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Bradley v Bear

Case No. 104,080 (KS Ct. App., Jan. 20, 2012)

Nancy Sue Bear claims the Brown County District Court did not have jurisdiction to dissolve the family partnership and then partition and order the sale of real estate that she and her family, all enrolled members of the Kickapoo Nation Tribe, had farmed on the Kickapoo Reservation. Indian tribes are domestic dependent nations that exercise inherent sovereign authority over their members and territories. Because all of the parties to their action are enrolled members of the Kickapoo Nation Tribe and all of the land is located within the Kickapoo Reservation, we hold that the tribal court is the proper forum for resolving this dispute. It is a matter of sovereignty. We reverse the judgments of the district court and remand the matter with directions to dismiss the case.

The facts are undisputed.



Kathy Ann Bradley, Patti June Gibbs, Debra Lynn Whitebird, Barbara Jean Weaver, Raymond C. Schuetz, and Nancy Sue Bear are the adult children of Robert and Geraldine Schuetz, now both deceased. At the time of their deaths, the Schuetzes owned the fee simple absolute title to several tracts of real estate all located within the Kickapoo Nation Indian Reservation. By conveyance and then descent proceedings filed in the Brown County District Court, the Schuetz children became owners of undivided interests in the real estate as tenants in common. The children operated the real estate under an oral partnership known as Schuetz Farms. The farming operations all took place on the real estate on the reservation. The Schuetz children are all members of the Kickapoo Indian Tribe.

Then, in 2002, all the Schuetz children, except Bear, asked the Brown County District Court to dissolve the partnership, order an accounting, and partition all of the partnership property. We will refer to the Schuetz children who filed the lawsuit as the Plaintiffs. Bear was opposed to this and was a named defendant. The Plaintiffs alleged that they and Bear had operated Schuetz Farms since 1992, but that there was no formal partnership agreement, only an oral agreement. The Plaintiffs described the assets of Schuetz Farms as the real estate and some items of personal property. The Plaintiffs requested that the court (1) enter judgment against Bear for sums due to each plaintiff after an accounting of the partnership money and (2) partition the real and personal property of the partnership (or if partition could not be made, appraise, advertise, and sell the property). In response, Bear admitted the existence of the partnership but denied many of the allegations contained in the petition.
 

 

Judge(s): Stephen Hill
Jurisdiction: Kansas Court of Appeals
Related Categories: Business Organizations , Civil Procedure , Civil Remedies
 
Trial Court Judge(s)
James Patton

 
Court of Appeals Judge(s)
Gordon Atcheson
Stephen Hill
Melissa Standridge

 
Appellant Lawyer(s) Appellant Law Firm(s)
Brian Johnson Johnson Law Office PLLC

 
Appellee Lawyer(s) Appellee Law Firm(s)
William McQuillan

 

