The Eighth Circuit will be hearing Amerind v. Malaterre shortly. The appellant’s brief is here (amerind-appellant-brief). Our previous posting, with the district court materials and opinion, and the Turtle Mountain appellate court opinion is here. [Disclosure--I was a sitting appellate judge for the tribal court, but I did not participate in this matter.]
This case is a case to watch because it is a candidate for Supreme Court review under Montana v. United States. Maybe not a great candidate, but anything’s possible in the Roberts Court when it comes to tribal court jurisdiction over nonmembers.
Amerind is an insurance company chartered under federal law (according to my understanding, which could be wrong) that insures tribal housing. This case involves a fire at Turtle Mountain. Plaintiffs sued the Turtle Mountain Housing Authority, which was insured by Amerind. During the tribal court proceedings, the housing authority dropped out as a defendant, leaving Amerind as the insurance company and sole defendant. I suspect there is much confusion on the question of whether an insurance company can be a named defendant as a replacement for the real defendant (or alleged tortfeasor), since it is usually the insurance company that handles the defense and even hires the lawyers. Amerind, like any insurance company, is looking for an out.
Amerind is the real party in interest, if the court reaches a judgment against the housing authority, since the insurance company will end up paying. But what Amerind is doing here is saying (read the the brief where they say it — amazing) that it has sovereign immunity. Huh? Amerind is an insurance company, not a sovereign. Other insurance companies have made this mistake, too, defending a suit against a tribal insured with the tribe’s immunity, thinking that maybe the immunity even extends to the insurance company. Well, the tribal court didn’t buy it. Here’s the excerpt from the Amerind brief:
Amerind then moved the Tribal Court to dismiss Malaterre’s amended complaint because NAHASDA did not permit direct action claims against Amerind and Amerind did not waive its sovereign immunity from suit. J.A. 000123–0137. The Tribal Court, however, rejected Amerind’s challenge. J.A. 000086–087.
But Amerind has a different theory — the tribal court didn’t have jurisdiction over it because it is a nonmember under Montana v. U.S. Amerind’s argument appears to be exceptionally weak, since it is an insurance company whose sole existence is related to defending claims in tribal court (and other courts). And so it likely will lose in the Eighth Circuit. But then again, so did Plains Commerce Bank, and all you need is four Justices to vote to grant cert….