 

(Wiw~ert 111). 

Following is the history of this case so far as it is relevant 

to the subject of the present appeal and to the issue of subject 

matter jurisdiction. 

Wiwwert I 

In 1974 the Wipperts, who owned a 2,400-acre ranch on the 

Blackfeet Reservation, borrowed $46,773 from the Blackfeet Tribe. 

The loan was secured by "all cattle now owned or hereafter acquired 

by the [Wipperts] ,I* and the security agreement provided that the 

debtors would have at least five days1 notice of any sale of the 

collateral. The loan, plus interest at ten percent, was due on 
November 1, 3975, but on that date the Wipperts had paid only 

$2,043 on the principal. 

On March 8, 1976, the Tribe notified the Wipperts that they 

were in default and that the Tribe intended to have the cattle 

picked up and taken to market, pursuant to the security agreement. 

The Tribe moved the cattle to another ranch on March 12, 1976, to 

be held until they could be sold. On April 15, 1976, the Tribe 

obtained a judgment in the Blackfeet Tribal Court for $44,730, 

authorizing the Tribe to sell the cattle and apply the proceeds of 

the sale first to the cost of feeding and shipping the cattle, and 

second to the judgment balance. Notice of this judgment was filed 

with the Glacier County clerk and recorder on April 21, 1976. 

The cattle were sold at public auction in Shelby, Montana, on 

April 19, 1976, for $38,400, of which $27,031 was applied to the 

principal balance due on the Wipperts' loan. Two months later, the 

Wipperts agreed to sell their ranch to a third party (the 

Robertsons), but when the Robertsons discovered the Tribe's notice 

of judgment they refused to accept title. The Wipperts then agreed 

to hold $20,000 from the sale of the property in an interestbearing escrow account, pending release of the tribal court 

judgment. If necessary to clear the judgment, the money was to be 

used for that purpose; otherwise, it was to be returned to the 

Wipperts. Because of this agreement, a title insurance policy was 

issued without listing the tribal court judgment as an exception. 

The ranch was conveyed to the Robertsons on July 1, 1976. 

On June 29, 1977, the Wipperts filed a declaratory judgment 
action against the Tribe, the Robertsons, and the title company's 

agent, asking the District Court to quiet title to the real 

property in the Robertsons and to declare, among other things, that 

the Tribe had no right, title or interest in, nor any lien or 

encumbrance on the real property or the $20,000 escrow account. 

The complaint alleged that the Tribe's judgment was void as to the 

Wipperts because it was obtained through fraud and because the 

Wipperts had been deprived of their property--the collateral-- 

without due process of law. 

In its answer, the Tribe counterclaimed for $17,172, the 

amount still due on the Wipperts' loan, and raised as an 

affirmative defense the District Court's lack of jurisdiction over 

the Blackfeet Tribe. The Tribe asserted that it had not consented 

to the District Court's jurisdiction and that as a federally 

recognized Indian tribe, it could not be subjected to suit without 

the express consent of Congress. The Wipperts moved to strike this 

defense on the grounds that the Tribe had not raised it in its 

first response to the complaint, which was a motion to dismiss for 

failure to state a cause of action, filed on July 14, 1977 and 

denied for lack of a supporting brief. 

The District Court, by order dated September 19, 1977, granted 

the Wipperts' motion to strike the Tribe's affirmative defense, 

stating that the defense was waived as provided in Rules 12(g) and 

12(h), M.R.Civ.P., "with one exception, should counsel for the 

Blackfeet Tribe be able to show the court that immunity from suit 

is applicable herein and not waived, and therefore ought to be 
viewed as lack of jurisdiction over the subject matter rather than 

person, the defense will [be] and hereby remains available." 

In November 1979, after a hearing on pre-trial motions, the 

District Court dismissed the title company's agent and ordered that 

the escrowed funds, which then amounted to $23,444, be placed in an 

interest-bearing money market certificate pending further order of 

the court. The court filed its findings of fact and conclusions of 

law on August 19, 1981. 

In its 1981 memorandum, the District Court found that it had 

subject matter jurisdiction because the subject of the lawsuit was 

title to fee patent land; because it had jurisdiction to remove a 

cloud from title to such land; and because it had jurisdiction over 

the office of the Glacier County clerk and recorder, where the 

document purporting to create a lien against the land--the Tribe's 

tribal court judgment--had been filed. 