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manifest injury to the property and interested parties. the commissioners therefore and property located on the reservation. specifically, the tribal code provides that even article v, 1 (j) of the kickapoo nation tribal constitution grants the kickapoo barbara jean weaver, and morrill and janes bank and trust company, we note also that the tribal code establishes the territorial jurisdiction of the treaties of the tribe and "over all general civil claims which arise within the tribal p.3d 1269 (2004), where the tribal court had already asserted jurisdiction over a land [citation omitted.] parties cannot confer subject matter jurisdiction by consent, waiver, or in gesinger v. gesinger, 531 n.w.2d 17, 20 (s.d. 1995), the south dakota the court explained its reasoning. employees of the potawatomi tribal emergency services and topeka air ambulance, position of indians in contemporary society: 15, 2004. chain of title and the merchantability of real estate. we will look at each in turn. provides for the maintenance of law and order and the administration of justice by real estate, farming operation, and the parties in this case were located in brown county, 4081-jar, 2007 wl 1424305, at *1-3 (d. kan. 2007) (unpublished opinion). many of the allegations contained in the petition. court ultimately ordered that the property be sold at a sheriff's sale. an advertisement was matter jurisdiction. see bear v. patton, 364 f. supp. 2d 1242, 1244-46, (d. kan. 2005), nation tribal code for guidance. court shall first apply the kickapoo nation tribal constitution, statutes, and common 5. 04. specifically, the potawatomi law and order code provided that (1) the tribe had diepenbrock's cause of action occurred on tribal property, and the court indicated that the 4 on march 1, 2010, the district court ordered the partnership dissolved and ordered defendants. reversed and remanded with directions. noting the purchase agreement at issue involved members of the tribe and the real and first, the district court did not rely upon title ix, 4(e) when reaching its 5 apply the law of any state that would be cognizable in the courts of general jurisdiction. partnership property was sold by the brown county sheriff on june 15, 2004. the facilities. 33 kan. app. 2d at 104-05. members, and the tribal court provided a forum and remedies to redress any alleged then in nielsen v. brocksmith land & livestock, inc., 321 mont. 37, 40-42, 88 to hear and decide a particular type of case. 2 civil jurisdiction under this section 4 shall not be applied so as to set aside or redetermine fashion not inconsistent with tribal law, the rules of the court, and the indian civil rights show that a state district court lacks jurisdiction to decide a civil matter between indians court "may exercise jurisdiction over any person or subject matter on any basis consistent boundaries of a reservation. bear claims the brown county district court lacked subject matter jurisdiction to confines of the kickapoo reservation as defined under the treaty of may 18, 1854, and decision. second, the plaintiffs have not provided this court with a copy of this provision for the first time, on june 15, 2004, bear asked the district court to dismiss the the brown county district court had jurisdiction over the case at hand unless it was of the tribal court and infringe upon its right to govern itself, noting potawatomi tribal sheriff from "serving process on lands federally recognized as the reservation of the kickapoo reservation, and all of the farming partnership activities took place on the to the kickapoo nation tribe due to kickapoo nation tribal code, title ix, 4(e). the proceedings. in other words, since the tribal code had no specific laws on the point, the granting partition or, alternatively, dismissal of the case for lack of subject matter establishing courts on the reservation and defining their duties and powers. protected by treaty with the united states. [citation omitted.] the inherent sovereignty 2. diepenbrock's widow, as the personal representative of diepenbrock's estate, sued then, in 2002, all the schuetz children, except bear, asked the brown county over a civil action between a father and son because the dispute involved a "'reservation possessed by indian tribes allowed them to form 'their own laws and be ruled by them.' claim, that does not confer subject matter jurisdiction on the state court. we hold the the reservation and defining their duties and powers. granted patton's motion to dismiss bear's case, reasoning that the "rooker-feldman and noted that this property was indeed located on a reservation. bear attached evidence the kickapoo tribal court, had jurisdiction over a civil dispute between indians that undermine the authority of the kickapoo nation tribe by exercising jurisdiction over the the controversy moves to a different court. reversed and remanded to the district court with directions to dismiss the prior indian tribe. article i of the kickapoo nation tribal constitution, approved on february 16, 7 property of the partnership (or if partition could not be made, appraise, advertise, and sell affair.'" the court explained that the cattle in dispute were located on the reservation, the 74, 148 p.3d 538 (2006). nancy sue bear, of the tribal code--although they erroneously claim the copy is attached to their the kickapoo nation tribal code of civil procedure states that the tribal court law recognizes a "preference for tribal sovereignty and jurisdiction or deference to the the plaintiffs thereafter asked the court to order the sheriff to deliver the deeds authority in turn. case. the court explained that the kickapoo nation tribal code does not address the whether the tribal court had jurisdiction would be conducted first in the tribal court. 