2012 WL 12897110
Only the Westlaw citation is currently available.
United States District Court,
D. North Dakota, Northwestern Division.
Petro-Hunt, L.L.C., a Deleware Limited Liability Company, Plaintiff,
Edward “Solly” Danks and Georgiana Danks, husband and wife, and the Honorable Vance Gillette, Chief Judge of the District Court, Fort Berthold Indian Reservation, Defendants.
Case No. 4:12-cv-078
Filed 11/01/2012



Daniel L. Hovland, District Judge United States District Court
*1 Before the Court is Defendant Vance Gillette’s motion to dismiss filed on July 18, 2012. See Docket No. 4. The Plaintiff filed a response in opposition to the motion on August 8, 2012. See Docket No. 8. Defendants Edward Danks and Georgiana Danks did not submit any motion or a response. For the reasons set forth below, the Court grants Defendant Gillette’s motion.



The Plaintiff, Petro-Hunt, L.L.C. (“Petro-Hunt”), is a non-Indian oil and gas company organized under the laws of the State of Delaware with its principal place of business located in Dallas, Texas. Petro-Hunt’s sole member is the William Herbert Hunt Trust Estate, a Texas trust with its principal place of business in Dallas, Texas.

The Defendants, Edward “Solly” Danks and Georgiana Danks (“Danks”), are enrolled members of the Three Affiliated Tribes. Defendant Vance Gillette (Gillette) is the Chief Judge of the Fort Berthold District Court (Tribal Court) of the Three Affiliated Tribes of the Fort Berthold Reservation (“Reservation”). Judge Gillette is sued in his official capacity.

The Danks own the surface rights in fee simple on certain undescribed land located on the Reservation. Petro-Hunt leased the subsurface mineral rights underlying the Dank’s land from a third party. The record does not reflect whether the third party who owns the mineral rights is a tribal member. Petro-Hunt has undertaken drilling operations on the Dank’s land, including the construction of a well pad and access road. The Danks and Petro-Hunt have been unable to reach an agreement as to the amount of compensation due for the damage to the surface estate. The Danks have sued Petro-Hunt in Tribal Court seeking to resolve the dispute.

Petro-Hunt filed this action on June 15, 2012, seeking a declaration that the Tribal Court lacks personal jurisdiction over Petro-Hunt and lacks subject matter jurisdiction over the dispute. Petro-Hunt is seeking injunctive relief prohibiting the Tribal Court from adjudicating this dispute.

The Danks filed an answer on July 10, 2012. Gillette, acting pro se without assistance from the tribal legal department, filed a motion to dismiss on July 18, 2012. Petro-Hunt filed a response to the motion on August 8, 2012.



As a preliminary matter, it is noted that the only matter presently before the Court is Gillette’s motion to dismiss. Gillette raises a number of issues including tribal sovereign immunity. Petro-Hunt argues tribal sovereign immunity does not bar a suit for prospective relief. Petro-Hunt has not moved for a preliminary injunction under Rule 65, and that issue is not presently before the Court.

Sovereign immunity is a jurisdictional question which the court may raise sua sponte. See Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1044 (8th Cir. 2000) (internal citations omitted); Amerind Risk Mgmt. Corp v. Malaterre, 633 F.3d 680, 686 (8th Cir. 2011). “As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Okla. v. Mfg. Technologies, Inc., 523 U.S. 751, 754 (1998) (internal citations omitted). “As sovereigns or quasi sovereigns, the Indian Nations [enjoy] immunity ‘from judicial attack’ absent consent to be sued.” Id. at 757 (citing United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 513-14 (1940)). Sovereign immunity is a jurisdictional prerequisite which can be raised at any stage of the proceedings. Hagen, 205 F.3d at 1044.

*2 In this case, Congress has not authorized a suit or abrogated tribal immunity. Gillette has not taken any action in the Tribal Court proceedings. His only action has been filing a motion to dismiss in federal Court. Nor has Gillette, as Chief Judge of the Fort Berthold Tribal Court, consented to be sued. The Tribal Court’s sovereign immunity remains intact. With tribal sovereign immunity intact, the Court is compelled to dismiss Gillette from the action at this stage of the litigation.

The jurisdictional dilemma presented in this case is not capable of quick or easy resolution. The issue will require a determination as to whether tribal court jurisdiction exists over a nonmember’s oil and gas exploration activities on tribal owned fee land located on the reservation. Such a determination is unquestionably complex. See Cohen’s Handbook of Federal Indian Law § 7.02[1] [a], at p. 600 (Nell Jessup Newton ed., 2012). The jurisdictional analysis will require a careful review of the United States Supreme Court’s opinion in Montana v. United States and its exceptions, along with any case law from throughout the country which may have addressed the issue. See Montana v. United States, 450 U.S. 544, 565 (1981). As a general rule, “absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances.” Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997). Montana is the landmark case which established that Indian tribes lack civil authority over the conduct of nonmembers subject to two limited exceptions. In other words, the presence of inherent tribal authority over non-members is the exception, not the rule. The first exception states that, “[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” 450 U.S. at 565. The second exception states that “[a] tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” 450 U.S. at 566. As noted, the Danks land in question is located on the Reservation but it is fee land. The Danks are tribal members but Petro-Hunt is a non-member. Suffice it to say there are a multitude of complex factual and legal issues which are raised by this scenario. There appears to be no federal or state case law directly on point. The Court will need to give the parties an opportunity to research and address the Supreme Court’s pronouncement in Montana and whether any of the Montana exceptions apply.



The motion to dismiss (Docket No. 4) is GRANTED. The case is dismissed at this stage only as to Defendant Vance Gillette, Chief Judge of the District Court, Fort Berthold Indian Reservation.


All Citations
Slip Copy, 2012 WL 12897110