The court also found that the "judgment recordcg filed by the 

Tribe in the Glacier County clerk and recorder's office was 

lsinvalid and voidm as to the Wipperts and "expunged from this 

court's records," because it had not been reduced to judgment in 

the District Court. In general, the court determined, tribal court 

judgments are not entitled to full faith and credit in a state 

court because Article IV, Section 1 of the United States 

Constitution does not mention tribal court judgments. The court 

concluded, however, that if a state court were to rule that a 

tribal court judgment is invalid, it would "infringe on the right 

of reservation Indians to make their own laws and be guided by 
them;" that the State of Montana should give effect to a tribal 

court judgment as a matter of comity; and that the Blackfeet Tribe 

therefore had "a valid and enforceable judgment" and did not need 

a valid lien to reach the escrow account. 

Accordingly, the court entered judgment for the Tribe on 

September 17, 19Si, awarding- the Tribe $16,630 plus interest from 

the date of the tribal court judgment, attorney's fees in the 

amount of $4,566, and $23 in costs out of the escrowed funds. By 

then, the amount originally due the Tribe as a deficiency judgment 

had been reduced by amounts the Tribe had withheld from income from 

the Wippertsv 120 acres of trust land. The Wipperts appealed. 

We affirmed in part, holding that neither a sister state nor 

an Indian tribe could enforce a judgment in a Montana court without 

instituting an action in district court, pursuant to 5 26-3-203, 

MCA, but that even though the Tribe had not instituted such an 

action, the tribal court judgment was entitled to deference as a 

matter of comity. We also affirmed the District Court's award of 

judgment from the escrow fund, holding that the Wipperts, in their 

escrow agreement, had agreed that the fund could be used to satisfy 

any remaining tribal court judgment. Wimert I, 654 P.2d at 515. 

Because the District Court had merely adopted the Tribe's statement 

of the amount due from the Wipperts, however, we remanded the case 

for a hearing to determine the proper amount of the judgment. 

Wiwwert I1 

On March 23, 1983, the District Court heard testimony on the 

proper amount of the judgment. The Wipperts claimed that they owed 
the Tribe nothing because 128 bulls, cows, and calves should have 

been included in the sale but were unaccounted for, while the 220 

animals that were sold would have produced a higher price if they 

had been sold in Great Falls rather than Shelby and in the fall 

rather than in the spring. The Wipperts also asserted that the 

Tribe had not complied with the notice requirements of 5 30-9- 

504(3), MCA. 

The District Court filed its findings of fact, conclusions of 

law, and judgment on March 28, 1984. It found that the Wipperts 

had presented no evidence showing that they did not owe the Tribe 

$17,172 at the time the Tribe filed its counterclaim, and that due 

to credit given for income from the Wipperts' trust land, only 

$14,330 was due and owing at the time of the March 24, 1983 

hearing. 

The court concluded in its 1984 judgment that the sale of the 

Wipperts' cattle was commercially reasonable, under 9 30-9-507(2), 

MCA, because the reasonableness of a sale depends on the manner in 

which the sale is conducted, not the price received; that the steps 

taken by the Tribe to notify the Wipperts of the sale amounted to 

"actual noticen and met the requirements of § 30-9-504(3), MCA; and 

that it was authorized by 9 30-9-504 and -511, MCA, to award 

reasonable attorney's fees. 

The court therefore awarded the Tribe $14,331 plus interest 

from April 15, 1976, $13,465 in attorney's fees, and $23 in costs. 

On April 4, 1984, the court stayed execution pending the Wipperts' 

appeal. 
We reversed, holding that the Tribe was required to provide 

reasonable notice of the sale of collateral and that under 5 30-9- 

504(3), MCA, "reasonable noticeu means at least five days' prior 

written notice sf the time and place of sale. We concluded that 

the Tribe's letter of March 8, 1976, informing the Wipperts that it 

intended to proceed with foreclosure, did not satisfy the 

requirements of 5 30-9-504(3), MCA, and held that failure to 

provide reasonable notice precluded issuance of a deficiency 

judgment for the Tribe. We remanded the matter to the District 

Court for further proceedings consistent with our opinion. 