33 supreme court held that a tribal court had both subject matter and personal jurisdiction all questions arising in this appeal are questions of law. a court must be vested "the jurisdiction of the kickapoo tribe shall extend to the territory within the of the sales. lacks subject matter jurisdiction to hear a particular matter may be raised at any time. does not provide a specific procedure to resolve a case, the court may proceed in any hill, j.: nancy sue bear claims the brown county district court did not have determine the case below and that the order for partition and sale of the real and personal (or evidence in this record) that the sale was not a bona fide sale. nevertheless, this court the land is located within the kickapoo reservation, we hold that the tribal court is the appeal from brown district court; james a. patton, judge. opinion filed january 20, 2012. violation of rights. the dispute could be resolved without parties outside the reservation jurisdiction of the state district court, and (2) it is sound public policy to keep real estate proceedings (dissolution of partnership, partition and sale of property) for lack of court has the proper jurisdiction to determine a tribe member's interests in real property farmed on the kickapoo reservation. indian tribes are domestic dependent nations that we turn now to some caselaw. in kansas, this court dealt with a tribal court's that indicate the tribal court has jurisdiction over civil matters involving tribe members proper court to resolve this dispute between indians about business performed on the we move now to the two remaining reasons the district court gave for ruling on doctrine" precludes federal jurisdiction when a party who loses in state court seeks appeal by volume and page number may be presumed to be without support in the record. address corporations. the court noted that kansas law does address the establishment and jean weaver. the district court noted that while the kickapoo nation tribal code does deal association" has the capacity to sue or be sued in tribal court. (emphasis added.) title vi, make, not the state court. clearly this is an issue of sovereignty. 301(b). obviously then, partnerships are not totally ignored by kickapoo law. the tribal court had exclusive jurisdiction over civil matters and a determination as to held it had jurisdiction over the matter and that bear's motion to dismiss must be denied. 4. be sold at a sheriff's sale if it could not be partitioned. after examining the property, the after an accounting of the partnership money and (2) partition the real and personal separate and distinct nations inside the boundaries of the state of kansas. indian rights are the kickapoo nation tribal constitution. tribal court had no jurisdiction to decide the case. we therefore look to the kickapoo plaintiffs claim this section of the tribal code provides: tribes are sovereign nations that exercise sovereign authority over their members and may exercise jurisdiction over any person or subject matter on any basis consistent with tribal court over matters concerning their members and their territories." 33 kan. app. 2d an accounting of partnership assets. that same day, the district court directed the closings contain the language cited by the plaintiffs. the plaintiffs have failed to persuade us that otherwise, the state court proceeding would rob the tribal court of its sovereignty. other than diepenbrock, which is distinguishable from this case for several going deeper into the matter, even if the tribal court had ruled as the plaintiffs authority over all land within the reservation, (2) the tribal court had express jurisdiction partition if the tribal court found it compatible. that is the judgment the tribal court must this court exercises unlimited review. diepenbrock v. merkel, 33 kan. app. 2d 97, 98, 97 real estate on the reservation. the schuetz children are all members of the kickapoo brown county district court, the schuetz children became owners of undivided interests property. the commissioners' evaluation was approved by the district court. the district with the united states. the inherent sovereignty possessed by indian tribes allows the the parties to their action are enrolled members of the kickapoo nation tribe and all of 12 personal property at issue were located on the reservation. along the same line, the court estoppel, nor can parties convey jurisdiction on a court by failing to object to its lack of "effective for all land that has been or is purchased by the tribe, exclusive tribal tribal council the power to govern the conduct of indians on the reservation and kathy ann bradley, patti june gibbs, debra lynn whitebird, barbara jean be presumed to have the jurisdiction to resolve this dispute, not the state district court. apply the law of any state or jurisdiction that the tribe finds compatible with the public jurisdiction to dissolve the family partnership and then partition and order the sale of real all of these rulings push us to the conclusion that the kickapoo tribal court is the jurisdiction upon itself for public policy reasons. "subject matter jurisdiction is vested by jurisdiction over tort claims arising from injuries related to the gaming facilities, and (4) we examine two matters raised by the plaintiffs. [citation omitted.]" 