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, 1993Justice John Conway Harrison delivered the Opinion of the Court.

Loretta andVerlin 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 furtherproceedings. Wippert v. Blackfeet Tribe (1982), 201Mont. 299, 654 P.2d 512 (Wiwwert I). On remand, the District Court entered judgment for theTribe and the Wipperts appealedagain. We reversed. Wippert 

### v. Blackfeet Tribe (19851, 215 Mont. 85, 695 P.2d 461 (Wiwwert 11). The Tribe thenmoved todismiss for lackof subject matter jurisdiction, leading to the appeal now before us (Wiw~ert 111). Following is thehistory 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 loanwas securedby "all cattle now owned orhereafter acquired by the [Wipperts],I*and the security agreement provided that the debtors would have at least five days1notice of any sale of the collateral. The loan, plus interest at ten percent, was due onNovember 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 judgmentbalance. 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 dueon theWipperts' loan. Twomonths later,the Wipperts agreed to sell their ranch to a third party (the Robertsons), but when theRobertsons discovered the Tribe's notice of judgmentthey refused to accept title. TheWipperts thenagreed 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, themoney was to be used for that purpose; otherwise, it was to be returned to the Wipperts. Because of this agreement, a title insurancepolicy 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 judgmentaction against the Tribe, the Robertsons, and the title company's agent, asking the District Court to quiet title to the real property intheRobertsons and todeclare,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 judgmentwas 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 jurisdictionover 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 suitwithout the express consent of Congress. TheWipperts moved to strikethis defense on the grounds that the Tribe had not raised it in its first response to the complaint, which was amotion to dismiss for failure to state a cause of action, filed on July 14, 1977 and denied for lack of a supportingbrief. 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 asprovided 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 beviewed 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 thetitlecompany's agentand ordered that the escrowed funds,which thenamounted to $23,444,be placed inan interest-bearingmoneymarket certificatepending furtherorder of the court. The court filed its findings of fact and conclusionsof law on August 19, 1981. In its 1981memorandum, the District Court found that it had subjectmatter jurisdictionbecause the subject of the lawsuitwas title to fee patent land;because it had jurisdiction to remove a cloud fromtitle to such land;andbecause ithad jurisdictionover the office of the Glacier County clerk and recorder, where the documentpurporting to create a lienagainst 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 lsinvalidand voidm as to the Wipperts and "expunged from this court's records," because it had not been reduced to judgment in theDistrict Court. Ingeneral, the courtdetermined, 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 bythem;" 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 "avalid 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 reducedby amounts the Tribehad withheld from income from the Wippertsv120 acres of trust land. The Wipperts appealed. We affirmed inpart, holding that neither a sister state nor an Indian tribe could enforce a judgment inaMontana courtwithout 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 couldbe used to satisfy any remaining tribal court judgment. Wimert I, 654 P.2d at 515. Because the District Courthad merely adopted theTribe's statement of the amountdue from theWipperts, 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. TheWipperts claimed that they owedthe 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 $17,172at 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 reasonablenessof a sale depends on themanner in which the sale isconducted,not theprice received; that the steps taken by the Tribe to notify the Wipperts of the sale amounted to "actualnoticenandmet 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 theWipperts' 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, "reasonablenoticeumeans at least five days' prior written notice sf the time and place of sale. We concluded that the Tribe's letterofMarch 8,1976, informingtheWipperts 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 furtherproceedings 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 forWi~pert I and Wi~wert 11. The Tribe objected,pointing out that the Wipperts did not prevail in Wip~ertI and therefore should recover costs only forWi~~ert 11. The Wipperts argued, in response, that they were the successfulparty in the litigationas

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 theWipperts' 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 trustincome 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 judgmentwasnotproperly filed in Glacier County records and did not become a lien or encumbrance against the Wippertslreal or personal property. Therefore, the courtdetermined 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 thatboth parties were entitled to attorney's fees, the Tribebecause 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 thehearing to establishamounts 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: Thiscourthas jurisdiction (subjectmatter jurisdiction) based on the fact that the subject matter of this lawsuit is the title to fee ~atent land,and its jurisdictionto 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 jurisdictionto order it to returntheWippertsltrust income,which it had collectedwithin 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 "withprejudice and in its entirety," for lack of subjectmatter jurisdiction. Thismotion,which theDistrict Court granted inOctober 1992, is the originof the appealnowbefore us. The Wipperts moved to strike the Tribe's motion to dismiss, contending that the District Court could not entertainamotion to dismiss after the time inwhich 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 Wippertsldeclaratoryjudgment action. Its counterclaim in that actionmerely requested that the tribal court judgment be paid out of the escrow account, which was the Wipperts' "only available remaining asset." TheDistrict Courtheard oral argument on theWipperts' 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 amotion todismiss filedeighteen months after the entry of a final judgment. 2. Whether the Tribe's 1986motion 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 theTribedid notwaive sovereignimmunityby 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 anda tribal member and arising within the exterior boundaries of the Blackfeet Reservation. As we affirm the District Court's ruling, whichwas based on its conclusion that the Tribe is immuneto 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 theWippertsPreal orpersonal 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 IndianCivil Rights Act, civil jurisdictionpresumptively 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 amotion 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,thatmotionwas deemed denied after forty-fivedays, or approximatelyonJuly 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-- transcendsprocedural considerations and involves the fundamental power and authorityof the court itself. Corbanv. 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 cantakeno furtheraction in the case other than to dismiss it. Rule 12(h)(3), M.R.Civ.P.; In

reMarriage of Lance (1984), 213 Mont. 182, 690P.2d 979. Seealso Big Spring v. Blackfeet Tribe (1978), 175 Mont. 258, 573 P.2d 655