Wi~~ert I11 

On March 26, 1985, the Wipperts filed a memorandum of costs 

and disbursements in the District Court, reporting total costs of 

$1,447 for Wi~pert I and Wi~wert 11. The Tribe objected, pointing 

out that the Wipperts did not prevail in Wip~ert I and therefore 

should recover costs only for Wi~~ert 11. The Wipperts argued, in 

response, that they were the successful party in the litigation as 

a whole and therefore were entitled to recover their costs, 

pursuant to 5 25-10-104, MCA. 

On April 3, 1985, the District Court ordered the clerk of 

court to deliver to the Wipperts' attorney the funds that had been 

held in escrow since 1976. By then the original $20,000 deposit 

had accumulated a total of $13,444 in interest. On May 1, 1985, 

the court issued its findings of fact, conclusions of law, and 

judgment, vacating its previous judgments of September 17, 1981, 

and March 28, 1984, and restoring to the Wipperts $3,200 in trust 
income withheld by the Tribe between April 1976 and March 1983 in 

partial satisfaction of its judgment against the Wipperts, plus 

interest from April 1976 to the date of the order. A subsequent 

order, dated May 8, 1985, denied the Tribe's objection to the 

Wipperts' bill of costs and made it payable forthwith. 

In its May 1985 findings of fact and conclusions of law the 

court found that the tribal court's judgment was not properly filed 

in Glacier County records and did not become a lien or encumbrance 

against the Wippertsl real or personal property. Therefore, the 

court determined that, contraryto its September 1981 judgment, the 

Tribe had no claim to any part of the escrow account created in 

1976, nor to the income from the Wipperts' trust land, and the 

Wipperts were entitled to possession of the escrow funds, plus 

interest, in their entirety, "free of any claim or possible claim 

of any of the defendants in this action.I1 

Concluding that the Tribe was not entitled to judgment or 

relief as requested in its 1976 counterclaim, the District Court 

dismissed the counterclaim and set a hearing to establish the 

amount of money the Tribe had improperly withheld from the 

Wipperts' trust income since 1983. The court also ruled that both 

parties were entitled to attorney's fees, the Tribe because it had 

been forced to foreclose its security interest, and the Wipperts 

because they were "forced to secure the services of an attorney 

when the Tribe instituted this action in state court to obtain a 

deficiency judgment." Apparently the hearing to establish amounts 

due the Wipperts was never held. 
As to jurisdiction, the court repeated in its May 1, 1985, 

order the following language from its September 1981 judgment: 

This court has jurisdiction (subject matter jurisdiction) 

based on the fact that the subject matter of this lawsuit 

is the title to fee ~atent land, and its jurisdiction to 

quiet the title thereto or remove a cloud from the title 

thereto. Furthermore, the cloud to be removed is a 

document filed in the office of the Glacier County Clerk 

and Recorder, over which this court has jurisdiction. 

On June 11, 1985 the Tribe filed a motion to vacate the 

judgment pursuant to Rule 60(b) (4), M.R.Civ.P., based on its 

contention that the District Court lacked jurisdiction to order it 

to return the Wippertsl trust income, which it had collected within 

the exterior boundaries of the Blackfeet Reservation pursuant to 

the tribal court judgment of April 15, 1976. 

No response to this motion appears in the record. Eighteen 

months later, on November 13, 1986, the Tribe filed a motion to 

dismiss the case "with prejudice and in its entirety," for lack of 

subject matter jurisdiction. This motion, which the District Court 

granted in October 1992, is the origin of the appeal now before us. 

The Wipperts moved to strike the Tribe's motion to dismiss, 

contending that the District Court could not entertain a motion to 

dismiss after the time in which to appeal had expired, and that the 

Tribe, having asked the District Court in 1976 to enforce its 

tribal court judgment, could not now claim sovereign immunity. 

The Tribe argued, in response, that it had not submitted to 

the court's jurisdiction but instead had filed a record of its 

tribal court judgment with the Glacier County clerk and recorder 

and had then been named a defendant in the Wippertsl declaratory 
judgment action. Its counterclaim in that action merely requested 

that the tribal court judgment be paid out of the escrow account, 

which was the Wipperts' "only available remaining asset." 

The District Court heard oral argument on the Wipperts' motion 

to strike on January 7, 1987. Counsel were asked to brief the 

issue of the Tribe's sovereign immunity, and both parties filed 

briefs within thirty days. 