33 kan. app. 2d at 98-99. property is therefore a null and void judgment. bear argues the kickapoo nation tribal involved "'internal tribal matters'", and the district court was therefore barred from court explained that the tribe's constitution and code confer subject matter jurisdiction their quotation is accurate. proper forum for resolving this dispute. it is a matter of sovereignty. we reverse the tribal court extends to all territory defined in article i of the kickapoo nation tribal tribal law. see 321 mont. at 40-44. "'indian tribes are "domestic dependent nations" that exercise inherent sovereign whether the dispute arose from activities occurring on the reservation, for example, are jurisdiction. 8 nations inside the boundaries of the state of kansas. indian rights are protected by treaty subject matter jurisdiction is vested by statute and establishes the court's authority at 103. the court next reasoned that accepting jurisdiction would undermine the authority considering the dispute where parties were tribe members and the property involved in the fee simple absolute title to several tracts of real estate all located within the kickapoo jurisdiction over civil matters in diepenbrock. the court first explained the unique authority over their members and territories.' [citations omitted.] indian reservations are does not address (1) the creation and dissolution of partnerships and (2) partition placed in the local newspaper notifying the public that a sale would take place on june pertinent for determining jurisdiction. subject matter jurisdiction is created by statute, not when dismissing bear's case in tribal court. the record contains no evidence of any tribal 234 kan. 507, 508-09, 672 p.2d 607 (1983). subject matter jurisdiction is vested by if there is no tribal law that governs the particular legal issue before the tribal court, and bills of sale. prior to a ruling on this request, bear sued james a. patton, the district tribes to form their own laws and to be ruled by them. factors such as whether the parties involved in the dispute are members of the tribe and bruce bechtold and jay bechtold, there is no connection between the state's ability to tax a particular piece of real property jurisdiction. [citation omitted.]" bruch v. kansas dept. of revenue, 282 kan. 764, 773- creation and dissolution of partnerships or provide for the partition of property, it does 10 appellees, commissioners determined that partition was impractical and could not be made without maintenance of law and order and the administration of justice by establishing courts on real property was subject to state ad valorem taxation, so must be subject to the and case and cancel the sale of the partnership property, arguing the court lacked subject nation indian reservation. by conveyance and then descent proceedings filed in the dispute, the court rejected the claim that the state district court had proper jurisdiction, does not address partition proceedings. we find this reasoning flawed because it over all persons located or doing business on the reservation, (3) the tribal court had appellate brief. third, the copy of title ix, 4(e) this court was able to obtain does not we give the legal context of our analysis. the dispute was located on the reservation and owned by the tribe. in that case, the court 11 freely alienable, a state may impose ad valorem taxes upon that real property. see in re community, and resolution of the dispute required the interpretation and application of second, the idea that all real estate matters should be determined in state court for appellate review of a state court's judgment in federal court. the federal court explained noted that any material factual statement made without being keyed to the record on as the retention of real estate records in one location helps establish a "chain of title" and stayed proceedings in the matter until a ruling could be made in the federal case. 6 cannot consider the application of title ix, 4(e) for three reasons. jurisdiction over land located on the kickapoo reservation. the federal district court act. title vi, 12. jurisdiction. bear asserted the matter could not be determined by the brown county the district court granted the plaintiffs a partition and appointed a panel of requested that the court (1) enter judgment against bear for sums due to each plaintiff schuetz farms as the real estate and some items of personal property. the plaintiffs can merely follow the kansas law dealing with the dissolution of partnerships and 1. 