Justices Disagree with Tribal Judge

Justices Disagree with Tribal Judge

Carol Berry
5/31/11

A tribal court judge did not enjoy sovereign or judicial immunity when he became embroiled in a controversy over attorneys’ fees, a three-judge panel of the U.S. 10th Circuit Court of Appeals ruled May 27.

The dispute began some four years ago after a partner of Crowe & Dunlevy P.C. (Crowe), Michael McBride, was acting as legal counsel to Thlopthlocco Tribal Town, a federally recognized Indian Tribe in east-central Oklahoma and a tribal town of the Muscogee (Creek) Nation, which is also a federally recognized tribe.

Nathan Anderson, a member of the Thlopthlocco business committee, the tribal town’s governing body, in 2007 “attempted a coup d’etat, declared himself the only valid leader, and purported to appoint a new government,” according to court accounts of statements by McBride, who represented Thlopthlocco tribal town in Muscogee (Creek) Nation District Court.

The other Thlopthlocco members sought and were granted a temporary injunction, asserting that Anderson and his allies had interfered with its business interests by accessing the tribal town’s bank accounts, issuing regulations on tribal letterhead, and meddling with contractual relationships with a number of third-party providers.

After a hearing, the tribal court lifted the injunction and dismissed the complaint, holding that it did not have jurisdiction to hear the dispute, but the Muscogee (Creek) Nation Supreme Court reinstated the injunction and said the tribal town members, like residents of a state in relation to the federal government, could appeal to the Nation’s courts.

Anderson and his allies claimed to be the true representatives of Thlopthlocco and alleged nine tribal members had violated the Thlopthlocco Constitution by unlawfully adopting six people as tribal members and permitting them to vote, while Anderson allies had been prohibited from voting and attempts had been made to strip Anderson of his authority as town king.

A dispute arose over attorneys’ fees and eventually Gregory R. Stidham, a judge of the Muscogee (Creek) Nation District Court ordered Crowe to return almost two years’ worth of legal fees to its client, the Thlopthlocco, “who did not want them,” court records state.

After back-and-forth litigation, and faced with a contempt of court action, the Crowe firm filed for a preliminary injunction that was granted by the federal District Court despite a challenge by Stidham, who said the Muscogee (Creek) Nation judiciary cannot be sued because of sovereign immunity. Stidham also said Crowe failed to show irreparable harm would occur without an injunction.

Stidham appealed to the 10th Circuit, which ruled that he did not have the authority to order the Crowe firm to return legal fees it already had earned and said that neither sovereign nor judicial immunity applied.

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