On October 10, 1992, the District Court granted the Tribe's 

motion to dismiss. In the memorandum accompanying its order, the 

court stated that tribal immunity is jurisdictional and is not 

waived by failure to raise it at trial or on appeal. Further, the 

court found that Indian tribes are sovereign entities, generally 

immune from suit, and that this immunity is co-extensive with that 

of the United States. "Thus, absent an express waiver or consent 

to suit," the court concluded, "this court has no jurisdiction.'* 

The Wipperts appealed, raising three issues, which we have 

restated as follows. 

1. Whether the District Court erred in considering 

a motion to dismiss filed eighteen months after the entry 

of a final judgment. 

2. Whether the Tribe's 1986 motion to dismiss, and 

the District Court's order granting that motion, were 

barred by the doctrine of res judicata. 

3. Whether the District Court erred in concluding 

that the Tribe did not waive sovereign immunity by acting 

in its corporate capacity. 

The Tribe raises a fourth issue: whether, regardless of the 

Tribe's immunity, a state district court has subject matter 

jurisdiction over a civil matter involving the Blackfeet Tribe and 
a tribal member and arising within the exterior boundaries of the 

Blackfeet Reservation. As we affirm the District Court's ruling, 

which was based on its conclusion that the Tribe is immune to suit, 

we need not decide whether the District Court otherwise lacked 

subject matter jurisdiction to declare whether the Tribe had an 

interest in or lien on the WippertsP real or personal property. We 

note in passing, however, that because Montana has not assumed 

civil jurisdiction over causes of action arising on the Blackfeet 

Reservation, under P.L. 280 and the Indian Civil Rights Act, civil 

jurisdiction presumptively lies in the tribal court. See In re 

Marriage of Wellman (Mont. 1993), 852 P.2d 559, 50 St.Rep. 461, and 

the cases cited therein. 

I 

Did the District Court err in considering a motion to dismiss 

filed eighteen months after entry of judgment? 

The District Court failed to act on the Tribe's timely motion 

for relief from judgment; therefore, that motion was deemed denied 

after forty-five days, or approximately on July 26, 1986, pursuant 

to Rule 60(c), M.R.Civ.P. Once a motion has been deemed denied, 

the court loses jurisdiction. In re Marriage of McKinnon (1992), 

251 Mont. 347, 350, 825 P.2d 551, 553. Different rules apply, 

however, to the Tribe's motion to dismiss the entire action for 

lack of subject matter jurisdiction. 

Jurisdiction--the right to determine and hear an issue-- 

transcends procedural considerations and involves the fundamental 

power and authority of the court itself. Corban v. Corban (1972), 
161 Mont. 93, 584 P.2d 985. It is well settled that the issue of 

subject matter jurisdiction may be invoked at any time in the 

course of a proceeding, and that once a court determines that it 

lacks subject matter jurisdiction, it can take no further action in 

the case other than to dismiss it. Rule 12(h)(3), M.R.Civ.P.; In 

re Marriage of Lance (1984), 213 Mont. 182, 690 P.2d 979. See also 

Big Spring v. Blackfeet Tribe (1978), 175 Mont. 258, 573 P.2d 655 

(in an action against the Blackfeet Tribe by one of its members, we 

vacated a default judgment and remanded for further proceedings 

because the district court had entered judgment without ruling on 

the Tribe's motion to set aside the default for deficient service 

and lack of subject matter jurisdiction). 

Thus, the Tribe's 1986 motion to dismiss is not subject to any 

time constraint. The fact that it was filed eighteen months after 

judgment entered does not affect its validity, nor does the 

District Court's six-year delay in ruling on the motion deprive it 

of jurisdiction. We conclude that the District Court did not err 

in considering the Tribe's motion to dismiss the case for lack of 

subject matter jurisdiction or in ruling on it six years later. 

I I 

Did the doctrine of res judicata bar the Tribe's 1986 motion 

to dismiss and the District Court's order granting that motion? 

The Wipperts contend that the District Court's order of 

October 10, 1992, is barred by res judicata, but their argument 

actually addresses the Tribe's right to raise the issue of 

sovereign immunity in their 1986 motion to dismiss the case for 
lack of subject matter jurisdiction. 