14 provided an appraisal value for each tract of real property and each piece of personal kickapoo nation tribe purchased some of the real property, while bear purchased turning to the facts of the case, diepenbrock, a patron of harrah's prairie band article v, 1 (j) of the tribal constitution grants the kickapoo tribal council the bankers surety co., 290 kan. 247, syl. 19, 225 p.3d 707 (2010), our supreme court the case. the district court agreed and dismissed the case, reasoning the events occurred we examine the district court's ruling. next, the plaintiffs claim the kickapoo tribal court relied upon title ix, 4(e) plaintiffs. bear was opposed to this and was a named defendant. the plaintiffs alleged in francis v. dana-cummings, 962 a.2d 944, 948-49 (me. 2008), held a civil dispute kathy ann bradley, patti june gibbs, debra lynn whitebird, william r. mcquillan, of troy, for appellees kathy ann bradley, patti june gibbs, and barbara law specifically provided for tribal jurisdiction in the situation. 33 kan. app. 2d at 103- entity or official." title ix, 4(e). we therefore look to other jurisdictions, where the issue has been touched upon in the p.3d 1063 (2004). v. 1 3 context of determining whether a court must give comity to another court's judgment. law does not provide a specific procedure to resolve a case, the court may proceed in any 9 indian tribes are domestic dependent nations that exercise inherent sovereign three tracts of the real property sold at the sheriff's sale and there has been no allegation weaver, raymond c. schuetz, and nancy sue bear are the adult children of robert and belongs to the tribe or is located on the reservation. a state court cannot confer district court to dissolve the partnership, order an accounting, and partition all of the the court next reasoned that because the real property at issue was subject to ad lack of subject matter jurisdiction, arguing the tribal court had exclusive jurisdiction over absence of subject matter jurisdiction. bickford, 234 kan. at 509. a claim that the court district court erred in determining that the brown county district court, as opposed to proceedings conducted or decisions made by a court are legally void when there is an was located within kickapoo territory and the kansas district court therefore lacked 747 (d. mont. 1993), where the court stated that tribal courts are appropriate forums for in red fox v. hettich, 494 n.w.2d 638, 642 (s.d. 1993), the south dakota reservation and land located on the reservation. most important here is that all of the 1937, and amended on october 10, 1980, sets the jurisdiction: kingsley, 288 kan. at 395. whether jurisdiction exists is a question of law over which policy and needs of the tribe. title vi, 11 (a). the tribal code states that when tribal act. the facts are undisputed. on tribal property. by inference. the property). in response, bear admitted the existence of the partnership but denied brian r. johnson, of johnson law office, of lawrence, for appellant nancy sue bear. the record on appeal indeed shows that the kickapoo nation tribe purchased district court but must be decided in tribal court. on march 13, 2008, the district court appellant, oral partnership known as schuetz farms. the farming operations all took place on the matter jurisdiction over the real estate. bear claimed the kansas enabling act excludes kan. app. 2d at 104. the court finally noted that a gaming compact between the in the real estate as tenants in common. the children operated the real estate under an in turn, the kickapoo nation tribal code of civil procedure states that the tribal hiawatha, kansas, conservator of raymond c. schuetz, partnership agreement, only an oral agreement. the plaintiffs described the assets of constitution. title ix, 3. the tribal code provides that the tribal courts shall have reservation. if this court is to uphold the concept of sovereignty, then the tribal court must law; if there are none, the court shall apply federal law; if there is none, the court shall by the kickapoo nation tribal constitution, statutes, or common law, the court may that they and bear had operated schuetz farms since 1992, but that there was no formal a fair reading of the district court's opinion reveals the court's primary reason for statute and establishes the court's authority to hear and decide a particular type of action. with" the kickapoo nation tribal constitution. kickapoo nation tribal code of civil exercise inherent sovereign authority over their members and territories. because all of indian land from the territorial boundaries and civil jurisdiction of the state of kansas in federal court, bear asked that judge patton be enjoined from exercising bear argues both the kickapoo nation tribal constitution and kansas caselaw statute and establishes the court's authority to hear and decide a particular type of case. federal court to vacate a state court decision. the federal court decided it lacked subject court lacked territorial jurisdiction to adjudicate a tort between an indian and non-indian estate that she and her family, all enrolled members of the kickapoo nation tribe, had held the actions that led to the dispute occurred on the reservation and involved tribe the tribal code also states that "every person, corporation, partnership, or incorporated record-keeping purposes completely contradicts the long-standing principle that indian son was a member of the tribe living on the reservation, and the agreement regarding the compatible state law may be applied to resolve the issue if it so chooses. the tribal court this case instead of deferring to the tribal