(in an action against the BlackfeetTribeby one of itsmembers,

### 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 subjectmatter jurisdiction). Thus, the Tribe's 1986 motion todismiss isnot subjectto any time constraint. The fact that it was filed eighteenmonths after judgment entered does not affect its validity, nor does the District Court's six-yeardelay in ruling on themotion 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 subjectmatter jurisdiction or in ruling on it sixyears later. I I Did the doctrine of res judicata bar the Tribe's 1986motion 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 forlack of subjectmatter jurisdiction. TheWipperts citeWellmanv. Wellman (1982)

## , 198Mont. 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 therehas been full opportunitytopresent an issue for judicial decision in a given proceeding, including those issues thatpertain to a court's jurisdiction, the determination of the court in that proceeding must be accorded finalityas to all issuesraised orwhich 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 theplaintiffs' 1981 quiet title action. Theplaintiffs claimed that the same court's 1971 judgment,which designated one of thedefendants the sole owner of thedisputedproperty, wasvoid because it granted relief beyond the scope of that defendant's pleading in the 1971 action. We concluded that theplaintiffs had had a full opportunityto litigatethevoidness 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 1981action

was proper. Here, the Wipperts assert that the Tribe's 1986 motion to dismiss isbarredbecause theTribehad an opportunityto raise the issue of sovereign immunity inWiwwert Ibut 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 thedefensebut specificallyreserved the issue of sovereignimmunity for later consideration, in its order of September 19, 1977. At no time during the subsequent tenyears did the Tribehave

a "full opport~nity*~ to litigate 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 wexpungewthe 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 immunityby 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 Pueblov. Martinez (1978), 436U.S. 49, 58, 98S.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. InAmerican Indian Agricultural Credit Consortium, Inc. v. Standing Rock Sioux Tribe (8thCir. 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 StandinqRock court held, "candefeat 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, generallyhave concluded that a Itsueand be sued" clause in a tribal corporate charter cannot serveas awaiver of sovereignimmunity if the tribe acted only in its constitutional or governmental capacity. See,

e.g., Ramey ConstructionCo., Inc. v. Apache Tribe of theMescalero Reservation (10thCir. l982), 673 F.2d 315,whichheld thatRameyos breach of contract claims were properly dismissed based on the tribetssovereign immunity, despite a "sue or be suedw clause in the tribe's corporate charter, because the tribe had acted as aconstitutional entity,not as a corporate entity. The Wipperts contend that the Tribe waived its immunity in 1977 when it filed a claim, in federal aswell as state court, for the $17,172 remainingunpaid after the sale of the collateral. In that claim the Tribe described itself as "a federally chartered corporationmorganized pursuant tothe IndianReorganizationAct 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 IndianReorganizationAct. 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 thebusiness of the Tribe,as opposed to its governmental affairs. According totheTribe, its creditprogram isnot 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 creditprogram, findingthat it sloperatesunder thedirect auspicesof 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 twodistinct legal entities, onegovernedby a constitutionand 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 tomake 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 froma 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 IndianReorganizationAct, designates the Tribal Business Councilas the Tribe's governing body and authorizes it to delegate any of itspowers to a subordinatebody. Accordingly, the Tribal Council appoints and retains completeauthorityover 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 ReorganizationAct, assigns to the Tribal Council corporatepowers that includetheauthority toborrowmoney from the IndianCredit Fund and loan it to tribal members, as well

as the power to sue and be sued in courts of competent jurisdiction. Inassumingthesepowers, theTribal Councildid not waive its sovereign immunity inthe express terms requiredby 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. GilaRiver Pima-Maricopa IndianCommunity (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 ReorganizationAct, from the IndianCorporation,theArizona courtstated that: [tlhe distinction to be made is not between commercial and governmental functions in order to determine the availabilityofthedefenseof tribal sovereignimmunity. The fact that the Communitywas engaged in aproprietary 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 subordinateeconomic organizationof theCommunity. This does not waive tribal sovereign immunity.

We reachthe same conclusionwith respect to the statusof the Blackfeet credit committee: it is,as the DistrictCourt 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. TheNinth Circuit specificallyruled on the issueof Blackfeet tribal immunity ina case involvinga credit committeetransaction.

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 anaction against the tribe,members of the tribe's credit committee, and BIA officers to recover the money. Without distinguishing between the credit committeeand the tribal government,theNinth 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 thatholding 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 todeclare that the Tribehad no interest inor lienon any assets theypossessed 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--themoney still owed by theWipperts--the Tribehad no choice but to resist this declaration. It was then, in 1977, that the Tribe raised the legitimate defense of sovereign immunity, acknowledged at lastby 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 ouradoption, inWi~~ert 

### I, of the rule that tribal court judgmentsare 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 thisdecision.

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

## - in the majority opinion.August25, 1993 CERTIFICATEOFSERVICE Ihereby certify that thefollowingorderwas sentby United Statesmail, prepaid, tothefollowing named:

SELDON S. FRISBEE AttorneyatLaw P.O. Box 1998 CutBank,MT59427-0547 amicusn

JeanBearCrane, Attorney atLaw Blackfeet LegalDepartment P. 0.Box 849 Browning,MT 59417

DARRELL T. PETERSON Attorneyat Law Box 10 CutBank,MT 59427 AmicusAttorneys: EDSMITH CLERKOFTHE SUPREME COURT STATEOFMONTANA

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