The Wipperts cite Wellman v. Wellman (1982) , 198 Mont. 42, 643 

P.2d 573, in which we adopted the following rule from Royal 

Coachman Color Guard v. Marine Trading (Me. 1979) , 398 A. 2d 382, 

Once there has been full opportunity to present an issue 

for judicial decision in a given proceeding, including 

those issues that pertain to a court's jurisdiction, the 

determination of the court in that proceeding must be 

accorded finality as to all issues raised or which fairly 

could have been raised, else judgments might be attacked 

piecemeal and without end. 

The issue in Wellman was whether the district court properly 

dismissed the plaintiffs' 1981 quiet title action. The plaintiffs 

claimed that the same court's 1971 judgment, which designated one 

of the defendants the sole owner of the disputed property, was void 

because it granted relief beyond the scope of that defendant's 

pleading in the 1971 action. We concluded that the plaintiffs had 

had a full opportunity to litigate the voidness issue in 1971, when 

the court denied their motion to set aside default and judgment in 

favor of the defendant, and held that dismissal of the 1981 action 

was proper. 

Here, the Wipperts assert that the Tribe's 1986 motion to 

dismiss is barred because the Tribe had an opportunity to raise the 

issue of sovereign immunity in Wiwwert I but failed to do so. The 

record shows, however, that the Tribe did raise sovereign immunity 

as a defense in 1977, in its answer to the Wipperts' original 

complaint. The District Court granted the Wipperts' motion to 

strike the defense but specifically reserved the issue of sovereign 
immunity for later consideration, in its order of September 19, 

1977. 

At no time during the subsequent ten years did the Tribe have 

a "full opport~nity*~ tolitigate the issue of sovereign immunity. 

Although the District Court announced in its 1981 judgment, and 

repeated in its 1985 judgment, that it had jurisdiction to quiet 

title to fee patent land, and to wexpungew the record of tribal 

court judgment filed in the Glacier County clerk and recorder's 

office, it did not rule on the issue of the Tribe's immunity to 

suit until 1992. Thus the doctrine of res judicata, which is 

intended to prevent a party from relitigating a matter that he or 

she has already had an opportunity to litigate, Brault v. Smith 

(1984), 208 Mont. 21, 679 P.2d 236, does not apply in this case. 

I11 

Did the District Court err in concluding that the Tribe did 

not waive sovereign immunity by acting in its corporate capacity? 

Indian tribes have long been recognized as possessing the 

common-law immunity from suit traditionally enjoyed by sovereign 

powers, subject to the plenary control of Congress. Santa Clara 

Pueblo v. Martinez (1978), 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 

L.Ed.2d 106, 115. Without tribal consent or congressional 

authorization, an Indian tribe is exempt from suit. United States 

v. U.S. Fidelity and Guaranty Co. (l94O), 309 U.S. 506, 512, 60 

S.Ct. 653, 656, 84 L.Ed. 894, 899. A tribe may consent to suit 

only by an unequivocally expressed waiver of its sovereign 

immunity. Santa Clara Pueblo, 436 U.S. at 58. 
Other courts, following Santa Clara weblo, have endorsed the 

principle that an Indian tribe cannot waive its immunity by 

implication. In American Indian Agricultural Credit Consortium, 

Inc. v. Standing Rock Sioux Tribe (8th Cir. 1985), 780 F.2d 1374, 

for example, the Eighth Circuit overruled the district court's 

determination that the tribe had impliedly waived sovereign 

immunity in a contract action. "Nothing short of an express and 

unequivocal waiver," the Standinq Rock court held, "can defeat the 

sovereign immunity of an Indian nation." 780 F.2d at 1379. See 

also Chemehuevi Indian Tribe v. California State Bd. of 

Equalization (9th Cir. 1985), 757 F.2d 1047, in which the Ninth 

Circuit decided that the tribe's initiation of a declaratory 

judgment action against a state agency did not constitute consent 

to the agency's counterclaim. 

The Wipperts argue that the Tribe consented to suit in its 

corporate charter, ratified on August 15, 1936, which gave the 

Tribe the power Itto sue and be sued in courts of competent 

jurisdiction." Federal courts of appeal, however, generally have 

concluded that a Itsue and be sued" clause in a tribal corporate 

charter cannot serve as a waiver of sovereign immunity if the tribe 

acted only in its constitutional or governmental capacity. See, 

e. g., Ramey Construction Co., Inc. v. Apache Tribe of the Mescalero 

Reservation (10th Cir. l982), 673 F.2d 315, which held that Rameyos 

breach of contract claims were properly dismissed based on the 

tribets sovereign immunity, despite a "sue or be suedw clause in 

the tribe's corporate charter, because the tribe had acted as a 
constitutional entity, not as a corporate entity. 