court. the district court reasoned that (1) the authority over their members and territories. indian reservations are separate and distinct judgments of the district court and remand the matter with directions to dismiss the case. in the court of appeals of the state of kansas casino, suffered a heart attack while at the casino located on the reservation. whether it has subject matter, personal, and territorial jurisdiction over a matter. the disregards other provisions of the kickapoo nation tribal constitution and tribal code with corporations, it does not address the creation and dissolution of partnerships and were a state when it came to tort claims arising from injuries to patrons of the gaming fashion not inconsistent with tribal law, the rules of the court, and the indian civil rights matters in state court because the retention of records in one location helps establish a and the state's subject matter jurisdiction over civil matters that arise from that property. located on the reservation. upon a tribal court. 494 n.w.2d at 643-44. the court ultimately determined that the tribal jurisdiction." title ix, 4. section 8 of title ix states that if any dispute is not covered no. 104,080 to such other lands as may be hereafter added thereto under any law of the united states." commissioners to partition the property at issue, with the proviso that the property would general civil jurisdiction over all civil actions arising under the constitution, laws, or supreme court stated that whether a tribal court has judicial jurisdiction depends on tax grievance application of kaul, 269 kan. 181, syl. 7, 4 p.3d 1170 (2000). even so, on appeal, this court affirmed the district court's decision for three reasons. the vacated and remanded 451 f.3d 639, 640-43 (10th cir. 2006); bear v. patton, no. 04- kingsley v. kansas dept. of revenue, 288 kan. 390, 395, 204 p.3d 562 (2009). partnership property. we will refer to the schuetz children who filed the lawsuit as the court proceeding, and the plaintiffs have failed to provide an appropriate citation that the kickapoo nation tribal code of civil procedure states that when tribal law procedure, title vi, 2. the tribal code further provides that in civil cases, the tribal involved a partnership operated and located on the reservation. would permit this court to obtain that record. in national bank of andover v. kansas first, if land on the reservation is owned in fee simple, that is to say, the land is have jurisdiction over all disputes involving real estate regardless of whether the property the "merchantability" of real estate. jurisdiction to sell the land. the court explained that this request essentially asked the syllabus by the court part on the holding in cropmate co. v. indian resources intern. inc., 840 f. supp. 744, 3. back in state court, bear once again asked for relief from the court's judgment 13 in part because the tribal court lacked authority to regulate the tortious activities of non- before atcheson, p.j., hill and standridge, jj. geraldine schuetz, now both deceased. at the time of their deaths, the schuetzes owned dissolution of partnerships and the partition of property. the court said that because the we review several kickapoo laws and some cases on indian law. of a temporary restraining order (in an unrelated case) enjoining the brown county the court first reasoned that the brown county district court would not court then reasoned that it is sound public policy to keep real estate matters in state court, indians on state highways. 494 n.w.2d at 646-47. kickapoo tribe" because he lacked jurisdiction over the land. despite bear's motion, the territories. it would be contrary to both law and public policy to conclude that state courts with subject matter jurisdiction in order for it to properly act in a case. state v. bickford, power to govern the conduct of indians on the reservation and provides for the involving a dispute over land located on the reservation. we review each source of on appeal, the plaintiffs argue this court may not set aside the sale of real property valorem taxation by law, the property must be subject to the state court's jurisdiction. the potawatomi nation and state of kansas provided that the tribe would be treated as if it reasons, kansas case law provides little guidance on the question presented in this appeal. precluded from exercising such jurisdiction because of tribal sovereignty. court first reasoned that the most "critical fact" was that all events surrounding parties are enrolled members of the kickapoo tribe, all of the land is located within the court judge presiding over the matter, in federal court. the brown county district court inc. for the wrongful death of her husband. the defendants moved to dismiss the suit for an otherwise bona fide sale of land to the tribe under a sale by a non-tribal governmental cattle was executed on the reservation. 531 n.w.2d at 20. the gesinger court relied in certain tracts; bear purchased all the personal property that was sold. the exclusive adjudication of disputes over transactions taking place within the concluding it had jurisdiction over this case was that the kickapoo nation tribal code that in bear's federal complaint, she had asked for a declaratory judgment that her land


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