Diver v. Peterson

524 N.W.2d 288, 1994 Minn. App. LEXIS 1194, 1994 WL 664000
CourtCourt of Appeals of Minnesota
DecidedNovember 29, 1994
DocketC3-94-942
StatusPublished
Cited by7 cases

This text of 524 N.W.2d 288 (Diver v. Peterson) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diver v. Peterson, 524 N.W.2d 288, 1994 Minn. App. LEXIS 1194, 1994 WL 664000 (Mich. Ct. App. 1994).

Opinions

OPINION

KLAPHAKE, Judge.

Appellants Lynn R. and Mary J. Diver (the Divers) brought this defamation action against respondent Dennis J. Peterson, individually and in his capacity as tribal attorney for the Fond du Lac Band of Lake Superior Chippewa (the tribe). The Divers allege that Peterson knowingly and falsely reported to the media that the tribe had fired them for stealing tribal property. The Divers claim they were actually fired because they reported to the police incidents of child sexual abuse at the tribal school where they worked. Peterson moved to dismiss the complaint for lack of subject matter jurisdiction because of the tribe’s sovereign immunity. Alternatively, Peterson moved for summary judgment.

Following a hearing, the district court granted summary judgment for Peterson and dismissed the complaint with prejudice. The court concluded that it lacked jurisdiction because the complaint arose out of an intra-tribal matter where the tribe’s sovereign immunity extended to Peterson, its attorney. We affirm.

FACTS

In the summer of 1993, the Divers worked as custodians at the tribal school located on the reservation. The Divers were enrolled members of the tribe. Lynn Diver had previously been employed at the tribal school as a daycare worker.

According to Mary Diver’s affidavit, she saw a note pad on a teacher’s desk while cleaning a classroom on June 18, 1993. She noticed her nephew’s name on the note pad and read the notes. Her sister Lynn Diver saw the note pad in the same location three days later and also read it. According to the Divers, the notes referred to incidents of sexual abuse involving their nephew, a student at the school.

The Divers contacted the police to report their nephew’s allegation that an older student had sexually molested him. On July 21, at the request of the police, the Divers gave the notes to the police. Ater the Divers informed school officials of their police contacts, the school superintendent fired them for “unauthorized appropriation and dissemination of confidential records pertaining to a student at the school.”

On July 29 and 30, three Duluth television stations reported Peterson’s statements that the tribe had fired the Divers because they had stolen school property. The Divers claimed they first learned through the television broadcasts that tribal school officials had accused them of theft. Peterson and the tribe, on the other hand, claim that the Divers first brought the issue to the media’s attention.

The following week, on August 5, a Clo-quet newspaper quoted Peterson’s statement that the Divers had stolen school records from a locked office and were “bootstrapping this incident to the child abuse issue in order to justify their actions.” The Divers sued Peterson individually for defamation on September 7. On September 23, the tribe’s gov[290]*290erning body retroactively approved Peterson’s statements on behalf of the tribe.

ISSUES

I. Did the district court err in concluding that the Indian tribe’s sovereign immunity extended to its attorney and precluded the state court’s subject matter jurisdiction for a defamation suit?

II. Is a tribal attorney entitled to absolute immunity from suit for defamation for statements made in the course of his duties as the tribal spokesperson?

ANALYSIS

I. TRIBAL SOVEREIGN IMMUNITY

The Divers claim the district court erred in concluding that this action arises out of intra-tribal activities over which the tribe has sovereign immunity and for which the tribe made no express waiver of sovereign immunity. The Divers claim that the defamatory statements are actionable because they were published outside of the reservation to a non-Indian public and because state and federal laws limit the tribe’s ability to authorize Peterson’s defamatory statements.

As a federally recognized Indian tribe, the tribe has sovereign authority over intra-tribal matters. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978) (tribal lawsuit against Indian tribe under federal Indian Civil Rights Act barred by tribe’s sovereign immunity from suit).

Indian tribes are “distinct, independent, political communities, retaining their original natural rights” in matters of local self-government. Although no longer “possessed of the full attributes of sovereignty,” they remain a “separate people, with the power of regulating their internal and social relations.” They have power to make them own substantive law in internal matters, and to enforce that law in their own forums[.]

Id. at 55-56, 98 S.Ct. at 1675 (citations omitted). Tribes retain original jurisdiction over members and territory unless Congress acts to limit tribal sovereignty. Id. at 56, 98 S.Ct. at 1676; see also 25 U.S.C.A. § 3601(6) (West Supp.1994) (“Congress and the Federal courts have repeatedly recognized tribal justice systems as the appropriate forums for the adjudication of disputes affecting personal and property rights[.]”)

The Divers are members of the tribe and were employed as custodians in the tribal school on the reservation. The tribe has inherent sovereign authority to regulate tribal members’ conduct and the tribe’s employment relationship with the Divers. See EEOC v. Fond du Lac Heavy Equip. & Constr. Co., 986 F.2d 246, 249 (8th Cir.1993) (dispute between tribal member and tribal employer should be resolved internally within tribe, and Age Discrimination in Employment Act does not apply absent clear and plain congressional intent); see also Tibbetts v. Leech Lake Reservation Business Comm., 397 N.W.2d 883, 887-88 (Minn.1986) (tribal sovereign immunity bars application of state workers’ compensation statute to tribal employer). This tribal sovereign immunity extends to individual tribal officials acting in their official capacity and within the scope of their authority. See Davis v. Littell, 398 F.2d 83, 84-85 (9th Cir.1968), cert. denied, 393 U.S. 1018, 89 S.Ct. 621, 21 L.Ed.2d 562 (1969) (tribe had sovereign immunity from suit therefore could extend absolute executive privilege to its attorney). Therefore, the Divers’ recourse for the alleged torts of the tribal attorney is through tribal institutions and procedures. See Santa Clara Pueblo, 436 U.S. at 65, 98 S.Ct. at 1680-81 (recognizing the competence of tribal judicial process).

The district court correctly concluded that there are no facts here showing that the tribe expressly waived its sovereign immunity and consented to suit. See Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509-10, 111 S.Ct. 905, 909, 112 L.Ed.2d 1112 (1991). A waiver of sovereign immunity “ ‘cannot be implied but must be unequivocally expressed.’” Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. at 1677 (citations omitted).

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Diver v. Peterson
524 N.W.2d 288 (Court of Appeals of Minnesota, 1994)

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Bluebook (online)
524 N.W.2d 288, 1994 Minn. App. LEXIS 1194, 1994 WL 664000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diver-v-peterson-minnctapp-1994.