The Wipperts contend that the Tribe waived its immunity in 

1977 when it filed a claim, in federal as well as state court, for 

the $17,172 remaining unpaid after the sale of the collateral. In 

that claim the Tribe described itself as "a federally chartered 

corporationm organized pursuant to the Indian Reorganization Act of 

1934, and stated that its credit committee, which had made the 

original loan to the Wipperts, had been organized as a part of its 

"corporate business." 

The Tribe's view, as expressed in its January 1987 brief, is 

that in its transactions with the Wipperts, who were tribal 

members, it acted as a "political governing body," pursuant to 

section 16 of the Indian Reorganization Act. The chartered tribal 

corporation formed under section 17 of the Indian Reorganization 

Act is, the Tribe argues, a separate entity through which the 

tribal government conducts the business of the Tribe, as opposed to 

its governmental affairs. 

According to the Tribe, its credit program is not a section 17 

business venture but a means of promoting ranching and farming 

development by allowing tribal members to borrow specifically 

appropriated federal funds; earnings from these loans are not used 

as profit but instead are used to repay the federal government. 

Moreover, the credit program has no corporate capacity separate 

from the Tribe, which exercises direct authority over the program 

and the money it earns. 

The District Court adopted the Tribe's view of its credit 
program, finding that it sloperates under the direct auspices of the 

Blackfeet tribal government" and "has no separate corporate 

capacity," and that the Tribe exercises direct authority over it. 

The court concluded that when the credit committee loaned the 

Wipperts money in 1974 it was acting as an instrumentality of the 

tribal government and therefore is immune from suit under the 

doctrine of sovereign immunity. 

We agree. The Indian Reorganization Act of 1934 authorizes 

two distinct legal entities, one governed by a constitution and the 

other, by a corporate charter. 25 U.S.C. 476, 477. Sovereign 

immunity applies to the constitutional entity but not to the 

corporate entity, for policy reasons succinctly described in 

Atkinson v. Haldane (Alaska 1977), 569 P.2d 151, 174-75: 

There is little doubt that the claims to sovereign 

immunity have been allowed in the courts in order to 

protect the limited and irreplaceable resources of the . -A_-: -A. Indian tribes from larye judYments. nuwe?vwr, rt.rrbt. 

application of the immunity principle could severely 

retard the tribe's economic growth in a modern business 

world. Recognition of two legal entities, one with 

sovereign immunity, the other with the possibility for 

waiver of that immunity, would enable the tribes to make 

maximum use of their property. The property of the 

corporation would be at risk, presumably in an amount 

necessary to satisfy those with whom the tribe deals in 

economic spheres. Yet some of the tribal property could 

be kept in reserve, safe from a judgment execution which 

could destroy the tribe's livelihood, in recognition of 

the special status of the Indian Tribe. 

Here, however, the Blackfeet constitution and corporate 

charter, taken together, do not in themselves create two distinct 

entities. First, the constitution, which was approved by the 

Secretary of the Interior in 1935 pursuant to section 16 of the 

Indian Reorganization Act, designates the Tribal Business Council 
as the Tribe's governing body and authorizes it to delegate any of 

its powers to a subordinate body. Accordingly, the Tribal Council 

appoints and retains complete authority over the credit committee, 

which loaned money to the Wipperts and thus became a defendant in 

the Wipperts' 1976 declaratory judgment action. 

Second, the Tribe's corporate charter, approved pursuant to 

section 17 of the Indian Reorganization Act, assigns to the Tribal 

Council corporate powers that include the authority to borrow money 

from the Indian Credit Fund and loan it to tribal members, as well 

as the power to sue and be sued in courts of competent 

jurisdiction. In assuming these powers, the Tribal Council did not 

waive its sovereign immunity in the express terms required by Santa 

Clara Pueblo, 430 U.S. at 58. 

We hold that the District Court, having before it the 

Blackfeet constitution and corporate charter, did not err in 

finding that the credit committee is merely an instrumentality of 

the Tribal Council. 

The Arizona Court of Appeals conducted a similar analysis in 

S. Unique, Ltd. v. Gila River Pima-Maricopa Indian Community (Ariz. 

App. 1983), 674 P.2d 1376. The court held that a commercial farm 

operated by the Pima-Maricopa Community, or tribe, shared the 

tribe's immunity because the farm was a subordinate economic 

organization of the tribe acting in its constitutional capacity. 

Responding to the appellant's assertion that the constitutional 

Pima-Maricopa Community should be distinguished, under the Indian 

Reorganization Act, from the Indian Corporation, the Arizona court 
stated that: 

[tlhe distinction to be made is not between commercial 

and governmental functions in order to determine the 

availability ofthe defense of tribal sovereign immunity. 

The fact that the Community was engaged in a proprietary 

function through the auspices of the [farm] is 

immaterial. The Community as the governmental 

organization of the tribe can, and in this case did, 

operate a commercial farming venture . . . as a 

subordinate economic organization of the Community. This 

does not waive tribal sovereign immunity. 

We reach the same conclusion with respect to the status of the 

Blackfeet credit committee: it is, as the District Court correctly 

determined, a subordinate organization of the Tribal Council, to 

vhhich the Tribal Council has delegated its authority to borrow 

money from the Indian Credit Fund and loan it to tribal members. 

The Ninth Circuit specifically ruled on the issue of Blackfeet 

tribal immunity in a case involving a credit committee transaction. 

the credit committee asked the Bureau of Indian Affairs (BIA) to 

attach funds in tribal member Kennerly's Individual Indian Money 

account, as partial repayment of money Kennerly had borrowed from 

the tribe. The account contained income from Kennerly's trust 

land. The BIA transferred money from Kennerly's account to the 

tribe, and Kennerly brought an action against the tribe, members of 

the tribe's credit committee, and BIA officers to recover the 

money. Without distinguishing between the credit committee and the 

tribal government, the Ninth Circuit affirmed the district court's 

dismissal of the tribe on grounds of sovereign immunity. 
Conclusion 

The Blackfeet Tribe loaned the Wipperts a substantial sum of 

money and obtained a valid judgment in the Blackfeet Tribal Court 

after the Wipperts defaulted on the loan. We upheld the validity 

of that judgment in Wiuuert I, 654 P.2d at 515, and we reaffirm 

that holding now. As the Tribe made the loan in its constitutional 

capacity, it did not waive its immunity to the Wipperts' 1977 

declaratory judgment action. 

When the Wipperts asked the District Court to declare that the 

Tribe had no interest in or lien on any assets they possessed after 

the sale of their collateral, they were, in effect, attempting to 

prevent the Tribe from obtaining a lien, based on the deficiency 

judgment to which the Tribe appeared to be entitled, against the 

land they had sold to the Robertsons or the $20,000 fund set aside 

in conjunction with that sale. In the interest of protecting 

tribal assets--the money still owed by the Wipperts--the Tribe had 

no choice but to resist this declaration. It was then, in 1977, 

that the Tribe raised the legitimate defense of sovereign immunity, 

acknowledged at last by the District Court in its order of October 

10, 1992. 

We hold that the Tribe did not waive its immunity by loaning 

the Wipperts money or by defending the Wipperts' 1977 declaratory 

judgment action, and that the District Court did not err in 

dismissing the Wipperts' action against the Tribe for lack of 

subject matter jurisdiction, based on the Tribe's sovereign 

immunity. In reaching this conclusion, we do not overrule our 
adoption, in Wi~~ert I, of the rule that tribal court judgments are 

to be treated with the sane deference shown decisions of foreign 

nations, as a matter of comity. 

AFFIRMED. 

We concur: 

Chief Justice 

Justice James C. Nelson did not participate in this decision. 

Chief Justice J.A. Turnage specially concurred. 

I concur in the majority opinion affirming the District Court 

for the reason that the District Court did not have subject matter 

jurisdiction. I do not agree with all that is, unnecessarily, said 

- 

in the majority opinion. 
August 25, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

SELDON S. FRISBEE 

Attorney at Law 

P.O. Box 1998 

Cut Bank, MT 59427-0547 

amicusn 

Jean Bear Crane, Attorney at Law 

Blackfeet Legal Department 

P. 0. Box 849 

Browning, MT 59417 

DARRELL T. PETERSON 

Attorney at Law 

Box 10 

Cut Bank, MT 59427 

Amicus Attorneys: 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

-.. 

BY: